JUMA IBRAHIM MTALE v K.G. KARMALI 1983 TLR 50 (CA)

JUMA IBRAHIM MTALE v K.G. KARMALI 1983 TLR 50 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

2 November 1983

CIVIL APPEAL 11 OF 1983

Flynote

Civil Practice and Procedure - Appeal, Record of - Not containing a copy of the

decree - H Whether appeal competent - R. 89 (2) Court of Appeal Rules.

Civil Practice and Procedure - Appeal - Record not containing decree - Notice of

Motion seeking extension of time to file a supplementary record - Whether notice an

answer to I objection regarding competency of appeal.

1983 TLR p51

NYALALI CJ

-Headnote

On the day of hearing of the appeal, the respondent raised a preliminary objection

that A the appeal was incompetent since the record of appeal did not contain a

decree as required under r.89 (2) of the Court of Appeal Rules. An adjournment was

granted to enable counsel for the appellant to prepare to answer the objection. On the

day when hearing was to continue, counsel for the appellant filed a Notice of Motion

seeking B extension of time to file a supplementary record of appeal.

Held: (i) In the absence of a copy of the decree, the appeal was incompetent; C

(ii) a Notice of Motion seeking an extension of time to file a supplementary

record of appeal was not the proper way to answer an objection regarding the

competency of the appeal.

Case Information

Order accordingly. D

Case referred to:

1. Commissioner of Transport v A.G. of Uganda and Another [1959] E.A.

329

2. Haining and others [1971] E.A. 421 E

S.El - Maamry for the appellant

M.A. Lakha for the respondent

[zJDz]Judgment

Nyalali, C.J. read the following order of the court: When this appeal came on for F

hearing on 2/11/1983 Mr. Lakha, learned Advocate for the Respondent raised an

objection to the effect that the appeal was incompetent as the record of appeal did not

contain a decree as required under Rule 89 (2) of the Tanzania Court of Appeal Rules,

1979. As no notice of this preliminary objection had been given as required under

Rule G 100, we granted an adjournment to enable Mr. El. Maamry, Learned

Advocate for the appellant to prepare himself to answer the objection.

When the adjourned hearing came on for continuation today, Mr. El-Maamry had

filed a H Notice of Motion seeking extension of time to file a supplementary record

of appeal. He however conceded that the Notice of Motion is not an answer to the

objection raised by Mr. Lakha regarding the competency of the appeal now before

this Court. Furthermore, he concedes that unless this Court holds that the absence of

the decree in the record of appeal is immaterial, the I

1983 TLR p52

Court is bound to strike out the appeal leaving the appellant with the option to make

A subsequent appropriate applications seeking to bring back to this court a proper

appeal in the case.

Mr. Lakha in final submission asks this court to strike out the appeal and dismiss the

Notice of Motion.

Having considered the submissions made on both sides, and the authorities cited, B

including the case of Commissioner of Transport v A.G. of Uganda & Another [1959]

E.A. 329 and Haining & others [1971 E.A. 421, we are satisfied that this appeal is

incompetent and is hereby struck out and we further direct that the Notice of Motion

now before us be dismissed with costs.

C Order accordingly.

1983 TLR p52

D