20161227 TZHC Dar es Salaam

i1!_., ' ....... :. .,t :-~ :t-. :.. IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO 21 OF 2016 MANAGING DIRECTOR, DIRA YA MTANZANIA ................................•............ 1 ST APPELLANT MAANAGING DIRECTOR, DIRA MEDIA . GROUP .............................................. 2ND APPELLANT • . RD PRINTECH COMPANY LIMITED .............................. 3 APPELLANT VERSUS YUSUF MANJI ......................................................... RESPONDENT RULING MKASIMONGWA,l. This is an appeal by the Managing Director, Dira ya Mtanzania and the two others against Yusuf Manji. The Appellants are challenging the decision of -) Kisarawe District Court in Civil Case No. 4 of 2019 delivered on 28 th December, 2015. As it was being expected the Appellants filed a Memorandum of Appeal accompanied by a copy of the Decree and the Judgment from which the Decree was drawn. Upon being served with the Memorandum of Appeal along with its annextures Mr. Edwin Joshua Webiro the learned advocate acting for the 1 Respondent filed a Notice of Preliminary Objection based on the following points of law:- 1. That the appeal is hopelessly time barred 2. The names of the appellant in the Memorandum of Appeal and the Judgment are different. 3. The Judgment and Decree differ as regards to the name of the parties to the case. Sometime later the Respondent withdrew the 1st point of the Preliminary Objection. When the matter came for hearing, before me there appeared Mr. Webiro and Mr. Byamungu, the learned advocates representing the Respondent and Appellants respectively. Mr. Byamungu essentially, conceded to the defects that gave rise to the Preliminary Objection. He differed with his learned friend on the consequences of such defects. Whereas Mr. Webiro prayed the Court that it finds the appeal incompetent and it should therefore be struck out with costs Mr. Byamungu submitted that the defects should not defeat this matter. This being the appellate court with also supervisory powers over subordinate courts can, suo motto provide for directives to the lower court to rectify the records and issue the proper judgment and decree. Since the error was that of the court, it is in the powers of this court to quash and or to order for rectification of the documents. I have considered submissions made by the respective advocates for the parties along with the records before me. It is clear from the. record that on the 7th September, 2011 the Respondent, Yusuf Manji came to our Kisarawe District Court and filed a plaint under which he had a claim 2 against, Managing Editor Dira ya Mtanzania, Managing Director Media Group Ltd and Printech Company Ltd. That matter was terminated in favour of the plaintiff against all defendants by the judgment of the court delivered on 22/7/2015. The typed copy of Judgment is titled as follows:- "THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE DISTRICT COURT OF KISARAWE AT KISARAWE CIVIL CASE NO. 4 OF 2011 YUSUFU MANJI. ...................... APPLLICANT VERSUS DIRA YA MTANZANIA ................. RESPONDENT" This title differs from that in the plaint as well as the Decree and Memorandum of Appeal. One cannot certainly tell that the Decree has its original in the judgment nor can he tell that the Memorandum of Appeal was prepared against the judgment of the court. The Judgment seems to bear strange parties with unknown identities. Under such circumstances, this appeal was filed in contravention of the provisions of Order XXXIX Rule ) 1 (1) of the Civil Procedure Code [Cap. 33 R.E 2002] (the CPC) which is in the following words:- ''Every appeal shall be preferred in the form of a Memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this order referred to as "the court") or to such officer as I it appoints in his behalf and the memorandum shall be accompanied by a copy of the decree 3 appealed from and ( ..) of the Judgment on which it is founded from" Order XXXIX Rule 1 (1) of the CPC is in the mandatory form of the provision of the law. Any appeal filed in contravention of this Rule is incompetent and the same deserves to be struck out. I that premise, this appeal is struck out with costs for it is incompetent. Dated at Dar es Salaam this 2ih of December, 2016. E.J~s~ JUDGE 27/12/2016 4 -- ------ - - - - - -