20181127 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 223 OF 2017 (Originating Civil Case No. 3/2017, Kilosa District Court) HAMZAMSWAKI ........................................... APPELLANT

VERSUS HASSANI ALLY MPALAI. .................................. RESPONDENT

JUDGMENT 19. 11.2018-27. 11.2018 E.B.LUVANDA, J At a trial court the appellant one Hamza Mswaki was sued by the respondent one Hassani Ally Mpalai for a claim of Tsh 17,500,000 being a debt for a loan given to the appellant on 5/9/2016. The appellant, into his written statement of defence had admitted being owed by the respondent, only asked for waiver of interest and extension of time to pay a debt, had also attached a letter wrote on his behalf by Advocate Dushi Peter, also admitted a debt of Tsh 17,500,000. 1 On defence (at a witness box), the appellant prayed for time to pay a debt. At a verdict, the trial court ruled that the respondent is entitled to be paid back his money as sum of Tsh 17,500,000/= Aggrieved, the appellant filed the following grounds of appeal: the trial court erred in law and fact by holding that the appellant and the respondent entered into a valid contract; secondly the trial court erred in law _and fact by holding that the appellant received money while in fact no money was issued to the appellant; thirdly the trial court erred in law an fact by holding that the consent of his wife was not needed and the matrimonial house was proper for attachment as the security; fourthly, the trial magistrate erred in law and fact by holding that the money was received by the appellant in the presence of the Primary Court Magistrate at Masanze; fifth, the

trial court erred in law and fact by holding that the appellant received loan of Tsh 10,000,000/= from the respondent and then increases to 17,500,000/= due to the interest fixed by the respondent without having any valid license to do so; finally the trial magistrate erred in law and fact by ignoring the evidence of the appellant. 2 Ms Linah Stephen learned Counsel filed submissions for appellant and Mr. Joseph Singano learned Counsel filed submission for respondent. However, I will not reproduce the said submission, as I have noted defect to memorandum of -appeal. A memorandum of appeal which was presented for filing on 25/8/2017 was not attached with a copy of a decree. The learned Counsel for appellant had just attached copy of judgment and proceedings. The law requires a petition of appeal to be accompanied by a copy of judgment and decree complained or appealed against. Order XXXIX rule 1( 1) Civil Procedure Code, Cap 33 R.E. 2002, provide, I quote. " Every appeal shall be preferred ,n the form of a memorandum of signed by the appellant or his advocate and presented to the High Court ... and the memorandum shall 3 be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment of an which it ts founded" Therefore noncompliance to this mandatory requirement of law renders the appeal in complete and hence incompetent. In other words there is no valid appeal before the court, upon which can be entertained. Appeal is struck outlw-i-th costs. E.. LUVANDA

JUDGE 7/11/2018 4 27TH /11 /2018 Coram: Hon. Luvanda,J For the Appellant: Absent For the Respondent: Mr Joseph Singano Advocate Cc: Placidia Court: Judgment delivered at chamber. .B.LUVANDA

JUDGE 27/11/2018 5