felix tumbo kisima vs tanzania telecommunication co ltd as a successor to tanzania posts and telecommunications corporation 1998 tzca 10 23 november 1998

IN TEE COURT 07 APPEAL OF TANZANIA AT M E ES SALAAK (CORAM: BAMADHANIAg.^ C . J ^ MFALIMX J.A/X And_LUGAON6IS/\J.A. ) CIVIL APPEAL NO. 12 OF 1997 BETWEEN FELIX TUMBO KISIKA ........... ... ... ..... APPELLANT AND TANZANIA TELECOMMUNICATION CO. LTD. AS A SUCCESSOR TO TANZANIA POSTS AND TEL3COKI4UNI CATIONS CORPORATION . RESPONDENT (Appeal from the Judgement of tlie High Court of Tanzania at Dar es Salaam) (Kyando, J .) dated the 2*fth April, 199^ in Civil Case Ncu 17.7 of J986 RULING OF^THE CCURT HFALILA,_ J ?A^: The appellant Felix Tumbo Kisima, launched this appeal against Tanzania Telecommunication Company Limited as successor to his erstwhile employers the defunct Tanzania Posts and Telecommunications Corporation. The appeal relates to the judgement of the High Court of Tanzania at Dar es Salaam in Civil Case l'o. 177 of 1986 in which the appellant's suit for wrongful termination of his services against the Tanzania Posts and Telecommunications Corporation was dismissed with costs. Before to-day's hearing, the respondent, filed a notice of preliminary objection against the appeal on two grounds. Firstly, that the appeal is incompetent beeause the appellant has not to-date served the respondent with ropies of the memorandum and record of appeal. _ 2 » Secondly, that no leave of this honourable Court was soug- granted to join the Tanzania Telecommunications Company as a j. in this appeal. And at the hearing of this appeal, Hr. Muj^ulizi learned counsel for the respondent, argued in support of the preliminary objection that the respondent was not served with the notice of appeal, rather the notice was served on its predecessor the defunct corporation and that, therefore, it should have been served under Kule 80 after the completion of the formalities of making it a party to the appeal under nule 85 (2). Mr. Mujtdizi added that because the respondent was not served with the notice of appeal, it did not comply with Rule 79; consequently it was not served with the memorandum and record of appeal under Rule 90 which made this appeal incompetent. Secondly Mr. Kujulizi argued that the respondent as successor to the original respondent could only be made a party to the proceedings with the leave of the Court under Rule 85 (2). Accordingly he prayed that the appeal be struck out for being incompetent. In reply Mr. Ngalo learned counsel for the appellant, conceded the correctness of the grounds of the respondent’s preliminary objection, but he asked this Court to give him a chance to rectify the shortcomings cited so that the hearing of the appeal can proceed on merits. We are obviously in sympathy with the predicament in which Mr. JMgalo finds himself, but this is the most we can do. All the rules with which he failed to comply are mandatory provisions. He v/as required to serve before or within seven days of lodging the memorandum and record of appeal copies of these documents on the respondent. He was also required to seek and get leave of the Court * * before making the respondent a party in this appeal. Non compliance with these provisions makes this appeal incompetent hence there is nothing before us which, we can order to be rectified. Accordingly we uphold the preliminary objection and order that this appeal be struck out for incompetence. We also make an order for costs in favour of the respondent. DATED AT DAR ES SALAAM THIS 23r~d DAY OF Nov^mbpr, 1998. A.S.L. RAMADHANI Ag.^ CHIEF JUSTICE I.. M. MFALILA JUSTICE (>.;•' APPEAL K.S.K. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy of the original ( A.Gf. MWARIJA ) DEPUTY REGISTRAR