YOKE GWAKU AND OTHERS v NAFCO AND OTHERS 1991 TLR 87 (CA)

YOKE GWAKU AND OTHERS v NAFCO AND OTHERS 1991 TLR 87 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Omar JJA and Mapigano Ag JA

4 July, 1991 D

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Record of appeal not

incorporating a formal or extracted order or decision appealed against - Effect - Rule

89(1)(h) Court of Appeal Rules.

Civil Practice and Procedure - Court of Appeal Rules - Record of appeal not

incorporating a formal or extracted order or E decision appealed against - Whether

whole order need be extracted and incorporated.

Court of Appeal Rules - Record of appeal not incorporating a formal or extracted

order or decision appealed against - Effect - Rule 89(1)(h) Court of Appeal Rules. F

Court of Appeal Rules - Record of appeal not incorporating a formal or extracted

order or decision appealed against - Whether whole order need be extracted and

incorporated.

-Headnote

The appellants who had lost a suit in the High Court when appealing against it failed

to incorporate a formal or G extracted order or decision appealed against. Contra the

argument of the respondents that the appeal was incompetent for failure to comply

with an essential step, counsel for the appellants sought to impress on the court that

he was under no obligation to draw up the formal order because he was not appealing

against the whole order H of the High Court but merely against a finding which

formed only a part of the entire order.

Held: (i) Appeal is incompetent for failure to comply with an essential step; I

1991 TLR p88

KISANGA AND OMAR JJA AND MAPIGANO AG JA

A (ii) where a party wishes to appeal against a finding or findings which form

only a part of the whole decision, he is not obliged to draw up the formal order

covering the whole decision. The rule requires him to extract an order corresponding

only to that finding or findings which it is intended to appeal against.

Case Information

B Order accordingly.

Tenga, for the appellants

Umbulla, for the respondents

[zJDz]Judgment

C Kisanga and Omar, JJ.A. and Mapigano, Ag. J.A.: The plaintiffs filed a suit in the

High Court claiming inter alia, a declaration of ownership over an area of land now

held by the defendants under certificate of title No. 5104. In the written statement of

defence the defendants averred, among other things, that the plaintiffs' alleged D

rights over the suit land were extinguished vide Government Notice No. 260 of 1989

in which case the suit disclosed no cause of action, and that this matter would be

raised as a preliminary point at the commencement of the hearing of the suit. When

the suit came on far hearing the point was accordingly raised and arguments centred

E on whether Government Notices Nos. 260 of 1989 and 88 of 1987 which were

relied on as extinguishing the plaintiffs' rights were valid. Ruling on the point, the

High Court (Munuo, J. (Mrs)) found they were, but declined to F dismiss the suit

because there were other grounds on which the suit could proceed to trial.

The plaintiffs were aggrieved by the finding that the said Government Notices Nos.

260 of 1989 and 88 of 1987 G were valid. They accordingly sought and obtained

leave to appeal to this Court against such finding. Upon the appeal coming on for

hearing, however, Mr Umbulla, Counsel for the respondents, took a preliminary

objection that the record of appeal does not incorporate a formal or extracted order to

the decision being appealed against. H This, the learned Counsel submitted,

amounted to failure by the appellants to comply with an essential step, in terms of

rule 89 (1) (h) of the Court of Appeal Rules, as a result that the appeal should be

struck out as being incompetent. In support of that submission he cited two decisions

of this Court in the cases of Arusha International Conference Centre v D.A. Kavishe

Civil Appeal No. 34 of 1988 (Unreported), and Shamsa I Mohamed or Lily Philips v

Halima Mohamed Civil Application No. 2 of 1990 (Unreported).

1991 TLR p89

KISANGA AND OMAR JJA AND MAPIGANO AG JA

He also referred us to decision of the East African Court of Appeal in the case of

Farrab v Official Receiver A [1959] E.A. 5 at p.10.

Dr. Tenga appearing for the appellants conceded the omission which he attributed to

inadvertence on the part of his colleague who had prepared the record of appeal.

However the learned Counsel went on to submit that the omission to incorporate the

formal order was harmless because it did not prejudice the respondents who were

fully B aware of the decision being appealed against, and which decision was indeed

in their favour. We could find no merit in the submission. Such an argument could

be advanced in all the cases, including those cited above, concerning this point but it

would make no difference. The rule is not really based on the requirement that the

C respondent should be aware of the decision being appealed against. For, even

where the actual judgment or decision being appealed against is incorporated in the

record this would not meet the requirements of rule 89 (1) D (h). The point is that

this is essentially a technical rule which indeed causes some injustice, for instance, to

a party who has to incur double expenses to prepare the record of appeal a second

time But so long as the rule is not amended or superseded it has to be complied with.

Relying on an obiter dictum in Shamsu's case cited above, the learned Counsel

contended that this rule may be E departed from in the exceptional circumstances of

this case, the exceptional circumstance being that the order in this case was duly

extracted but inadvertently omitted to be incorporated in the record of appeal. We

think that F this is a very weak argument. For, even if we were minded to consider

the obiter dictum expressed in Shamsu's case above cited, we are quite satisfied that

Counsel's mere inadvertence to incorporate the formal order in the record of appeal

could not, by any stretch of imagination, amount to be exceptional circumstance.

And finally the learned Counsel appeared to contend that in any event there was no

obligation on his part to draw G up the formal order because he was not appealing

against the whole order of the High Court; he was merely appealing against a finding

which formed only a part of the entire order. Once again, we are unable to sustain

this submission. A decision may consist of one or more findings, and an aggrieved

party may choose to appeal against H the whole decision or against certain findings

forming only a part of the whole decision. We think that where, as in this case, a

party wishes to appeal against a finding or findings which form only a part of the

whole decision, he is not obliged to draw up the formal order covering the whole

decision. In our view the rule requires him to I

1991 TLR p90

A extract an order corresponding only to that finding or findings which it is

intended to appeal against.

In the present case the Court order was for refusing to dismiss the suit on the ground

that although the Government B Notices Nos. 260 of 1989 and 88 of 1987 were

found to be valid, nevertheless the suit could not be dismissed or not disclosing cause

of action because there were other grounds on which the claim could proceed to trial.

It was therefore open to the appellants to draw up the order in relation only to the

finding that the said Government Notices were valid.

C In the result the preliminary objection is upheld. The appeal is accordingly struck

out as being incompetent. No order for costs is made as the appellant is under legal

aid.

Appeal dismissed.

1991 TLR p90

E