20120703 TZHC Dodoma2

.,.... .. ·. . . /·",· :'~ :,.~ ~-. .... ' . ~ ~·.;_: ... _,· ..~ . . ..· :-•. "\ -~ . . <· IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA MISC. LAND APPEAL NO. 33 OF 2011 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Appeal No. 109 of 2010 Original from Ward Tribunal of Mpinguzi) JOHN LWA BE ..................................................... APPELLANT VERSUS NEEMA LWABE ................................................ RESPONDENT JUDGMENT B.R. MUTUNGI, J. The appellant 1n this appeal John Lwabe is praying before the court to impugne the decision of· the Dodoma District Land and Housing Tribunal in Land Appeal No. l 09 of 20 l O whereby he emerged the looser. The appeal is thus being brought as against the respondent one Neema Lwabe. 1 .... _. The appellant's grounds of appeal are as follows:- 1) That, the first appellate tribunal erred in law and in fact in allowing the respondent's appeal with costs without considering that the evidence of the appellant and together with his three witnesses who were at the trial that the disputed farm was inherited by appellant from his late mother, 2) That, the first appellate tribunal erred in law and fact is not considering the decision of Mpunguzi Wa~d Tribunal which decided that the farm in dispute be divided · equally between the appellant and respondent because even before the appellant's parents death, the respondent was using the said farm for a longtime though she was using the same temporarily. 2 ..... .- . ;.'··: . _- Before I venture into the merits of the appeal itself, have come across a very vital shortcoming in the pleadings. On perusal it has caught my eye that the record of appeal has not been accompanied with a copy of decree. What is to be found on record is the petition of appeal, Judgment of the District Land and Housing Tribunal and the copy of proceeding. It is a known principle of Civil Procedure that an appeal document should be accompanied with a copy of decree. The law makes it very clear in black and white that this procedure is mandatory as it to be found under the Civil Procedure Code Cap 33 (RE: 2002) Order XXXIX Rule I. The above provision has been tested in a number of cases in the Highest Court of this Land as found in the case 3 ~. ·. i·_.,_,'. of Mariam Abdallah Fundi Vrs. Kassim A. Farsi ( 1991) TRL No. 196 which held:- "Order XXXIX Rule ·1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of 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". There is yet another authority by the some court in the case of Richard Temba Elias General Mchomba Vrs. Oscar Temba Civil Appeal No. 9 of 2005 which held:- 4 ;, __ ,,, . ..,. ·.- . . _- _ ....... '' •••••••••••.•••• 1·t . IS mandatory for a record of appeal to have a copy of decree" ' ( From the foregoing in. absence of a copy of decree, it is obvious the appeal is not properly before this court. It follows therefore as night follows day, there being an improper appeal before this court then what is to proceed is the same to meet the iron first of the law and that is striking out this appeal of which I hereby proceed to do. Considering the circumstance of the appeal I make no orders as to costs. B.R. MUTUNGI JUDGE 3/7/2012 5 .·- ,:\~-·~ _ _•-~i__~ ~ Read this day of 3/7/2012 in presence of both the appellant and Respondent in person. B.R. MUTUNGI JUDGE 3/7/20T2 6