IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And JUMA,J.A.

CIVIL APPLICATION NO. 1 OF 2014

ATHANAS SIMON…………………………………………………………APPLICANT

VERSUS

KABANGA NICKEL CO. LTD……………………..………………….…. RESPONDENT

(Application for an order to strike out a Notice of Appeal from the judgment and
decree of the High Court of Tanzania
at Bukoba)

(Luanda, J.)
dated the 28th day of February, 2008
in
Civil Case No 4 of 2002
-----------
RULING OF THE COURT

16th & 19th day of February, 2015

RUTAKANGWA, J.A.:

This application by notice of motion is taken under Rules 89 (2) and

91 (a) of Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant

is moving the Court to strike out with costs the respondent’s notice of

appeal dated 6th March, 2008 “on the ground that no appeal lies and the

respondent has failed to take some essential steps to institute an appeal

within the prescribed time”.

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 In order to appreciate the strength or weakness in law of this

application, we have deliberately decided to reproduce verbatim

paragraphs (2) to (8) of the affidavit in support of the notice of motion.

They read as follows:

“2. That the applicant sued the respondent in the High Court of

Tanzania at Bukoba in Civil Case No.4 of 2002 whereby the

judgment was delivered in favour of the applicant on 28 th

February 2008. The said judgment and decree are all

annexed hereto and marked “A” collectively.

3. That the Respondent indicated her dissatisfaction with the

decision of the High Court by filing a Notice of Appeal on

the 6th day of March,2008 and the Applicant was served

with the same through his Advocate on the 10 th day of

March, 2008. A copy the said Notice of Appeal is annexed

and marked “B”.

4. That the Respondent through his Advocate by a letter

dated 19th March,2008 applied for certified copies of

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 Court records to the Registrar of the High Court of

Tanzania at Bukoba and the said proceedings were

ready and duly certified on 19 th May, 2008 and l personally

on behalf of the applicant obtained the same from the

Court.

5. That after noting the delay we filled an application for

execution which was heard interparties and allowed to

proceed on the 21st of August, 2012. A copy of the ruling is

annexed and marked “C”.

6. That after execution we filed a Bill of Costs the hearing of

which was stayed pending the determination of the

pending Notice of Appeal. The said Ruling is annexed

hereto and marked “D” and the Bill of Costs have been

delayed as a result.

7. That the conduct of the Respondent and her Advocate in

failing to institute the appeal within the prescribed time is

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 an implication that they have withdrawn their notice of

intention to appeal.

8. That on the strength of the above reason it is apparent

that no appeal lies in the Court of Appeal and that, the

Notice of Intention to appeal by the Respondent has lost

its legal validity.” [Underscoring is ours].

The respondent did not file an affidavit in reply. Instead it on 11 th

February, 2015 lodged a notice of preliminary objection challenging the

competence of the application. The gist of the challenge is that this

application is “incompetent in that in terms of the provisions of Rule 91 (a)

of the ...Rules” there is no longer any notice of appeal pending in this

Court worth being struck out since 19th July, 2008. Counsel for the

respondent, Mr. Sinare Zaharani, in his very brief oral submission before

us, after conceding the averments in the supporting affidavit, repeated the

same assertion. To augment his submission, he referred us to our decision

in MRS. KAMIZ A.M.D. KERMAL v. THE REGISTRAR OF BUILDINGS

AND MISS HAWA BAYONA [1988] T.L.R. 199.

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 Counsel for the applicant Mr. Josephat Rweyemamu, contrary to his

explicit averments in paras. 7 and 8 of his supporting affidavit, at first

insisted for his pound of flesh. He was of the view that the application is

competent because the respondent never withdrew its notice of appeal and

as a result the taxation of their Bill of Costs was stayed by the Taxing

Officer on 19th August 2013 pending the finalization of the intended appeal

in this Court, as there was a pending notice of appeal. All the same, after a

brief exchange with the Court he contented himself saying it would make

no difference to him if the notice of appeal is taken to be deemed

withdrawn under Rule 91(a) or struck out under Rules 89 (2) of the Rules

provided he got his costs.

