19980918 TZCA Dar es Salaam

: t,. . •' !N THE COURT OF APPEAL of' TANZANIA P.T DAR ES SALAAM ' / - (CORAM: LUBUVA, J_0_._':.J...,_S_A~_1A_TT_A_1_J_.A_.__,.__An_d !,UGAKINGIRA-l.. J .A.) . CIVIL AFPEAL NO. 50 OF 1995 BETWEEN JAMAAT ANSARIS SUNNA APPELLANTS AND THEl-RmISTER"f.r:D TRUSTEBS··OF-UMOJ A... WA VIJANA WA CHAMA CHA MAPINDUZI RESPONDENT ; (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (~do-1...!h) dated the 20th day of August, 1993 in Civil Case No. 45 of 1986 RULING OF THE OOURT When this appee.l came on -for hearing Mr. Mwakajinga, advocate for the respondent, raised, on notice, an objection th.qt copies of the notice of appeal and the memorandum of appeal were not served on the respondent and prayed for_the appeal to be struck out. ~i-. Mtiengela appearing for the appellant conceded, after some vascillation; the omission to serve copies on the _respondent and ' :j. further conceded that the duty to do so was u_poµ the appellant. He ·, ., ,. ,I:< .• . ! pleaded, however, that the appellant·was a layman who thought it I I • was sufficient to lodge the documents with the Court, and invited r 1- , j us to invoke rule 3 (2) of the Court of Appeal Rules for the sake / i l of justice. I i· ! t' t As conceded by Mr. Mwengela, the obiigation to serve copies . i of the documents in question upon the respondent was on the ,.. ·.1 appe_llant •. Rules 77 (1) and 90 (1) respectively, are ~equivocal - ••.• /2 I , - 2 - :j.n placing that obligation on the appellant, apart from making ti:;e requirement for service_ mandatory. It follows that failure to comply with these provisions, or any of them 1 would be fatal to the intended .. ~- . appeal: see, for instance, S,_r:1:c.0gow1i ':.!21:.8.E!<~ [i98'i7 T~L.R •. 120.__ Mr. Mwengela. prayed for the invocation of rule 3 (2) and it seems he had in mind para. (b) thereof since he said: n ••• so that the ends of justice are not defeated. 11 Even assuming that the officers of the appellant organisation are laymen, but that is not to assume that they are also illi_terates, it is noted that the appellant's case has tnroughout-··be·en ·handled by a··variety of learned counsel. Indeed the notic-- of appeal and the memorandum of appeal, the subject of this ruling, were. signed by an advocate or advocates; moreover, the latter carries an endorsement at the bottom: 11 Copies to be served on UMOJA \vA VIJANA TRUSTEEs, 1: yet this was not done. It is curious, therefore, that despite the involvement of professional.hands the documents in question were not served on the respondent and the explanation offered by Pir. Mwengela is, in our view, implausible. The appellant had every " advantage in the conduct of the case and we tqipk this is not a .••, 1 proper occasion to invoke rule 3 (2) (b) • We are satisfied on the whole that there is merit in Mr. ( Mwiikajinga 1 s objection which we uphold and strike out the appeal. The respondent will have its costs. DATED at DAR ES SALAAM this 18th day of September-,. 1998. D. z. LUBUVA JUSTICE OF APPEAL ',.__ ·; ,'·\ B. A. SAMATTA · ' · \ JUSTICE OF APPEAL ·, ·,,: ,;. • ·· i_ :,"\\ K.s.K. LUGAKINGIRA , . O,l JUSTICE OF APPEAL '<-,~ertify_ r~(j;.s ~s a trUe copy of the original. ', :::·~--' ,/ ( ·i 1J} ·,I ( A.G~L'M\vARIJA ) DEPUT'I.REGISTRAR