paulo luambano 14 others vs archidiocese of songea 2008 tzhc 41 18 march 2008

IN THE HIGH COURT OF TANZANIA AT SONGEA. DC CIVIL APPEAL NO. 9 OF 2007 (ORIGINATING FROM SONGEA DISTRICT COURT CIVIL CASE NO. 30 OF 2006) PAULO LUAMBANO & 14 OTHERS..............APPELLANTS VERSUS ARCHIDIOCESE OF SONGEA........................RESPONDENT 18/3/2008. Coram: Hon. L.M.K. Uzia, J. For Appellant:- Present For Respondent:- Present C/C: Zena. Mr. Mbogoro:- for the Respondent Mr. Nzowa:- is for the Appellant Mr. Mbogoro:- This Appeal is coming for hearing, but before that there is a Preliminary objection which I intend to raise. Mr.Mbogoro My lord this appeal is not before the court properly, there is no Drawn Order from which the appeal stands. The appeal arose from the decision “Ruling” of the District Court Songea, the Respondent objected in court that the District Court had no powers to decide the labour dispute between the Appellant and the Respondent, therefore the original case stopped until the objection was to be dealt with by the court, it was eventually ruled in favour of the respondent. The appellants were not satisfied, they appealed to this court. This is an appeal which is against the Ruling of the District court. My lord, in accordance with Order 40 rule II, the appeal was supposed to be accompanied with 1. The copy o f the Ruling and 2. Drawn Order These are important documents as it is provided for under Order 39 rule 1. I would like also to refer to this court the case of Yusuph Mtambo & others vrs. Moez Alidina 1985 TLR 145, and in another case of H.J. Stanley and Son Limited vrs. Ramadhani Lunyamala 1988 TLR 285; In those two cases, the court decided in line with order 40 rule II. The end result my lord, the appeal must be struck out and the appellants be advised to go to the original court to comply with the necessary order by filing the documents for appeal purposes. Mr. Nzowa, Without wasting time of the court, I agree that, there is no Drawn Order, these are the shortcomings. The appeal was brought to this court by laymen, my lord, but the law stands to be the law, I pray to the court to make any decision. But, I pray to the court to be lenient on costs, because it is a labour case, and the appellants have no money. RULING When this appeal came for hearing today, Mr. Mbogoro counsel for the respondent objected in court that, the appeal is not proper in the eyes of the law in the sense that the same was filed without the necessary document namely Drawn Order. He cited to this Court Order 40 rule II and order 39 rule 1 of Civil Procedure Act, 1966, he also cited to this court the case of Yusunh Mtambo and others vrs. Moez Alidina 1985 TLR 145 In that case, it was held, Order 40 rule II read together with order 39 rule 1 of the Civil Procedure code provides that in order for a memorandum of appeal be competent, it must be accompanied by a copy of the order appealed against. The court considered what amounts to a copy of the order appealed against, it was held “An order is a separate entity which has to be abstracted from the ruling, supplied and exhibited.” Mr. Nzowa for the appellants conceded that, there was no Drawn Order, he pleaded to this court that, the appeal was filed by laymen therefore they did not know whether it was important: He therefore prayed to this court to consider the issue of costs, that, the court be lenient on costs, because the appellants are ignorant and keeping in mind the nature of their income. Having perused, the relevant documents, it is true the Drawn Order is not in the file, there is no doubt the requirement is a mandatory. I therefore strike out the appeal as incompetent. I now turn to the issue of costs, It is true that the appellants are laymen, therefore they filed this appeal without a necessary document, secondly, they were employed by the respondent, now they have no job. Despite of all those problems, I find proper for them to pay costs of this appeal because, in Songea Municipal, there are many lawyers, and these lawyers would have assisted them in filing the appeal, these are not the old days when the parties had to travel to Iringa or Dar es Salaam to consult lawyers, for that reason, the appellants are supposed to pay costs, therefore the appeal is struck out with costs. ' - - - 18,h/3/2008. VIMS