We have found the bane of the applicant to be the proper

interpretation of Rule 91 (a). But we take this to be a self- inflicted injury

for he had provided the solution to this in paragraphs 7 and 8 of his

supporting affidavit. As correctly averred in para. 7, failure “to institute the

appeal within the prescribed time is an implication that they have

withdrawn their notice of intention to appeal”. In addition to this correct

interpretation, he correctly asserts in para. 8 that following this conceded

default, the “Notice of intention to appeal by the Respondent has lost its

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legal validity”. Indeed, this is the thrust of Rule 91 (a). We need then, not

strain ourselves, in the face of this averment. Once a thing loses its legal

validity, then it ceases to exist in law. Now if the notice of appeal is no

longer in existence, how can it be struck out? It is like a decree which has

already been executed; it cannot be stayed. Going by the conceded

averments in paras. 7 and 8 of the affidavit, it is eminently clear that the

applicant put an impeccable construction of Rule 91 (a).

Rule 91(a) reads an follows:-

“91. If a party who has lodged a notice of appeal fails to

institute an appeal within the appointed time.-

(a) he shall be deemed to have withdrawn his notice of appeal

and shall unless the court orders otherwise, be liable to

pay costs of any person on whom the notice of appeal was

served arising from failure to institute the appeal.”

[Emphasis is ours].

We understand that this is not the first time this Rule is coming under

proper scrutiny in this Court. It was a subject of discussion in ELIAS

MARWA V. THE I.G.P. and ATTORNEY GENERAL, Civil Application No

11. of 2012 (unreported). The applicant therein was moving the Court to
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strike out a notice of appeal under the same two Rules as in the present

case. The full Court rejected the relief predicated on Rule 89 (2) because

he had not been served with a copy of the notice of appeal. In relation to

Rule 91 (a), the Court succinctly held thus:-

“Since the effect of default in instituting the appeal is

provided under Rule 91 (a) we find that the respondent’s

notice of appeal should be and it is hereby deemed to

have been withdrawn sixty days after its lodgment.”

The Court did not strike out the notice of appeal since there was no longer

a notice of appeal to be struck out.

We wholly subscribe to the above reasoning and holding which had

earlier on been espoused by the Court in, for instance, MRS. KAMIZ

KERMAL v. THE R.O.B. (supra), ZNZ Civil Application No. 4 of 2006

between EXECUTIVE SECRETARY, TRUST WAKF AND COMMISSION

ZANZIBAR (Administrator of MTENDENI WAKF) and MUSSA

SALLEH ABDALLA and EMIR WILSON DAUD AND ANOTHER V.

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TANZANIA POSTAL BANK, Civil Application No 163 of 2008 ( both

unreported).

In the EXECUTIVE SECRETARY, TRUST WAKF case (supra), this

Court held thus:

“The respondent filed the Notice of Appeal on the

13.12.2002. Apart from this, the respondent has failed to

take essential steps to prosecute the appeal to date…The

respondent has no desire to pursue the appeal and so in

terms of Rule 84(a) of the Court Rules, he is deemed to

have withdrawn the Notice of Appeal. There is therefore

no Notice of Appeal to be struck out. I therefore uphold

the preliminary objection with costs…”

The above reasoning was followed in the EMIR WILSON case

(supra), wherein the Court lucidly reasoned as follows:-

“The catch –word here is “deemed”. In law, this has been

aptly described as a “legal fiction”. Commenting on this

notion, Justice G.P. Singh in his invaluable treatise

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entitled, PRINCIPLES OF STATUTORY

INTERPRETATION on page 31 of the 8th edition, 2001,

has this to say:-

“The legislature is quite competent to

create a legal fiction, in other words to

create a deeming provision for the

purpose of assuming existence of a fact

which does not really exist provided the

declaration of non-existing facts as

existing does not offend the constitution.”

