pili ami vs moses gidion makala others 2013 tzhc 2219 12 april 2013

AT ARUSHA CIVIL APPEAL NO.12 OF 2011 (Originating from District Court of Monduli Civil Case No.2/2009) PI LI A M I..................................................................... APPELLANT

VERSUS MOSES GIDION MAKALA " RHOTIA VALLEY LTD >■ .............................. RESPONDENTS

MARISE COCH Date of last order: 4/12/2012 Date of Judgment: 12/4/2013

JUDGMENT SAMBO. J. The appellants, Pili Ami, being aggrieved by the judgment and decree of the Monduli District Court in Civil Case No.2 of 2009, opted to lodge the present appeal. She earmarked a total of four grounds, but upon a careful perusal of the same, I noted that basically the appellant is impeaching the said decision on the ground that her evidence as plaintiff, was stronger than that of defendants and the trial court erred not to consider this. The 2nd, and 3rd grounds are all based on the issue of evidence like the 1st ground, there's nothing new. The 4th ground is not a ground at all. By order of this court, the appeal was argued by way of written submissions and each party managed to file the same within the time frame of this honourable court. In his reply or submission against the appeal, the learned counsel for the 2nd and 3rd respondents, from Prime Attorneys, based in Dar es Salaam, among others, told this court that the appeal is not properly before the court for contravening the provision of Order XXXIX rule 1 of the Civil Procedure Code, CAP.33 R.E.2002, in that no decree has been accompanied. Citing the decision of the Court of Appeal of Tanzania in the Case of Mariam Abdallah Fundi V. kassim Abdallah Farsi [1991] T.L.R. 196, the learned counsel prays that this appeal be dismissed with costs. Instantly, I examined the memorandum of appeal file in this

court on the 29th day of April, 2011, and noted that the appellant didn't attach a copy of the decree appealed against. As the learned advocates for the 2nd and 3rd respondents rightly submitted, this contravened or violated the statutory provision of Order XXXIX rule 1 of the Civil Procedure Code, CAP.33 R.E.2002, which mandatorily requires that such a decree must be accompanied the memorandum of Appeal. In view of the holding of the Court of Appeal in the cited case of Mariam Abdallah Fundi V. Kassim Abdallah Farsi, supra, "------ the appeal is not properly before the court and must be dismissed". I am absolutely bound by the decisions of the highest court on the land, that's, the Court of Appeal of Tanzania in the presence case, I do declare that the appeal is improperly before the honourable court, temple of justice and need be dismissed. Consequently, I dismiss this appeal with costs. [SGD] K.M.M. SAMBO

JUDGE 4/ 4/2013 Delivered in chambers this 12th day of April, 2013, in the presence of Mr. Gaspar, advocate for Mr. Safari, advocate for the respondent, [SGD] K.M.M. SAMBO

JUDGE 12/ 4/2013 I hereby certify this to be a true copy of the original.