CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO. 5953 OF 2024 (Originating from Civil Case No. 11 of 2023 in the District Court of Arusha at Arusha) NANCY GODLOVE ELIAS......................................................... APPELLANT VERSUS SANLAM LIFE INSURANCE (T).............................................. RESPONDENT RULING 17/06/2024 & 15/07/2024 NDUMBARO, J Dissatisfied by the decision of the District Court of Arusha at Arusha, the appellant has filed this appeal with 6 grounds of appeal challenging both the judgment and decree which was entered in favour of the respondent. The respondent upon being served with the copy of the petition of appeal, filed a notice of the preliminary objection on the point of law that the appeal is incurably defective for contravening Order XXXIX rule 1 (1) of the Civil Procedure Code Cap 33 R.E 2022. In this circumstance, the preliminary objection had to be disposed of first before the appeal. Mr Fredrick Mbise appeared for the respondent, he submitted that the appellant herein has contravened the mandatory provision of Order XXXIX rule 1 of the Civil Procedure Code on reasons that the appellant filed a petition of appeal instead of a memorandum of appeal. More so, the counsel added that the appellant has also not attached a copy of the decree in her appeal. With these irregularities, the respondent prayed for the appeal to be struck out with costs. Responding to the above submission, Mis. Leticia appeared for the appellant, she responded that the petition of appeal filed in this court has not prejudiced the respondent in any way, she further added that memorandum of appeal and petition of appeal are used interchangeably and that is not fatal. She prayed for this court to order amendment instead of the appeal be struck out. On the second issue, the appellant's counsel responded that it is true that the decree was not attached but according to her, that omission is not fatal and does not prejudice the respondent. She insisted on the use of the principle of overriding objective to do away with technicalities. The counsel thus concluded that the preliminary objection has no merit and the same be disregarded by this court. In rejoinder, Mr Mbise insisted that the appellant violated a specific provision of the law and that a petition of appeal is quite different from a memorandum of appeal and this irregularity makes the appeal incompetent. On the second issue, the counsel responded that the overriding objective cannot be invoked in the circumstances of this case as the appeal cannot be heard without having a decree. After considering the rival submissions of the counsel for the parties the court has found it proper to start by looking into the provision of the law alleged to have been contravened by the appellant. The said provision is Order XXXIX Rule 1 (1) of the Civil Procedure Code states as follows: - "Every appeal shall be preferred in the form o f 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 it appoints in this behalf and the memorandum shall be accompanied by a copy o f the decree appealed from and (unless the Court dispenses therewith) o f thejudgment on which it is founded. " It appears from this provision of law that, an appeal from the District Court in its original jurisdiction to this Court is initiated by a memorandum of appeal and not a petition of appeal. In the instant appeal, it is apparent from the records that the appellant moved this court with a petition of appeal instead of a memorandum of appeal. Having noted that the question that follows is whether the omission is fatal. This court in the case of Fatma Aman Karume vs The Attorney General & another, Civil Appeal No. 02 of 2020 (Unreported) was once faced with a similar situation and in its finding, it adopted the position of the law in the case of Basil Masare vs Peter Michael, [1996] TLR, 226 where the Court of Appeal of Tanzania (Mroso, J as he then was) stated as follows; "What substantive distinction can one make from the use o f the words 'petition' or 'memorandum' when referring to grounds o f appeal to a higher court? I must confess, I can see no such distinction although I would say that it would be preferable if an intending appellant uses the word adopted by the legislature for the relevant type o f appeal. In my view, if an appellant uses the word 'memorandum'instead o f the word 'petition' in connection with his grounds o f appeal....that alone cannot render the appeal incompetent. That would be making a mountain out o f a mouse mound unnecessarily." From the above position of the law, it follows that, even if the appellant uses the petition of appeal instead of a memorandum of appeal yet the omission is not fatal and the same does not render the appeal incompetent. However, Order XXXIX Rule 1 (1) further provides for the necessity of a memorandum of appeal to be accompanied by a copy of the decree appealed from and the judgment on which it is founded. In this case, as the Appellant's petition of appeal was accompanied by a copy of the judgment without a copy of the decree which is appealed from, unlike the first point of the preliminary object, in this preliminary point of objection I hold that her appeal is improperly before this Court. Under those circumstances, it is the view of this court that, the omission to attach the copy of the decree is not a minor irregularity which can be cured by way of amendment, to me, this omission is fatal and goes to the root of the appeal at hand. In the premises, the court has found this point of the preliminary objection raised by the counsel for the respondent meritorious and is hereby upheld. In the upshot, the appeal is accordingly struck out with costs. It is so ordered. D. D. NDUMBARO JUDGE 15/ 07/2024