abubakar ali himid vs edward nyelusye 2017 tzca 139 28 july 2017

abubakar ali himid vs edward nyelusye 2017 tzca 139 28 july 2017

The appeal was struck out because the record of appeal was incomplete and improperly constituted, contravening Rules 96(1) and (4) of the Tanzania Court of Appeal Rules, 2009. The Court held that neither Rule 2 nor Article 107A(2)(e) could be invoked to cure such fundamental defects, and procedural rules must be observed for the proper administration of justice.

Citation
abubakar ali himid vs edward nyelusye 2017 tzca 139 28 july 2017
Parties
Appellant: Abubakar Ali Himid; Respondent: Edward Nyelusye
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
28 July 2017
Procedural Posture
Civil Appeal / Ruling on Competence of Record of Appeal and Related Applications
Outcome
appeal and applications struck out
Legal Topics
Record of Appeal, Procedural Compliance, Amendment of Appeal Record, Striking Out Incompetent Appeals
Source Language
English
Civil Procedure Appellate Practice Record of Appeal Procedural Compliance Amendment of Appeal Record Striking Out Incompetent Appeals

Case Brief

Summary, issues, holding and outcome

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Parties

Abubakar Ali Himid

Appellant

Edward Nyelusye

Respondent

Procedural Posture

Civil Appeal / Ruling on Competence of Record of Appeal and Related Applications

Legal Issues

  1. 1 Whether the record of appeal is competent under the Tanzania Court of Appeal Rules, 2009
  2. 2 Whether the Court should allow amendment of the record of appeal or use the original record to hear the appeal
  3. 3 Whether procedural rules can be relaxed under Rule 2 and Article 107A(2)(e) to save the appeal

Ratio Decidendi

The appeal was struck out because the record of appeal was incomplete and improperly constituted, contravening Rules 96(1) and (4) of the Tanzania Court of Appeal Rules, 2009. The Court held that neither Rule 2 nor Article 107A(2)(e) could be invoked to cure such fundamental defects, and procedural rules must be observed for the proper administration of justice.

Court Disposition

appeal and applications struck out

Orders

  • The record of appeal is struck out for incompetence.
  • Civil Application No. 196 of 2013 and Civil Application No. 240 of 2013 are struck out as they have no basis after the appeal is struck out.