hassan vs nkanatila 2001 tzhc 9 1 november 2001

IN THE HIGH COURT OF TANZAmA (DAR ES SALAAM DIS'tRICT REGISTRY) A:l' DAR ES SAlAAM CIVIL APPEAL NOo 112 OF 1996 'rhis appeal which was filed in this court on 13/9/1996 in cha11enginY the ruling of the Hon. PRM Chillongi (as he then was) in Kisutu ~l'S .ourt Civilsgtffe NOo18/1994. In that ruling, the court had ordered to be atta.hed and L' by public auction a ~"~J~l?e situated on Plot: NO •• 105 Block 113:' Kigogo area in Kinondoni District in order to satisfy, a decree of the same •.ourl . granted in fawour of the respondent, one A',Iedh Said l-lKanatilaagainst ch~ Judgment Debtor, one Ali Mbunda, who is the owner of the said house. The appellant is now appealinE e..gainstthat ruling on the s:L~;th .y!' a General Power of Attorney issued to him by a person called. Nohnmed Hassan of Htiltlbovillage. respondent Hr ••L;Qoba, sought permi,soioVj~() b0 hec)xd finct in l~espect of preliminary objections on points of law. He pre.sem:ed his argument by way of written submissions.. The appellant chose not to submit anything. The learned counsel for the respondent has raised two points of: Preliminary Objection in his written submission. Those are:- (2) The memorandum of appeal has been fu'1nexedwith documents legally not required to be ffi~lexed thereto, olso anablir~ provisions of law are cited on the Memorandum of Appeal. It is the submission of the learned counsel for the respondent which I agree with that the appeal contravens Order xxxrx rule 1 (1) of the CPC 1966 vlhich man.datorily require a Memora..'1QUlll of Appeal to be accomparied by a copy of the decree appealed from and unless the court dispenses therewith, a copy of the jud~nent 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 be enabling provisions of law under which the ap~ea~ was brought, which are enabling provisions for a chamber summons and not those of a memorandum of appeal. Order XXI rJle 57, Order X{Xv~I a~d order ~CIX of the CPC so cited cover Chamber Summons and not memorandum of appeal. The parties to the case the appellant is appealing agaip~t are one Awadhi Said Nkamatila ::u1d Ali Mbunda. The appellcilltIbrDhim !'1ohamedHassan is a str[~ger to the original case. lIe has prescncbly jumped in the shoes of Al~ Mbunda through a PO',.Jer of Attorney which is annexed to the Nemorandum of Appeal. But the potver of attorney is challenged by Mr. Lebba for being unregistered. For 2~l intents and purposes it C8lU10t be inforced in law. .f ,,~ruting of the PowerLAttorney also re~s that it has been issued by a person other than Ali Mbunda, who is a party to the original case ar~ (,f) \!hosc: ber.a.lfthe present appellant is supposed to appear. For that reason, it is my finding that the appellant lacks the necess::tr j !::::::2.,!J'~~:'2 and he is the::'eforeincompet"'nt to file the appeal. The appeal lacks merits and is hereby dismissed. The respondent shall have his costs" F.3.K. Mutungi DISTRICT RBGISTP~R 10/4/2002