20030909 TZHC Arusha

IN THE HIGH COURT OF T:ANZANI.A - AT .ARUSHA CIVIL APPEAL NOi. 8 OF 2002 (Original Mbulu District Court Emp-loyment Cause No. 4 of 2001) HAMAD KIMEA •• o 000 0 It e APPELLANT Versus MANAGER BONITE BOTLERS ARUSHA .• 0 . .-. 0 RESPONDENT J U D G ME N T : ~ In December, 1~99, the appellant Hamad Kimea was employea by the respondent, the Manager Bm:ii te Bpttlers LtcL as a casual worker at Karatu Depot. In May, 2000, when he was busy working at the said depot, a bottle of soda fell down and broke into pieces._ One of _these pieces flew towards his eye and injured it~ He asked the said Manager to assist him so that he may get treated but he refused. Then, he went to the Workers Association a.nd complained about his refusal to do so. After hearing both parties the said Assoc:i..at-iot1: ordered the Manager to assist him.. He complied with this order and the appellant undertook his treatment at Mount Meru Hospitalo When his eye recovered, he reported back to work but the Manager refused to continue emplc;ying him. He sued him in- Mbulu District Court which opened Civil Employment Cause No. 4 of 2001 claiming for a total suni"of shs. 962,800/- as terminal benefits including other expenses. The said court awarded him shs. '1'10,800 out of his total claim of shs. 962,800. At the end of his judgment, the Senior DiS'.t.rict Magistrate ordered that the suit succeeds in the following ==· 2

,., ... items: -1. Salary arrears 62,800/= 2. Transport 18,000/~ , 3. Accommodation 15,000/= 4. Meals 15,000/= Other claims were disallowed on grounds.that being a casual worker, he was not entitled to them. He then appealed to this court in May, 20020 On 28th July, 2003, learned counsel for the respondent Mr. Ngalo raised a preliminary po~nt of law against his appealo He submitted that the appellant did not attach a copy of the decree to his petition of appeal and that as he did not do so his appeal is improperly before the court and it should be dismissed~ He contended that under Order XXXIX, rule 1 (1) or the Civil Procedure Code, 1966, it is mandatory that the· appellant has to attach a copy of the decree to his memorandum of appeal. He referred the court to t!}e case of HoJo Stanley & ~O,!l.S ~§. Vs.,_ Al ~~~2 cth,an:L KUE.Y-~~ls..tl988) _J1LR ~t }:?_ge_s g50 -:-_2?_g. and the case of .--Mariam Abdallah ,,.,_,_.~- -.~-,._,.>,.. Funai Vs. Kassim Abdallah a..,.,,...,,.,:a,o,-,-,. ,.,_ - .. _..., 1'W ~ Fa.r..§i_(1.99jl TIB, at pages 196 - 1980 In the former ca.se the appeal was dismissed by the High Court of Tanzania at Dar es Salaam Registry oh ground that fhe memorandum of appeal had not been accompanied by a copy of the decree •. It was held that it is mandatory that a memorandum of appeal be accompanied by a copy of the decree as per Order XXXIX rule (1) of the

Civil Procedure Code, 19e6, and that where a memorandum of appeal is not accompanied by •••• /3 == 3 - a cor,:r ◊f" ~ e-ecre-e there is no l,egal ~-~t-a:tion -at-· alL and so the appeal is ineompetent and should be dismissed. In the latter case, the Court nf Appeal of Tanzania maintained the same legal position by holding that Order XXXIX rule 1 (1) of the Civil ProcedUre Code, 1966 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from and that where an appellant has failed to comply with this provision, the appeal is not properly before the court and must be dismissed. In this case, the appellant submitted that his memora- ndum of appeal was accompanied by a c.opy of the decree issued by Mbulu District Court.,. Unfortunately, the record of his appeal does not bear him out. As a matter of fact, his memorandum of appeal in this case is not accompanied by a copy of the decree appealed from as required by Order XXXIX rule 1 (1) of the Civil Procedure Code, 1966. Therefore, his appeal is improperly before this col..U't, and I cannot entertain it because it is trite law that where a memorandum of appeal is not accompanied by a copy of the decree or order appealed from as required by Order XXXIX rule 1 (1) of the· Ci~il Proceaure Code, 1966? the appeal has to be dismissedo I hereby dismiss it but each party has:to bear own costs. ~-t:;:----.r-...._ Ao SHll.NGWA.

JUDGE 9/9/2003 •••• /4 r 11 \I. ;j 11 :[ 11 ii ' 1: I :t i 11 :r 4- i =='1 rl I ·I i · Delivered in Open Court at Arush,a in th~ .p.tzesence of the 11 ,, 1· I/ Appellant and in the absence of Counsel :ifOl:' the respondent Ir 11 this 9th day of September, 2003" 1111. •i Ii II :- , ;! ~1' A"' SHANGWA 1 , r JUDGE ! I 9/9/2003 I 1' ;\ i' 1! AS;vm. /1 ,,I jl II ,, 11 .I t i 1',! 11 t I I ~ 1, 'ii l ' "1: it r ) . ,1 !l I 'I' 1) I' I, ' ! i I l .,if . I' .,i i . iJ fl ...JI • !i(1 ·l ,I 'I II LI' 11 ![ j i' j[ \I 'i jl 11 l 1· 1: i I. I ,,,IJ t t I,I I· 1: 11 fl 1!,1 ,~.1'. i, 11 ;f I' 1 !· 1f · ,r