YUSUFU MNTAMBO AND OTHERS v MOEZ ALIDINA 1985 TLR 145 (HC)

YUSUFU MNTAMBO AND OTHERS v MOEZ ALIDINA 1985 TLR 145 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

3 December, 1985

CIVIL APPEAL 9 OF 1985 F

Flynote

Civil Practice and Procedure - Appeal - Requirement that a memorandum of appeal

be accompanied by a copy of the order appealed against - What amounts to a copy of

the G order appealed against - 0.40 r. 2, 0.39 r. 1 and s.3 of the Civil Procedure

Code.

-Headnote

Order 40 rule 2 read together with Order 39 rule 1 of the Civil Procedure Code

provide H that in order for a memorandum of appeal to be competent it must be

accompanied by a copy of the order appealed against. The Court considered what

amounts to a copy of the order appealed against.

Held: An order is a separate entity which has to be abstracted from the ruling,

supplied I and exhibited.

1985 TLR 146

MAPIGANO J

Case Information

Order accordingly. A

Cases referred to:

1. Kotak v Kooverji [1967] E.A. 348

2. Warsama and Mohamed v Ibrahim [1971] H.C.D. 78

M. Marando, for the appellants B

M. Raithatha, for the respondent.

Judgment

Mapigano, J.: The appellants are dissatisfied with the decision of the principal resident

magistrate at Kisutu titled Ruling/order and dated 11/2/85, refusing C their

application for temporary injunction, and have come to this court. Mr. Rainthatha

representing the respondent has taken a preliminary point namely that the

memorandum of appeal is incompetent in that it is not accompanied by a copy of the

order appealed from as required by the provision of 0.40 r.2. C.P.C. (as read together

D with 0.39 r. 1 C.P.C.) He has urged this court to strike out the appeal and cited the

decision in Kotak's case [1967] E.A. 348 which he said is on all fours with the present

appeal.

0.39 r.1 is framed in imperative terms. It imposes a mandatory and not a directory

requirement that every memorandum of appeal must be accompanied by a copy of

the E decree appealed from. 0.40 r.2 assimilates the provision of 0.39 r.1 and read

mutatis mutandis it says that in the case of an appeal from an order the memorandum

of appeal must be accompanied by a copy of the order appealed against. By section 3

C.P.C. order is the formal expression of the decision of the court. It is now settled by

several F judicial pronouncements, too many to mention, that the attachment of a

copy of the order appealed from is absolutely essential and that where the appellant

has failed to comply with the provision of 0.40 r. 2 the appeal is not properly before

the Court and must be dismissed. G

Responding, Mr. Marando counsel for the respondent submitted that the Ruling

which is attached to the memorandum of appeal is essentially an order or

incorporates the order appealed from and sufficiently meets the requirement of 0.40

r.2. He made reference to the decision of this Court in Warsama & Mohamed v

Ibarahim [1971] H.C.D. 78. H

In the case just mentioned the appellant obtained an order from the trial court for

vacant possession of their premises. They then duly commenced execution and had

the Court Broker extract shs.1,972/= from the occupant, the respondent, who

happened to be not the tenant. The respondent objected to the execution and it

seems the issues were: I (a) whether the respondent was a statutory tenant; (b)

whether the decree

1985 TLr p147

MAPIGANO J

passed against the respondent was enforceable against him; and (c) whether the sum

of A shs.1,972/= paid to the Court Broker was refundable to the respondent. In its

Ruling the trial court answered all these issues in the affirmative. On appeal to the

High Court at Arusha against that decision, the respondent argued as a preliminary

point, relying on Kotak's case, that the memorandum of appeal having been filled

without a separate B copy of the order appealed from, the appeal was incompetent,

notwithstanding that a copy of the Ruling was attached.

Kwikima Ag. J. was of the opinion that there was no need to draw a separate order,

because, he stated, purporting to distinguish Kotak's case, the learned magistrate had

C incorporated the order in his Ruling which stated at the bottom paragraph that "in

the whole therefore, I rule that the objector is a statutory tenant of the suit premises

and the decree passed against the judgment-debtor is not enforceable against him and

that the payment of shs.1,972/= paid to the Court Broker as a result of the attachment

levied by him should be refunded to the objector". D

With due respect to the learned acting judge, I fail to see on what material respects

that case was distinguishable from Kotak's case. In actual fact it was also the

appellant's argument in Kotak's case that the copy of the Ruling contained also a copy

of the order and the late Hamlyn, J. implicitly accepted the respondent's contention

that an order is a E separate entity which has to be abstracted from the Ruling,

supplied and exhibited. I think the provision of 0.40 r. 2 is plain and clear. It

contemplates a separate copy of the order appealed from.

I can hardly imagine a comprehensive Ruling that does not contain answers or

decisions F on the points raised in an application, and as we know, the summary of

those answers are often to be found at or towards the end of the Ruling and are the

very stuff by which the order that has to be drawn is constituted. If therefore Mr.

Marando's argument is valid then the provision of the rule under consideration will

be rendered trifling if not G nugatory. I understand that procedural rules are

intended to serve as the handmaidens of justice and not to defeat or frustrate it, and it

cannot be denied that the strict application of the rule in question may in certain

cases amount to a mere legal formalism. However, I do not feel that I have a mandate

to disregard the omission to attach a separate copy of the order to the memorandum

of appeal. H

In the event, the preliminary point is sustained and the appeal is dismissed. The

respondent will have his costs in this court.

Delivered before the advocates.

I Order accordingly.

1985 TLR p148

A