20160627 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., MUSSA, J.A. And MUGASHA, J.A'.) - CIVIL APPEAL NO. 47 o·F 2010 MARY JOHN MITCHELL (Legal representative of Isabella John).............. ~ ................. APPELLANT ·VERSUS - 1. SYLVESTER MAGEMBE CHEYO I - 2. PROVICON INDUSTRIES LIMITED ,,-- .............. ; .... RESPONDENTS 3. NATIONAL BUREAU DE CHANGE LTD~ j (Appeal from the decision of the High Court of Tanzania, (Commercial Division) at Dar es Salaam) (Kimaro, J.) dated the 18th day of August, 2004 in Commercial Case No. 49 of 2003 ORDER OF THE COURT MUSSA, J.A.: When the appeal was called -on for hearing today, the appellant was represented by Mr. Protace Zake, learned Advocate, whereas the first and second respondents had the services of Mr. Semi Mali mi, _also learned Advocate. The third respondent did not enter appearance. At the prompting cif the Court, Mr. Zake informed us that pursuant to the Order of the Court dated the 8th February, 2011 the appellant was required to amend the record so as to put upon record some missing exhibits. Mr. Zake further informed us that they have failed to locate the missing exhibits from the trial court 1 and, in the result, they cannot implement the Co~rt Order:· He conceded that as a consequence, this appeal has been rendered incompetent. The learned counsel. fo~ the appellant prayed that the appeai be struck out for incompetence .. To this prayer, Mr. Mali mi had no objection save that he requested for costs, the more so as the appellant had remained undecided from the year 201 l when the Order was made. For our part, we share the sentiments of Mr. Zake to the effect that the appeal has been. rendered incompetent on account of an incomplete record of appeal. But, due to the circumstances of the case and, for the reason that the issue of incompetence was raised by the court suo motu, we give no order as to costs. DATED at DAR ES SALAAM this 27 th day of June, 2016. E.A. KILEO JUSTICE OF APPEAL K.M. MUSSA. JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy , the original.