20091215 TZCA Dar es Salaam

.il- '<•· ,~- .,:ft L •: • 1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A, MBAROUK, J.A And MASSATI, l.A:) CIVIL APPEAL NO. 107 OF 2007 LUSHOTO TEA COMPANY LIMITED ................................ 1 ST APPELLANT TANZANIA TEA BLENDERS [2002] LIMITED .................. 2ND APPELLANT VERSUS TANZANIA TEA BLENDERS LIMITED · [IN LIQUIDATION] ........................................................ RESPONDENT (Appeal from the Ruling and Judgment of the High Court of Tanzania [Commercial Division] at Dar es Salaam} ( Bwana, Kimaro, l.l. } dated the 2 nd day of May, 2003 & 29 th April, 2004 in Commercial Case No. 32 of 2003 RULING OF THE COURT 8th & 15th December, 2009 MBAROUK, J.A.: th On 8 December, 2009, this appeal was scheduled for hearing. However on 3rd December, 2009, before the hearing date, Mr. Michael Ngalo, learned advocate for the respondent, filed a notice of - preliminary objecti_on in terms of Rule 100 of the Court of Appeal Rules, 1979 (the Rules) to the effect that the appeal is incompetent 2 for want of a valid notice of appe!al and that the record of appeal is I incomplete for non - inclusion of ethibits. j At the hearing, Mr. Ngalo s~bmitted that the notice of appeal ! 'i ' I I ' filed in this record of appeal is tpe same one which initiated Civil ! Appeal No. 41 of 2004 between the same parties. However, he said I \ that, Civil Appeal No. 41 of 2004 \was struck out on 11.3.2005 for being incompetent after containinb a defective decree. Mr. Ngalo I . ! said, the appellant was given leavi to re - inst,itute the appeal. He added that, thereafter, the appellalt filed an applic;ation at the High Court Commercial Division, and alcordingly, Dr. Bwana, J. (as he \ then was) in his ruling dated 15.4.2005 gave the appellant leave to institute this appeal within 14 days. f I th n 29 April, 2005, the appellant lodged a fresh notice of appeal. Hdrever, Mr. Ngalb submitted that the notice of appeal in this record of appeal is dated 29.4.2004 and l i not 29.4.2005. He reiterated that the notice of appeal in Civil Appeal I No. 41 of 2004 can not be used if this appeal after the previous appeal was struck out for being incompetent. I I ! I I 3 Mr. Ngalo urged us to find this appeal incompetent for I i containing a defective notice of appeal. On his part, Mr. George Kilindu, learned advocate for the appellant conceded that, in this record of appeal there is no notice of ' ; I appeal dated 29.4.2005. He further conceded that a' notice of appeal is the one which institute the appeaL However, he urged us to find a I ! ' mistake of not filing a proper notice of appeal as nmt a fundamental · 'I I irregularity. He added that such a 'mistake is excusable and should not invalidate the appeal. He said under Rule 104 of the Court of Appeal Rules, 1979 this Court ha~ powers to allqw him to file a ' I i proper notice of appeal. :1 I , On his rejoinder submission, fy1r. Ngalo reitera~ed that there is I ' i no notice of appeal in the record of appeal, hence the appeal has contravened Rule 89(1)(j) of the Court of Appeal Rules, 1979 (the I I ' , Rules). Mr. Ngalo resisted the pra~ers to re - irnstitute the appeal, . . : I i I because, this is the second time the respondent is avoided to enjoy , 4 I the fruits of judgment. Hence, he prayed for the appeal to be struck , out with costs. I 1 As pointed out by Mr. Nga19, the record of appeal contains an invalid notice of appeal. The recor~ of appeal was required to contain a notice of appeal dated 29.4.2015, instead of the notice of appeal dated 29.4.2004. This, surely is i~ contravention of Rule 89(1)(j) of I the Rules. Since the record of apbeal contains an invalid notice of appeal, the appeal is incompetent. · ;! l. :J In the instant appeal the redord of appeal contains an invalid notice of appeal, which renders the appeal incompetent. For that reason, the appeal should be and is hereby struck out with costs. I !f ,. . ,,.. I. I I 5 ~ I ' DATED at DAR ES SALAAM this 15th day of December, 2009 ! ' I I : . I E.N. MUNUO I JUSTICE OF APPEAL M.S. MBlROUK JUSTICE OF APPEAL i I I ! I S.A. MlSATI j JUSTICE OF APPEAL I I I I Certify that this is a true copy of tme original. I Q~·il (NJ.N. CHUSI) ! I DEPUTY REGISTRAR, I I •- I i