AT DODOMA

(CORAM: KEREFU. J.A.. FIKIRINI. J.A. And MASOUP. J.A.l

CIVIL APPEAL NO. 114 OF 2022

CITIBANK TANZANIA LIMITED 1st APPELLANT

GEOFREY DANIEL MCHANGILA 2nd APPELLANT

VERSUS

GAPCO TANZANIA LIMITED 1st RESPONDENT

ALCHEMIST ENERGY TRADING DMCC 2nd RESPONDENT

(Appeal from the Ruling and Order of the High Court of Tanzania
(Commercial Division), at Dar es Salaam.

(Nanqela, J.^

dated the 13th day of December, 2021

in
Miscellaneous Commercial Application No. 126 of 2021

RULING OF THE COURT

12th &18th February, 2025

FIKIRINI, J.A,:

The appellants, Citibank Tanzania Lin ked and Geofrey Daniel

Mchangila are dissatisfied with the ruling and order of the High Court of

Tanzania (Commercial Division) dated 13th December, 2021. As a result,

she has approached this Court with nine grounds of appeal.

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 Messrs. Gaspar Nyika and Audax Kahendaguza Vedasto, learned

counsel, appeared before the Court representing their respective parties

on the date scheduled for the hearing.

Before the hearing could proceed, Mr. Vedasto sought the Court's

indulgence that he be allowed to raise preliminary points of objection.

Mr. Nyika did not oppose this application and the Court granted it.

The first point of objection was that the appeal was incompetent

as it contravened rules 83 (1) and 84 (1) of the Tanzania Court of

Appeal Rules, 2009 (the Rules). The complaint was that the notice of

appeal found on page 319 of the record of appeal was incompatible with

the memorandum of appeal found on page 8, rendering the appeal

incompetent.

Mr. Vedasto also referred the Court to rule 84 (1) of the Rules,

which dictates that parties who participated in the proceedings before

the High Court (the decision of which is subject to this appeal) must be

served with a notice of appeal. Alternatively, upon an ex parte

application, a party may seek permission not to serve the other party. In

this case, the 2nd respondent, Alchemist Energy Trading DMCC, was

mentioned in the impugned ruling but was neither copied nor served.
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Mr. Vedasto referred the Court to the cases of Dr. Salum Ali

Chambuso v. Paulo Elias Maro, Civil Appeal No. 116 of 2021

(unreported), and Andrew Mseul & Others v. The National

Ranching Company Ltd & Another, (Civil Appeal No. 205 of 2016)

[2017] 145 (5th December, 2017; TANZLII), which both considered the

omission of a party's name fatal, rendering the notice of appeal

incompetent. Mr. Vedasto, furthered his submission on service of the

notice by referring the Court to the case of Wilfred Muganyizi

Lwakatare v. Hamis Sued Kagasheki & Another, (Civil Appeal No.

107 of 2008) [2009] T7CA 62 (6th March, 2009; TANZLII).

The second point was that the appeal was time-barred,

considering the ruling was delivered on 13th December, 2021 as

indicated on page 285 of the record. The notice of appeal was lodged on

17th January, 2022 and the appeal itself on 5th April 2022. Pursuant to

rule 90(1), the appeal should be lodged within 60 days. An exception to

this requirement is obtained under rules 90(1) and (3) of the Rules. This

exception can only apply under rule 90 (3) of the Rules, once a letter to

the Registrar of the High Court requesting to be supplied with necessary

documents within 30 days of the ruling has been served to the other
party. In the present appeal, the 2nd respondent was neither copied nor

served with the notice of appeal or the letter requesting to be furnished

with the necessary documents. Mr. Vedasto urged the Court to strike out

the appeal. Referring to the case of Raymond Obed Kitilya v. The

Commissioner For Lands Ministry of Lands, Housing and Human

Settlement & Others, (Civil Appeal No. 85 of 2016) [2022] T7CA 560

(15th September, 2022; TANZLII), where the Court ruled that the appeal

was incompetent and the Overriding Objective Principle could not

remedy the omission.

Third, Mr. Vedasto also contended that the High Court had already

ruled that the appellant either pays or faces imprisonment as a civil

prisoner. Therefore, the Court of Appeal could not alter this decision

under rule 115 of the Rules. Any order by the Court on appeal would be

merely an academic exercise since the appeal has been overtaken by

events.

