20051118 TZHC Dar es Salaam
The appeal is incompetent because the memorandum of appeal was not accompanied by a copy of the decree as required by law; the requirement is mandatory and not a mere technicality.
Source-derived case information.
- Citation
- 20051118 TZHC Dar es Salaam
- Parties
- Appellant: Mariam Nchimbi; Respondent: Advela Laurent
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 18 November 2005
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Procedure, Mandatory Documents, Memorandum of Appeal, Decree Annexure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mariam Nchimbi
Appellant
Advela Laurent
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal is competent without annexing a copy of the decree to the memorandum of appeal
Ratio Decidendi
The appeal is incompetent because the memorandum of appeal was not accompanied by a copy of the decree as required by law; the requirement is mandatory and not a mere technicality.
Court Disposition
appeal struck out as incompetent
Orders
- Appeal struck out for incompetency due to failure to annex decree.
- No order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 209 OF 2004 MARIAM NCHIM BI ........... APPELLANT VERSUS ADVELA· LAURENT ............... RESPONDENT . RULING ORIYO,J. The appellant, Mariam Nchimbi, was dissatisfied with the trial court's decision in favour of the respondent. She has preferred this appeal against the said decision. However, the respondent, Advela Laurent, objected to the competency of the appeal because the Memorandum of Appeal was filed without a copy of the decree appealed from; contrary to ORDER XXXIX rule ( 1) of the CPC, 1966. She prayed for the appeal to be struck out. The appellant rightly conceded that the Memorandum of Appeal was not accompanied by a copy of a decree. She prayed for leave to withdraw the appeal with leave to refile a fresh one. 1 Under normal circumstances I would have granted the appellants prayer to order withdrawal of the appeal with leave to file a fresh one. The requirement that a memorandum of appeal be accompanied by a copy of the decree is not a mere technicality as argued by appellant but is a mandatory legal requirement where the court cannot exercise its its discretionary powers. Copy of decree appealed from must be annexed to the memorandum of appeal. It would have been different had a copy of judgment been omitted because the law gives a discretion to the court to dispense with the requirement of annexing a copy of the judgment to the Memorandum of Appeal. In the upshot, the appeal is incompetent and is hereby struck out. On the costs· of the appeal, the appellant is a legally aided litigant by WLAC and I make no order for costs. It is so ordered K.K. ORIYO JUDGE 18/11/2005 2