Kisanga, J.A.: Mr. D'Souza, the advocate for the applicant, had filed a notice of motion (Civil Application No. 5 of 1987 - Zuffer Kamarali v Yunus Elias) asking this G Court for an order of stay of execution of judgment in the Arusha High Court. Notice of the intended appeal was duly given before the filing of the notice of motion.
On the day set for hearing the notice of motion, however, Mr. D'Souza had filed yet H another application to withdraw his notice of appeal. Arguing in support of the latter application, he stated that there was no rule under the Court of Appeal Rules which specifically provided for withdrawal of notice of appeal in civil matters, but submitted that the Court would be entitled to grant the application under r. 3(1) and (2)(a) of the I Rules. The relevant parts of that rule say:
(1) The practice and procedure of the court in connection with appeals and intended A appeals from the High Court, and the practice and procedure of the High Court in connection with appeals to the Court shall be as prescribed in these Rules, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interests of Justice. B
(2) Where it is necessary to make an order for the purposes of
(a) dealing with any matter for which no provision is made by these Rules or any other written law; C
(b) ....
(c) .....
the Court may, on application or on its own motion, give directions as to the procedure to be adopted or make any other order when it considers necessary. D
Like Mr. D'Souza, I have not been able to discover any rule in the Court of Appeal Rules which specifically allows the withdrawal of a notice of appeal in civil matters. The nearest provision I could find is r. 95(1) which allows an appellant to withdraw his E appeal any time after instituting the appeal but before it is called on for hearing. However, it is apparent that that subrule could not apply here because no appeal has been instituted in terms of r. 83. Nor could I make an order in terms of r. 84 (a) to the effect that Mr. D'Souza is deemed to have withdrawn his notice of appeal because Mr. F D'Souza assures me that the specified period for instituting the appeal has not run out in that the Deputy Registrar has not yet supplied him with a copy of the proceeding which Mr. D'Souza applied for.
Yet I think it would be unfair to deny an appellant the right to withdraw his notice of G appeal. To do that would amount to holding the appellant to the appeal against his wish. That would not make sense, nor would it be just. In the circumstances I am inclined to Mr. D'Souza's view that this is a fit case in which to invoke the provisions of r.3 as set out above. In so doing I take the view that it is fair that where for one reason or another H appellant no longer wishes to proceed with his intended appeal, he should be allowed to withdraw the notice of appeal. It should be borne in mind that it is the appellant himself who freely and voluntarily decided to file the notice of appeal; it is only just that I he should be equally free to withdraw that notice. This view would be in harmony with the
provisions of r. 95(1) which, as stated above, permits an appellant to withdraw his A appeal after instituting it but before it is called on for hearing. For, it would sound almost absurd to say that a party cannot withdraw a mere notice of appeal but that he can withdraw after he has done much more in the matter by taking steps to institute the appeal itself. B
For these reasons I grant the application and order that the notice of appeal filed in respect of the Arusha High Court Civil Appeal No. 39 fo 1987 be marked withdrawn. With that, the notice of motion in Civil Application No. 5 of 1987 to this Court for stay of execution pending appeal is also marked withdrawn. C
Order accordingly.
D
