NATIONAL BANK OF COMMERCE v METHUSELA MAGONGO 1996 TLR 394 (CA)

 

NATIONAL BANK OF COMMERCE v METHUSELA MAGONGO 1996 TLR 394 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Mnzavas JJA, Mfalila JJA and Lubuva JJA

B

CIVIL APPEAL NO 30 OF 1994

2 December 1996

(From the ruling and order of the High Court of Tanzania at Mwanza, Munyera, J.) C

Flynote

Court of Appeal Rules - Record of Appeal not incorporating an extract of the order

appealed against - Whether appeal is competent - Rule 89 of the Court of Appeal

Rules, 1979. D

-Headnote

At the commencement of the hearing of this appeal it transpired that the record of

appeal did not incorporate the order of the High Court appealed against:

Held:

E (i) Under rule 89(1)(h) of the Court of Appeal Rules, 1979, it is mandatory

for the record of appeal to contain copies of the documents listed therein one of

which is the order appealed against;

(ii) Since the record of appeal does not incorporate the order appealed

against the record is incomplete and the appeal is incompetent.

Case Information

Appeal struck out. F

Cases referred to:

1. Abdul Aziz Ali Salim v Hafsa Saleh Mahmoud, CAT, Civil Appeal No. 4

of 1992 (unreported)

2. Euroconsult (Africa) B.V v French & Hastings, CAT, Civil Appeal No.

20 of G 1996 (unreported)

Banturaki, for the appellant

Kahangwa, for the respondent

[zJDz]Judgment

Lubuva, JA: H

At the commencement of the hearing of this appeal following the court's prompting it

transpired that the record of appeal was not complete. That is, the record of appeal

did not incorporate an extract of the order of the High Court dated 2 August 1990

appealed I against. When called upon to address the court on this point, Mr

Banturaki, learned counsel for the appellant was appar-

1996 TLR p395

LUBUVA JA

ently not quite clear on the effect of non-compliance with Rule 89 regarding the

extract of A the order. He seemed to be of the view that as the ruling appealed

against was already part of the record at p 28 of the proceedings, it was not necessary

to have it extracted and itemised in the index. However, on further reflection, he

correctly in our view B conceded that the record of appeal was incomplete contrary

to the provisions of Rule 89(1)(h) of the court's rules. In these circumstances, Mr

Banturaki left the matter for the court to decide.

For the respondent, Mr Kahangwa, learned counsel was brief and precise. He stated

that C the omission to incorporate the extract of the order appealed against was a

violation of a mandatory requirement of Rule 89 of the court's rules. For this reason,

he urged the court to strike out the appeal which, he said was incompetent.

The need for stringent and vigorous adherence to the court's rules in the processing of

D appeals before this court hardly needs to be overemphasised. There is a series of

decisions of this court to that effect. Time and again we have struck out appeals in

which the records of appeal do not incorporate either the decrees or orders appealed

against. Among others see for instance: (1) Abdul Aziz Ali Salim v Hafsa Saleh E

Mahmoud and (2) Euroconsult (Africa) BV v French & Hastings.

In these cases, we struck out the appeals on the ground that the records were

incomplete contrary to the requirement of Rule 89.

In the instant case, the appeal arises from the ruling of the High Court at Mwanza F

(Munyera, J) dated 2 August 1990. Under the provisions of Rule 89(1)(h) it is a

mandatory requirement for the record of appeal to contain copies of the documents

listed therein one of which is the order appealed against. This was not included and

Mr Banturaki had no plausible explanation for it except that he said it was due to an

G oversight. Neither did he apply to be allowed to file a supplementary record in

order to rectify the matter. In view of the mandatory requirement of the Rule 89, a

fact which is as already pointed out was conceded by Mr Banturaki, there is no way in

which we can proceed with this appeal based on an incomplete record. H

Accordingly under Rule 3 of the court's rules, the appeal is struck out. No order as to

costs.

1995

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice of Tanzania

Secretary & Managing Editor

Dr. J.T. MWAIKUSA, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Members

The Hon. Mr. Justice B.A. SAMATTA, Justice of Appeal,

Tanzania Court of Appeal

The Hon. Mr. Justice H.M. HAMID,

Chief Justice of Zanzibar

The Hon. Mr. Justice H.A. MSUMI,

Principle Judge (J.K.) of the High Court of Tanzania

Mr. SHAIDI, Principal State Attorney

Attorney General's Chambers, Dar es Salaam

Mr. A.M. MISKIRY, Senior State Attorney,

Attorney General's Chambers, Zanzibar

Ms. K. ORIYO, Chief Corporation Counsel,

Tanzania Legal Corporation

Mr. S.J. JADEJA, Advocate of the High Court of Tanzania

Mr. B. LUANDA, Registrar, Court of Appeal of Tanzania

Ms. M. SHANGALI, Court of Appeal, Administrative Assistant

Dr. P.J. KABUDI (Assistant Editor),

Senior Lecturer, Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1995] T.L.R.

Judges of the Court of Appeal of Tanzania in 1995

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.S. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

8. The Hon. Mr. Justice D.Z. Lubuva Justice of Appeal

Judges of the High Court of Tanzania in 1995

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice A. Bahati Puisne Judge

12. The Hon. Mr. Justice H.A. Msumi Puisne Judge

13. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

14. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

15. The Hon. Mr. Justice E.P. Moshi Puisne Judge

16. The Hon. Mr. Justice L.A. Kyando Puisne Judge

17. The Hon. Mr. Justice W.H. Sekule Puisne Judge

18. The Hon. Madam Justice E.N. Munuo Puisne Judge

19. The Hon. Mr. Justice J. Masanche Puisne Judge

20. The Hon. Mr. Justice J.B. Mchome Puisne Judge

21. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

22. The Hon. Mr. Justice J.M. Mackanja Puisne Judge

23. The Hon. Mr. Justice J.J. Mkwawa Puisne Judge

24. The Hon. Mr. Justice E.K. Mwipopo Puisne Judge

25. The Hon. Mr. Justice E.N. Rutakangwa Puisne Judge

26. The Hon. Mr. Justice J.H. Msoffe Puisne Judge

27. The Hon. Mr. Justice A.C. Mrema Puisne Judge

28. The Hon. Madam Justice A. Bubeshi Puisne Judge

29. The Hon. Mr. Justice S.N. Kaji Puisne Judge

Judges of the High Court of Zanzibar in 1995

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

3. The Hon. Mr. Justice M.L.K. Kannonyele Puisne Judge

4. The Hon. Mr. Justice W. Dourado Puisne Judge

Cases Reported

1995 TLR p1

A