In reply, Mr. Nyika commenced by admitting that the 2nd

respondent was not served as required under rule 84 (1) of the Rules.

However, this was deliberate, as the 2nd respondent was not affected by

the decision, so he argued that there was no need to serve them. He

further submitted that the appellant would have sought leave from the

Court to exclude the 2nd respondent if necessary.

In addition, Mr. Nyika distinguished the case of Dr. Salum

Chambuso (supra) from the present appeal, arguing that in that case,

the party omitted from the appeal had participated in the proceedings

below, whereas the 2nd respondent in this case, had participated only in

the High Court proceedings.

Regarding the appeal being time-barred, Mr. Nyika argued that the

notice of appeal and letter to the Registrar were timely lodged and duly

served on the 1st respondent, with no need to serve the 2nd respondent,

as the appeal did not affect them. He also acknowledged that, the 2nd

respondent's name was omitted in the notice of appeal but featured in

the memorandum of appeal, thus requesting the Court to allow the

striking out of the 2nd respondent's name, emphasizing that the primary

concern was clearing the name of the CEO of the bank, who was found

to have violated the court order.

In rejoinder, Mr. Vedasto maintained that the 2nd respondent, who

had not been served, appeared to be affected by the decision, as

evidenced by the inclusion of the name in Civil Appeal No. 114 of 2022.
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Also, Mr. Vedasto rejected the argument on the Overriding Objective

Principle, asserting that the principle could not apply to time limitations.

He further submitted that, Mr. Nyika had admitted that no changes

could be made to the High Court decree other than clearing the

appellant's CEO's actions. This exercise, however, was based on the

reasoning behind the original decision, which could not be overturned on

appeal.

After listening to the counsel for the parties' submissions, we are

now invited to determine whether the preliminary points of objection

raised are maintainable.

We would outrightly wish to remark that, the notice of appeal

found on page 316 and the memorandum of appeal on page 8 of the

record of appeal are incompatible. In the notice of appeal, which is

essential to institute an appeal, only the 1st respondent is listed. In

contrast, in the memorandum of appeal, the names of the 1st and 2nd

respondents are both listed. This inconsistency renders the appeal

incompetent.
 After lodging a notice of appeal as governed by Rule 83(1) of the

Rules, thereafter follows service of the lodged notice of appeal. Rule

84(1) regulates service. According to rule 84(1), which provides as

follows:

"84. (1) An intended appellant shall\ before, or

within fourteen days after lodging a notice
o f appeal\ serve copies of it on aii persons
who seem to him to be directly affected by
the appeal; but the Court may, on an ex parte
application, direct that service need not be
effected on any person who took no part in the
proceedings in the High Court."

[Emphasis added]

According to the rule, the intended appellant must serve copies of

the notice of appeal to all persons directly affected by the appeal within

14 days of lodging the notice. Alternatively, the appellant may apply ex

parte to the Court for permission to exclude certain parties from service.

It is clear that the 2nd respondent participated in the proceedings

before the High Court and, as such, should have been served with the

notice of appeal. Mr. Nyika's decision to exclude the 2nd respondent

without obtaining leave from the Court was improper. The Court's role is
to ensure that no unjustified omission occurs or confusion arises in

managing records. This is the rationale behind an ex parte application

seeking leave to omit to serve a party seemingly unaffected by the

intended appeal's outcome.

We think the case of Dr. Salum Ali Chambuso (supra),

distinguished by Mr. Nyika, is relevant. In that case, the appellant

omitted a party who had taken part before the two lower court

proceedings in the appeal before the Court. Mr. Nyika's argument that

the facts in the two cases are different is not disputed. However, we find

that the issue in both cases is not on the number of proceedings a party

took part in, but simply that the parties who took part in the

proceedings subject of the appeal before the Court, their names, did not

feature in the notice of appeal.

In Dr. Salum Ali Chambuso (supra), a party's name was

omitted; likewise, in the present appeal, the name of the 2nd respondent

was omitted. Omitting the party's name means no service of the notice

of appeal or a letter to the Registrar High Court was made. That

contravenes rule 84 (1) of the Rules, which rendered the appeal before

the Court incompetent.

