19911203 TZCA Dar es Salaam1

--; ;J_:)·:t"" -.IN .THE COURT OF APPEAL OF TANZANIA .. AT DAR ES SALAAM . . '.· . . :·· -~ (C,ORAM: J1AMADHAN!, J.A., "MN'ZAVAS, J.A., And MAPIGANO, f.i• J~A.) .. \r i,,, CIVIL APPEAL, NO. 7 OF 1991 BETWEEN ~~_1)&.!4}!W!~•- • • • APPELLANT . · , : · , ·.. AND KASSIM •. ABDALLA FA.RSI. • • • • RESPONDENT . (A_J?peal· from the ~ e n t of the High Court of Tanz~ia at Mtwara) C,Maina';· .tt) dated,~h.e 23rd ruir of November, 1989 in Civil Appeal Ncl. 8 of 198Q JUDGEMENT OF"TBE coum RAMADHANit JeAe:. The appellant, Mariam Abda.lia Fundi, is a minor whose ,.. a.ff'airs have been conducted ~ugh her nerl friend, one Raja.bu illi Irami~ .. The responden:t~, . . . . .Kassim AbdaJ.lah Farsi, ~ ·the brother·~ and now is the administrator of' the· estate of Fatuma Abdallah- Farsi we died intestate on 14th Novembel!~ 1988". :Before her d.ea.t~ the deceased had entered into a contract • ,l • for the sale. of her house on Plot 52 Block 11K11 in LIN'fil. to the appellant for shs• 300,000/:fe On 16th August, 1988 the_ contra.ct was signed. by the parties and a domi payment of' shs• 3d~ooo/~ was made (Exlle .AfeI/ T.hcm::en ,12th: September, 1988 an -instalment of' shs,e 12cf;'ooo/~ was. p_aid by the appellant through Mr•· Hamidi ••••/2 U- (Exh.B)~/-However, before the appellant finished paying and before mhe obtained possession:, the deoeased died. The appellant then sought to complete paying the c.ontra.ct price to the respondent and so to come into possession of the house but the latter refused to receive pa,yment and would rather re:f'und the moneys paid.e The District C©u.rt of Mtwara decided in favour of the· appellant who waS then the plaintiff'• The present respondent appealed to the High Court wh~re ho succeedea: This now is a.n appeal from that decision• Before us the apPellant was represented 1:zy- Mr'~ Mar=do, lea.med advocate!~ He had four grounds of appeal'• But we feel the appeal can be disposed of on the first groun~ Mr. Marando submitted that the memorandl.ml of appealto the High Court was not ~companied with a copy of the decree as required by O.XXX:CX Rel( 1) of the Civil Procedure Code'', 1966~ The respondent, on the other hand, appeared in person and, , "?:, as a lajTIJlan, did not advance any counter argument. But even if he were represented, his counsel would have had an unenviable task because that order provides: "Eve:cy- appeal sha11 be preferred in the fonn. ci>:f' memorandmn signed by the appellant or his advocate ••o The memorandum shall be accompanied by a copy of the 1 / decree appealed f1'0m ~'•·• 11·~ It has been held a number of t:imes: "That Oe39, Rel is mandatory in requiring every memorandum of appeal to b0 aocornpu,,niod. bl' a. oow of' the decree or order appealed from, and that where all appellant has failed -to comply with this provision, the appeal is not properly before the eourl and must be dismissede''e . oe •••/ 3 • I . 1 (Munshiram & co·, ·v. Star. Soda Water Fr,to:cy- (1934), 16 Ir~eR 50 which was ~ollowed in K0tak Lti,, Va Kooverji £:196iJ E.A.e 348)'• The leamed judge in this appeaJ. averlooked that fact and • bef'o:oo went a.head to detennine the e.ppeal which ,ras n0t pn,peitly him instead of' dismissing i t'e So what is now the position? We must trec:1,t as done that which ought to have been done'• The lea.med judge ought to have dismissed the appeaJ. but did not'• So we must treat the appeal to have been null and void. We a.re then le:f't with the judgment of the District Court whieh was in favour of the : appellarrtf~ I Inciden-tallj1 we have made two observations in our perusal of the reco~ One, E:x:b.e A and Erlt~ B have not been stampe~. But this is not fatal as the stamp:i.11.e could legally be made subsequently. Secondly~ the house being on a registered land its disposition would require the consent of the Commissioner for Lan~ After saying so, we allow the appeal with costd;. DATED at DAR ES SALAAM this 3rd day of DeoembeI', 1991'~ A• s. L. RAMA.DH.AN! JUSTICE OF APPEAL. N• s. MNZAVAS JUSTICE OF APPEAL• n. P. MAPIOM10 ,Af{o JUS 1i'IC.i:: OF APPEAL. I cerlif'y ·l;ha.t this is a true copy of the originaJ.1• (L.B. K.ALEGEYA) SENIOR DEPUTY ro:DISTRARe