GRACE FRANK NGOWI v DR. FANK ISRAEL NGOWI 1984 TLR 120 (CA)

GRACE FRANK NGOWI v DR. FANK ISRAEL NGOWI 1984 TLR 120 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Makame JJA and Kisanga JJA

August 14, 1984

CIVIL APPEAL NO. 9 OF 1984 C

Flynote

Civil Practice and Procedure - Appeals - Failure to serve copy of application for

record of appeal - Whether appeal time barred - Rule 83(2) of Tanzania Court of

Appeal Rules, 1979. D

Civil Practice and Procedure - Appeals - Effect of failure to serve notice of appeal and

memorandum and record of appeal - Rules 77 & 90 of Tanzania Court of Appeal

Rules, 1979.

Civil Practice and Procedure - Appeals - Effect of omission of letters and exhibits

produced at trial but not reflected in record of appeal - Rule 89(1)(c) & k of Tanzania

Court of Appeal Rules, 1979. E

-Headnote

The respondent had made an application to strike out the appeal filed by the appellant

on the ground that some essential step in the proceedings in the appeal has not been

taken or has not been F taken within time, in terms of the Tanzania Court of Appeal

Rules, 1979.

Held: An appeal would be struck out where no satisfactory explanation is given as to

why the various rules of the Tanzania Court of Appeal Rules, 1979, were not

complied with. G

Case Information

Application granted.

No case referred to H

P.M. Jonathan, for the appellant

F.B. Mahatane, for the respondent

[zJDz]Judgment

Mustafa, J.A.: delivered the following judgment of the court: Mr. Mahatane for the

respondent has made an application to strike out the appeal filed by the appellant on

the I

1984 TLR p121

MUSTAFA JA

A ground that some essential step in the proceedings in the appeal has not been

taken or has not been taken within time, in terms of Rule 82 of the Court of Appeal

Rules. Mr. Mahatane submitted 5 grounds in support of his application. He

contended that the appeal is time barred in terms of Rule B 83 as the appellant was

not entitled to exclude the time required for the preparation and delivery of the

record from computation as the appellant had not sent a copy of the application for

the record copy to the respondent in terms of Rule 83(2). Secondly, he submitted that

up to now no notice of appeal has been served on his client, in contravention of Rule

77. Thirdly, the record of appeal was C not served by the appellant on the

respondent. He stated that his client came to know of the appeal on 7th August,

1984, from friends and came to Court and obtained a court copy of the appeal record

at the Arusha District Registry. The appellant's failure to serve the memorandum and

record D of appeal offends Rule 90.

The fourth complaint by Mr. Mahatane refers to the absence of the payment of

security for costs of the appeal in contravention of Rule 114.

E The fifth and final ground refers to the defective and insufficient record filed.

There was an amended petition in the course of the trial, and such amended petition

was not reflected in the record. There were a number of letters and exhibits

produced at the trial and no copy of such exhibits was reflected in the record. This

offends Rule 89(1)(c) and (k) and in the absence of such F documents it is not

possible to properly determine the appeal.

In reply Mr. Jonathan for the appellant admitted all these allegations. As regards the

failure to serve the notice of appeal and the memorandum and record of appeal, he

stated that a Mr. Minja of the G Arusha District Registry had offered to serve the

respondent, but had failed to do so. As regards the non-despatch of a copy of the

application for a copy of the record to the respondent, he stated he had inadvertently

omitted to do so. In any event, he submitted, as regards these three lapses on his part,

no prejudice could have been caused to the respondent.

H In regard to the defective and insufficient records, he stated that he was supplied

the said record by the District Registry. It was an oversight that the copies of the

exhibits and the amended petition were not included in the record.

I As regards non-payment of the security for costs, he stated that he was doubtful if

such was necessary, and stated that, if ordered by the court, such payment would be

made.

1984 TLR p122

We are satisfied that Mr. Mahatane's grounds of complaint are valid. Mr. Jonathan

has not given A any satisfactory explanation as to why the various rules of the Court

of Appeal Rules were not complied with. In the circumstances we strike out the

appeal. As this refers to a matrimonial matter, in the exercise of our discretion, we

make no order as to costs. B

Application granted.

1984 TLR p122

C