The learned author further observes, at page 302, that

legal fictions may also be created by delegated legislation,

as was the case here and not only by the legislature. “In

interpreting a provision creating a legal fiction, the Court is

to ascertain for what purpose the fiction is created, and

after ascertaining this, the Court is to assume all those

facts and consequences which are incidental or inevitable

corollaries to the giving effect to the fiction,” without

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extending it beyond the purpose for which it was intended,

he further elaborates. See, also:-

(i) EX PARTE, WALTON, IN re LEVY,

(1881) 17 Ch.D. 746 at P.

750,and

(ii) EAST END DWELLING CO. LTD. V

FINSBURY BOROUGH COUNCIL,

[1951] 2 ALL ER 587,at P. 599

(HL).

Through cases as STATE OF BOMBAY V PANDURANG

VINAYAK, AIR 1953 SC 244, AMERICAN HOME

PRODUCTS CORPORATION V. MAC. LABORATORIES

(1986) I SCC 465, C.I.T. V.S. TEJA SINGH, AIR 352,

etc, it is settled law that after the purpose of the legal

fiction has been ascertained, “full effect must be given to

the statutory fiction and it should be carried to its

conclusion” and for that purpose “it would be proper and

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even necessary to assume all those facts on which alone

the fiction can operate.” It is from this perception that the

regularly cited statement by Lord Asquith in the EAST

END DWELLING case (supra) gains great significance.

He said, at page 589, as follows:-

“If you are bidden to treat an imaginary

state of affairs as real, you must surely,

unless prohibited from doing so, also

imagine as real the consequence and

incidents which, if the putative state of

affairs had in fact existed, must inevitably

have flowed or accompanied it – The

statute says that you must imagine a

certain state of affairs; it does not

say that having done so, you must

cause or permit your imagination to

boggle when it comes to the

inevitable corollaries of that state

of affairs”.

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It has long been recognized that it is the public interest

that there should be an end to litigation, so that a decree

holder may enjoy the fruits of the decree in his favour as

soon as possible. It is my settled view that this particular

legal fiction in the Rules was created with this purpose in

mind. Otherwise, a mischievous judgment debtor bent on

frustrating the decree-holder, in the absence of Rule

84(a), would simply lodge a notice of appeal, successfully

apply for a stay of execution order and then take no

further action in the matter. This would, indeed, be

against public policy and the interests of justice. So legal

fictions are created in order to do justice.

Rule 84(a) was included in the Rules to forestall this

situation, i.e. to protect successful litigants from the

machinations of such unscrupulous parties to litigation. So

when an intended appellant fails to institute an appeal

within the prescribed period, the other party, as aptly

held by Lord Asquith, should not “cause or permit” his/its

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 “imagination to boggle when it comes to the inevitable

corollaries of that state of affairs.” He or it must rest

assured that the notice of appeal has been withdrawn; for

even equity treats as done, that which ought to have been

done. The notice of appeal ceased to exist on the sixty

first day.”

We have opted for this long quotation on account of its pedagogical value.

In both instances, the applications to strike out the notices of appeal

which no longer existed were struck out. We have no desire here to depart

from this settled law.

All said and done, we sustain the preliminary objection, as the notice

of appeal sought to be struck out no longer exists. It is deemed to have

been withdrawn with costs to the applicant, upon the expiry of the

prescribed period for instituting the appeal, which was admittedly on 19 th

July, 2008, while this application was lodged and 6 th March, 2014. We

accordingly strike out this misconceived application. However, since it was

the indecisiveness of the respondent which forced the applicant to pursue

this course of action, we shall order each party to bear his or its costs in

this application.

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It is so ordered.

DATED at BUKOBA this 18th day of February, 2015.

E.M.K.RUTAKANGWA
JUSTICE OF APPEAL

N.P.KIMARO
JUSTICE OF APPEAL

I.H.JMA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

E. Y. MKWIZU
DEPUTY REGISTRAR
COURT OF APPEAL

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