Mnzavas, J.A.: In this application the applicants are seeking an order by this Court that the Notice of Appeal filed by the respondent be struck out because some essential step in the proceedings has C not been taken and/or has not been taken within the prescribed time as required by r 77(1) of the Court of Appeal Rules 1979.
Secondly Mr Mbezi, learned Counsel for the applicants, submitted that the respondent did not serve the applicants with a copy for the letter he wrote to the Registrar seeking to be supplied with a copy D of the proceedings of the High Court as stipulated under r 83(2) of the Rules.
Elaborating on the argument that the provisions of r 77(1) of the Court of Appeal Rules were not complied with the learned Counsel told the Court that the respondent filed his Notice of Appeal in E Court on 10 June 1992 and that the Notice of Appeal was served on the applicants on 2 October 1992 and that the Notice of Appeal was served on the applicants on 2 October 1992, about four months from the time it was filed in Court on 10 June 1992. It was submitted that this was contrary to F the provisions of r 77(1) which required the respondent to serve the applicants with the Notice of F Appeal within seven days after the lodging of notice in Court.
As for the provisions of r 83(2) of the Court of Appeal Rules Mr Mbezi argued that the advocate, Mr Marando, who represented the respondent, did not send a copy of the letter he wrote to the Registrar Gseeking for copy of proceedings to the applications; and that this omission went counter to the provisions of r 83(2) of the Rules.
The respondent in his counter affidavit argued that he in fact served the respondents with copy of Notice of Appeal but he inadvertently forgot to ask them to affix their signatures on the copies of the H Notice of Appeal. The applicants filed a counter affidavit denying that they were served with copy of the notice.
On the allegation that the respondent did not send to the applicants copy of the letter he wrote to the Registrar seeking for a copy of the proceedings in the High Court the respondent swore a counter I affidavit to the effect that his advocate, Mr Marando, sent him
A many copies of the letter he wrote to the Registrar seeking to be supplied with copy of proceedings in the High Court and that he served the applicants with copies of the letter. Mr Mbezi, learned Counsel for the applicants countered in his affidavit denying `having been served with any copy of Mr Marando's letter as alleged in para 4' of the respondent's counter affidavit and `put Mr B Jamal, the respondent in strict proof thereof'.
Mr Rutagatina who represented Mr Marando for the respondent did not have much to say regarding the applicant's assertion that the provisions of r 77(1) and r 83(2) of the Court of Appeal Rules had C not been complied with by the respondent. In concluding his submission the learned Counsel said: `My Lord if this Court finds that the two essential steps were not taken I pray that the respondent be entitled to reliefs as they stand by the decision of the High Court. We also pray that we be excused from costs.'
D After hearing both parties I am satisfied that there is constraining force in this application. If the respondent's argument as deposed by Mr Mpoki who at one time acted on behalf of Mr Marando for the respondent is to be believed one would have expected him to approach the advocates for the applicants, after he had discovered that they had not signed the notice in acknowledgement of E receipt and ask them to sign them. This, he did not do. Secondly I am not convinced by the argument that an advocate would by an oversight forget to ask the person served with a Notice of Appeal with any other important legal documents of similar nature to sign copy of the document in F acknowledgement of receipt.
On the evidence I agree with the learned Counsel for the applicants that the mandatory provisions of r 77(1) of the Court of Appeal Rules were not complied with.
G Coming to the argument that the respondent did not send copy of his application to the Registrar for copy of proceedings in the High Court to the applicants it is amply clear from the letter Ref MNM/SHARIFF dated 24 September 1992 written by Mr Marando, Counsel for the respondent, to the Registrar asking to be supplied with a copy of proceedings that it was only copied to the respondent, H Shariff Jamal. In the copy sent to Mr Shariff Jamal Mr Marando says to him - `Please follow up'.
The letter does not show that it was copied to the applicants. Nor does it show that Mr Jamal was asked to bring to the notice of applicants the contents of the letter. From the contents of the letter the I words - `Please follow up' merely urged Mr Jamal to follow up the application in the High Court.
Mr Jamal's mere deposition in his counter-affidavit that he received many copies and that he served A some of them to the advocates of the applicants has been denied by the learned Counsels.
This Court will not be entitled to believe the bare assertion by the respondent that he received many copies of the application to the Registrar and that he served the applicants with copies of the B application without proof of such service. There is a long and unbroken chain of authorities by this Court that non-compliance with the provisions of r 77(1) and r 83(2) of the Court of Appeal Rules nullifies a Notice of Appeal or an appeal. See the decisions of this Court in D P Valambhia v Transport Equipment Ltd (1), Mohamed Raza Azizi and Another v Akberal Habib Hassanal (2) and C Grace Frank Ngowi v Dr Fank Israel Ngowi (3) to mention but only a few of the decisions.
In the event the Notice of Appeal is clearly incompetent as some essential step has not been taken D and/or has not been taken within the prescribed time. The Notice of Appeal is accordingly struck out.
As for Mr Rugagatina's prayer that this Court makes an order that the respondent is entitled to the reliefs as found by the High Court it would be improper for this Court to deal with a matter which is not properly before it.
Mr Rutagatina's prayer that his client be excused from paying costs cannot, with respect, be E entertained. The law is that the party who wins in a suit is entitled to have his costs unless there are exceptional circumstances to the contrary. There are no such exceptional circumstances in this case. F
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