mohamed hussein mputa vs administratix of estate of the late shaban mwinyihija 2006 tzhc 306 7 september 2006

IN THE HIGH COURT OF TAN ZAN IA AT PO PO M A (DC) CIVIL APPEAL NO. 21 OF 2001 (Originating from Dodoma District Court at Dodoma Original Civil Case No. 24 of 1998) MOHAMED HUSSEIN M P U T A .......................APPELLANT VERSUS THE A D M I N I S T R A T E OF ESTATE OF THE LATE SHABAN M W I N Y I H I J A .................... RESPONDENT J UP G ME NT JULY 21, 2006 & SEPTEMBER 7, 2006 MJASIRI, J.: The A ppellant Mohamed Hussein Mputa is appealing from the decision of the District Court arising from Civil Case no. 24 of 1998. The Appellant was the fourth defendant in the above case. The appeal is lodged against the ruling of the District Court dated May 30, 2001 staying the eviction order that was m ade on Decem ber 7, 2000. The Respondent is the A d m in istra trix of the Estate of the late Shabani Mwinyihija. l The A ppellant filed two grounds of appeal which are reproduced as under:- 1. That, the trial court erred in law and in fact in failing to pursue the proper process of execution and satisfaction of the decree against the late Shabani Mwinyihija on the 8th November, 2000 by staying the eviction order that was made on 7th Decem ber, 2000 on the ground that there is a pending appeal against the decision before this Honorable Court. 2. That, the A ppellant having been dissatisfied with the whole of that ruling im m ediately applied to be supplied with copies of certified ruling and order for appeal purposes, the docum ents which were supplied on 8th June, 2001 therefore this appeal is within the prescribed span of time. The A ppellant appeared in person and the Respondent was represented by Mr. Njulumi Advocate. The A ppellant asked the court in his subm issions to order the execution of the decree issued by the court on Novem ber 8, 2000 and set aside the order for the stay of execution of the eviction order made by the court on accom panied by a copy of the decree appealed from and (unless the court dispenses therewith) a copy of the judgm ent. In the case of Maryam Abdallah Fundi Versus Kassim Abdallah Farsv 1991 TLR 196 it was held that O rder XXXIX Rule 1 is m andatory in requiring every m em orandum of appeal to be accom panied by a copy of the decree or order appealed from and that where an appellant has failed to com ply with this provision the appeal is not properly before the court and m ust be dismissed. In the case of Yusufu Mtambo and others Versus Moez Alidina 1985 TLP 145 it was held that an order is a separate entity which has to be extracted from the ruling, supplied and exhibited. In order for a m em orandum of appeal to be com petent it must be accom panied by a copy of the order appealed against. In com pliance with Orders 40 Rule 2 and Order 39 Rule I of the Civil procedure Code 1966. Decem ber 7, 2000 as no appeal has been preferred before the court in respect of the said eviction order. Mr. Njulum i submitted to the court the appellant's appeal be dism issed as the orders referred to by the appellant have not been attached to the m em orandum of Appeal. This is in view of the requirem ent of Order 39 Rule I, the order appealed form has to be extracted from the ruling and exhibited. On looking at the record before the court neither the eviction order nor the order for stay of the eviction order has been attached to the m em orandum of appeal. It is however strange that the decree attached in respect of Civil Case No. 24 of 1998 out of which this appeal arises does not make any reference to an order for eviction. This is because the order for eviction has not been stated in the judgm ent. This court is therefore not in a position to make a decision on an issue which has no connection with the decree attached. In the absence of the orders appealed from. In view of the provisions of O rder 39 Rule 1 which provides that the m em orandum of appeal shall be In view of what has been stated hereinabove this appeal fails and is therefore dismissed with costs. i SAUD A MJASIRI JUDGE y SEPTEMBER 6, 2006. !£j&gred in Cham bers this 7th day of Septem ber, 2006 in the presence of the appellant and Respondent and Mr. Njulumi Advocate for the Respondent. SAUD A MJASIRI JUDGE SEPTEMBER 7, 2006.