20151030 TZHC Dodoma2

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA Land Case Appeal No. 55 of 2014 MALOGO CHIDUMULE APPELLANT VERSUS DODOMA MUNICIPAL COUNCIL .............. . RESPONDENT RULING Date of Last Order: 22/09/2015 Date of Judgment: 30/10/2015 SEHEL, J. This is a ruling in respect of a preliminary objection raised by the Respondent against an appeal lodged by the Appellants. The objection raised is that the appeal is improperly filed given that the petition of appeal is not accompanied by a copy of the judgment and .decree from which the appeal originates as required by the law. The objection, by order of this Court, was disposed by way of written submissions. Miss Sagile, the municipal solicitor sub~t~t 1 . in terms of Order XXXIX Rule 1 of the Civil Procedure Act, Cap. 33 it is mandatory for the memorandum of appeal to be attached with a copy of a decree. If not accompanied then the appeal is incompetent and should be dismissed. In support of her submission, she cited the case of H.J Stansley & Sons Ltd Vs. Ally Ramadhani Kunyame [998] T.L.R 250. She also submitted that since the decision in Lan.d Application was _a consent judgment then tbe appellqnt had no right to appeal against it. In support of this she referred this court to the High Court in Taningra Contractors Ltd Vs Maungu Seeds Company Ltd, Commercial Case No. 101 of 2003 _where Kalegeya, J (as he then was) held that consent judgment is not appealable. She prayed for the appeal to be struck out with costs. The respondent on his part, simply replied that he was only supplied with the copy of judgment without a decree hence his appeal is competent. For second objection, he submitted that there - was no consent judgment hence the same is appealable. He prayed for the objection to overruled w i ~ 2 I will start with the first objection. Since there is no specific provision in the Land Disputes Courts Act, Cap.216 which provides for appeal in matters which originate from the District Land and Housing Tribunal then guidance must be sought from S. 51 of the same Act read together with Regulation 24 of the Land Disputes Courts {The District Land and Housing Tribunal) Regulations, 2003 {GN. 174 of 27/6/2003). In that regard, _a party who is aggrieved _by the de_cision of the Tribunal shall have, unless otherwise provided for by the Act, have right to appeal to the High Court, and the Civil Procedure Code, Cap.33 R.E. is applicable. That being the case, Order XXXIX Rule 1 { 1) of the Civil Procedure Act, Cap. 33 R.E 2002 must come into play. The order stipulates:- 1.-( 1) Every appeal shall be preferred in a form of memorandum signed by the appellant or his advocate and presented to the High Court ........ .or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and ~ 3 (unless the Court dispenses therewith) of the judgment on which it is founded." This Order stipulates in mandatory terms that the appeal must be preferred by way of memorandum and be accompanied with the copy of a decree. Since the appellant does not dispute the very fact his appeal is not attached with the copy of decree then I concur with the submission made by municipal solicitor that failure to attach a copy of a decree makes the appeal incompetent. This was so held in the case of H.J Stansley (Supra). I therefore find that the first preliminary objection has merit. Having held so, I see no reason to proceed with the determination of the second objection as it will just be for academic purpose. I do therefore do hereby struck out the appeal with costs. DATED at Dodoma this 30 th d y of October, 2015. JUDGE 30th October, 2015. 4 • Ruling delivered in open court at Dodoma under my hand and seal of the court, this 30 th day of October, 2015 in the presence of the appellant and in the absence of the respondent. Right of Appeal ( explained to the parties. 5