ibrahim mohamed hassan vs awadh said nkanatila 2001 tzhc 17 1 november 2001

IN T H E HIGH COURT OF TANZANIA (d a r e s s a l a a m d i s t r i c t REGISTRY) A T D A R E S SALAAM C I V I L A P P E A L NO. 112 O F 1 996 I B R AHIM M P H A M E D H A S S A N A-' A P P E LLANT VERSUS A W A D H S A I D NKANATILA ..... R E S P O N D E N T JUL£ I N G This appeal w h i ch was filed in +->-•=■ , «- m ing o f the H o n . P H M on T / 1 9 9 6 in ch™ - * Wvi^Cjje m . W m k . In that ruling, the c Z J Z - Tj^Tt ^ and */ ** • bv n -.h n , 4.- y Public auction a v ^ n au ordereci be attached s i t u a t e d o n P l o t N O * 1 0 5 Blnrlr U 'q s * va. area m K in o n d o n i D istrict i n order- t■, 3 K* S ° g ° w aaji n tgeeda iin n ffa v o u r * o f, t ^ e ■rv^rr'r^ovi-*- •- 7 a deCre° of the saTO * T , “ ir'-^nuen^, one Avacm Said Nkanatila a sra j^f rh Judgment D e b t o r ,, ocn, *1 i! MM b u m a , n p A3 Bho t, ls • the o m e r of the cne The appellant is non appealing against that * » S « - a l ^ „ e r of A t t o r n e v iS .4ed to L > T " Hassan of Mtimbo village. ‘ Person called Mohamed the a p p e a l c.^e u p f o r h e aring, the l e a r n e d c o u n s e l for - r e s p o n ent Hr. L.,oba, s o u g h t p e r m i o s i o , be h o . r d fi, ,t i n r e s p e c t o f p r e l i m i n a r y o b j e c t i o n s on p o i n t s o f law. He p r e y e d h i s a r g e n t * «ay of writ t e n submissions. Ih6 a p p e l l M t ^ ^ ^ ^ Pr el 'Ihe “ CO“’5el f°r reSPO“dent ^ ^ * * * « of ■ eliminary Objection in his b i t t e n submission. Those m l . (D The order appealed from is not an appellable order. (2) The memorandum of appeal has been annexed with d oc um e nt s l e gally not required to be annexed thereto, also enabling provisions of l a w are cited on the M em orandum of Appeal. It is the submission of the learned counsel for the respondent which agree with that the appeal contravens Order H m n a e 1 (1) of the CPC 1966 which m a n d a t o r y require a Memorandum of Appeal to be accomparaed by a copy of the decree appealed from and unless the court dispenses therewith, a copy of the judgment on which it is founded. Instead, the appellant, offending the above cited provision of law, has provision of law, had attached other documents which are strange to the original case. In addition, the appellant has cited provision of law purporting to he enabling provisions of law under which the appeal was brought, w hich are enabling provisions for a chamber summons and not those of a memorandum of appeal. Order XXI -ale 57, Order XXXVII and order XXXIX of the CPC so cited cover Chamber Summons and not memorandum of appeal. liiC parties to the case the appellant is appealing against are one Awadhi Said Nkamatila and Ali Mbunda. The appellant Ibrahim Mohamed Hassan xs a stranger to the original case. He has present:bly jumped in the shoes of Ali M b u n d a through a Power of Attorney which is annexed to the Memorandum of Appeal. But the power of attorney is challenged by Mr. bba _or being unregistered. For all intents and purposes it cannot be inforced in law. .So.rutmg of the Power/Attorney also rejpcels that it has been issued by a person other th a n All hbunda, who is a party to the original case and b" l'hOGC behalf tlle present appellant is supposed to appear. T /° r ^ r e a B O n ’ 11 is ** E n d i n g that the appellant lacks the necess.^y and he is therefore incompetent to file the appeal. The appeal lacks merits and is hereby dismissed. The respondent shell have his costs. Sgd: M o l „ MUHO, JUDGE 1/11/2001 I certify that this is a true copy of the original. F.SoKo Mutungi DISTRICT REGISTRAR 10/4/2002