Mariam Abdallah Fundi v Kassim Abdallah Farsi 1991 TLR 196 (CA)

 

MARIAM ABDALLAH FUNDI v KASSIM ABDALLAH FARSI 1991 TLR 196 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Ramadhani JJA and Mnzavas JJA and Mapigano Ag JA

B 3 December, 1991

Flynote

Civil Practice and Procedure - Appeal rules - Memorandum of Appeal to High Court not accompanied by copy of decree C appealed from - High Court proceeds to hear and determine appeal - Whether appeal properly before High Court.

-Headnote

This case involved a dispute based on sale of a house. The plaintiff appellant won the case in the District Court and lost it on appeal to the High Court by the defendant/respondent. On appeal to the Court of Appeal it was argued that the memorandum of appeal to the High Court was not accompanied by a copy of the decree appealed from as required by O.XXXIX R.1(1) of the Civil Procedure Code, 1966. E Held: (i) O. XXXIX R.1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from and that where an appellant has failed to comply with this provision the appeal is not properly before the court and must be dismissed; F (ii) the learned judge ought to have dismissed the appeal which must be treated as having been null and void.

Case Information

Appeal allowed.

Marando, for the appellant.

[zJDz]Judgment

Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: The appellant, Mariam Abdallah Fundi, is a minor whose affairs have been conducted through her next friend, one Rajabu Alli Hamidi. The respondent, Kassim Abdallah Farsi, was the brother and now is the administrator of the estate of Fatuma Abdallah Farsi who died H intestate on 14th November, 1988. Before her death the deceased had entered into a contract for the sale of her house Plot 52 Block "K" in LINDI to the appellant for Shs. 300,000/=. On 16th August, 1988 the contract was signed by the parties and a down I payment of Shs. 30,000/= was made (Exh. A). Then on 12th September, 1988 an instalment of Shs. 120,000/= was paid by the appellant through Mr Hamidi (Exh. B). However, before the appellant finished paying and before A she obtained possession, the deceased died. The appellant then sought to complete paying the contract price to the respondent and so to come into possession of the house but the latter refused to receive payment and would rather refund the money paid. The District Court of Mtwara decided in favour of the appellant who was then the plaintiff. The present respondent appealed to the High Court where he succeeded. This now is an appeal from that decision. 

Before us the appellant was represented by Mr Marando, learned C advocate. He had four grounds of appeal. But we feel the appeal can be disposed of on the first ground. Mr Marando submitted that the memorandum of appeal to the High Court was not accompanied with a copy of the decree as required by O.XXXIX R.1(1) of the Civil Procedure Code, 1966. D The respondent, on the other hand, appeared in person and, as a layman, did not advance any counter argument. But even if he were represented, his counsel would have had an unenviable task because that order provides: E Every appeal shall be preferred in the form of memorandum signed by the appellant or his advocate ... The memorandum shall be accompanied by a copy of the decree appealed from .... It has been held a number of times: F That 0.39, R.1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and that where an appellant has failed to comply with this provisions, the appeal is not properly before the G court and must be dismissed. Munshiran & Co. v Star Soda Water Factory [1934], 16 K.L.R. 50 which was followed in Kotak Ltd. v Kooverji (1967) E.A. 348.  

The learned judge in this appeal overlooked that fact and went ahead to determine the appeal which was not H properly before him instead of dismissing it. So what is now the position? We must treat as done that which ought to have been done. The learned judge ought to have dismissed the appeal but did not. We must treat the appeal to have been null and void. We are then left with the judgment of the District Court which was in favour of the appellant. Incidentally, we have made two observations in our perusal of the record. One, Exh. A and Exh. B have not been B stamped. But this is not fatal as the stamping could legally be made subsequently. Secondly, the house being on a registered land its disposition would require the consent of the commissioner for Lands. After saying so, we allow the appeal with costs.

Appeal allowed.

1991 TLR p198

D