HJ STANLEY & SONS LIMITED v ALLY RAMADHANI KUNYAMALE 1988 TLR 250 (HC)

 HJ STANLEY & SONS LIMITED v ALLY RAMADHANI KUNYAMALE 1988 TLR 250 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

17 December, 1988

Flynote

Civil Practice and Procedure - Appeal - Memorandum of appeal not accompanied by copy of decree - Effect - Order 39 Rule 1(1) of the Civil Procedure Code.

-Headnote

Believing that it would take a long time to obtain a copy of a decree, counsel for the appellant filed and presented his memorandum of appeal without a copy of the decree.

Held: (i) It is mandatory that a memorandum of appeal be accompanied by a copy of the decree - Order 39 Rule (1) C.P.C.

(ii) where a memorandum of appeal is not accompanied by a copy of the decree, there is no legal presentation of the appeal at all and so the appeal is incompetent and should be dismissed.

Case Information

Appeal dismissed.

Cases referred to.

1. Stanley Kalawa Mariki v Chihiyo Kwisiya w/o Nderingo Ngomuo [1981] TLR 143. B

2. Konak Ltd. v Kooverji [1967] EA 348.

Tarimo, for the Appellant.

[zJDz]Judgment

Maina, J.: The respondent, Ali Ramadhani Kunyamale, successfully sued the appellant, H.J. Stanley & Sons C Limited, at the Bagamoyo District Court, for a piece of land. The appellant was dissatisfied and he has appealed to this court.

At the commencement of the hearing of the appeal, the appellant raised one point and that is that as the memorandum of appeal was not accompanied by a copy of the decree the appeal should be dismissed. Apparently, the appellant made the submission under Order 39 Rule I(1) of the Civil Procedure Code which provides as follows:

Every appeal shall be preferred in the form of memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf. The memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded.

The requirement that a memorandum of appeal be accompanied by a copy of the decree is mandatory. That is clear from the above provision of the law. Mr. Tarimo said that he did not get the copy of the decree and so he thought he would have to wait for too long to obtain a copy of the decree. So he filed the appeal without attaching a copy of the H decree with the memorandum of appeal. As I have said, it is mandatory that a memorandum of appeal be accompanied by a copy of the decree.

In the case of Stanley Kalawa Mariki v Chihiyo Kwisiya w/o Nderingo Ngomuo [1981] TLR 143 the Court of Appeal cited the above provision of the Civil Procedure Code and said as follows: 

The combined effect of these provisions, in so far as is applicable to the present case is that on appeal from an order of the Court, the memorandum of appeal shall be accompanied by a copy of the order appealed from. But the memorandum of appeal in the instant case was not so accompanied. The established practice of our courts hasnbeen that where a memorandum of appeal is not accompanied by a copy of the order appealed from, this renders the appeal incompetent. On that ground, the purported appeal in the present case ought to have been dismissed accordingly.

This court is bound to follow the decision of the Court of Appeal. In the present case, like in the Stanley Kalawa case, no copy of decree accompanied the memorandum of appeal. That is a clear non-compliance with Order 39 Rule 1(1) of the Civil Procedure Code. Those provisions are mandatory as the court of Appeal said.

As this court said in Konak Ltd v Kooverji [1967] EA 348 where a memorandum of appeal is not accompanied by a copy of the decree, there is no legal presentation of the appeal at all and so the appeal is incompetent and should be dismissed.

Having found that the appeal is incompetent, I do not find it necessary to go into the grounds of appeal raised by Mr. Tarimo for the appellant.

Appeal dismissed.

1988 TLR p252

G