 In the TPB Bank Pic (Successor in Title of Tanzania Postal

Bank) v. Rehema Alatunyamadza & Two Others, (Civil Appeal No.

155 of 2017) TZCA 46 (1st March, 2021; TANZLii) case, we underscored

that the mere fact the case was decided ex parte against the other

parties does not extinguish their involvement or liability as a party in a

suit.

Likewise, the fact that the 2nd respondent could seemingly not be

affected by the outcome of the appeal is not sufficient reason not to

effect service. A valid Court order under rule 84 (1) of the Rules is what

can preclude service to the party who took part in the proceedings

subject of the appeal.

We also perused Andrew Mseul's case (supra). Although the

facts are slightly different, we associate ourselves with the decision on

the competence of the appeal. In that decision, the Court ruled out that

the appeal was incompetent since a notice of appeal was defective for

failure to illustrate who those "others" are. In the appeal before us, the

notice of appeal is defective for omitting the name of the 2nd respondent

who took part in the proceedings before the High Court, rendering it

incompetent.
 We noted a good gesture by Mr. Nyika of coming clean, admitting

that the 2nd respondent was not served deliberately. He argued that the

outcome of the appeal would not have affected the 2nd respondent. With

due respect to the learned counsel, omitting a party who took part in

the proceedings requires a Court order as stipulated under rule 84 (1) of

the Rules. Since no such order was sought and granted, the choice

made was detrimental, rendering the notice of appeal defective.

Furthermore, failure to serve the 2nd respondent with a notice of

appeal and a letter to the Registrar requesting the necessary documents

automatically prevented the appellant from enjoying the benefit of the

exclusion of time spent waiting for the requested documents from the

Registrar. According to rule 90(1), the notice of appeal should be lodged

within 30 days from the ruling date. If all the documents are ready, an

appeal should be lodged within 60 days of the ruling date unless there is

compliance with rule 90 (1), which could benefit the party under rule 90

(3) of the Rules by being issued with a certificate of delay.

By any stretch of imagination, an appeal lodged on 5th April 2022,

was well past the 60 days and without a certificate of delay, there is no

excuse. Mr. Nyika's assertion that the 2nd respondent did not need to be
served, as alluded to earlier on, was misguided. This is because the

question of leaving out the 2nd respondent from being served in terms of

rules 83 and 84 (1) of the Rules is not upon the party to determine.

Leave of the Court is required to do so.

Equally, his prayer that he be allowed to strike out the 2nd

respondent's name from the memorandum of appeal, though

appropriate prayer, we consider, has been overtaken by the preliminary

points of objection raised by the respondent.

The failure to comply with mandatory provisions of rules 84 (1), 90

(1), and (3) of the Rules, leading to the appeal being time-barred and

hence deemed incompetent, touches on the jurisdiction of the Court.

The Court can in no way act on the time-barred appeal. We, thus, agree

with Mr. Vedasto and the decision in Raymond Obed Kitilya (supra).

This decision was cited with approval from Mondorosi Village Council

and 2 Others v. Tanzania Breweries Limited and 4 Others (Civil

Appeal No. 66 of 2017) [2018] TZCA 303 (14th December, 2018;

TANZLII), stating that the omission could not be saved with the

application of the Overriding Objective Principle.

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 We have not determined the issue of the validity of the appeal in

the light of rule 115 of the Rules, as raised by Mr. Vedasto, having in

mind that it would entail going through the evidence which exercise

does not fall within the purview of the preliminary objection.

Accordingly, we sustain the preliminary objections raised by Mr.

Vedasto, and struck out the appeal for being incompetent with costs. It

is so ordered.

DATED at DODOMA this 18th day of February, 2025.

R. J. KEREFU
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

B. S. MASOUD
JUSTICE OF APPEAL

The Ruling delivered this 18th day of February, 2025, in the

presence of Mr. Gasper Nyika, learned counsel for the Appellant also

holding brief for Mr. Audax Kahendaguza Vedasto for the 1st Respondent

and in the Absence of 2nd Respondent, is hereby certified as a true copy

of the original.