20010125 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA MISC0 CI\IIL P 'PEAL NO. + OF 1998 (From the decision..of the District Court of Sunibaanga in CiviI.OaàeNo 23 of 1997) 3UMB3 WANGA TOWN COUNCIL . . APPELLANT VERSUS KIGOMA ENTERPRISES RESPONDENT JIJNT NACKANJAJ, This is an appeal from an order of the District Court of Sumbawanga. The memorandum of appeal is accompanied iy a copy of the ruling which is erroneously entitled ", judgment'- 1- bi.t-a copy of the order from which the appeal has been lodged is, omitted Leaéd counsel did not address themselves on this fundmental irregularity which, in fact, goes to the root of the poteney of the appel itself As by law prided, an appeal from an order will be sustainable if its institution conforms to the pnovisions of Order of the Civil Procedure Code, Rule 1 of that Order mekes provisions for orders whiSh are appellable as of right. Orders that fall under this category which originate from. Ordet XXI are p±'ovided for under paragraphs (1) and j) of rule 1 1 namely, 'fl. An appeal shall lie from the following orders un.er the prOV1s1orJ.s of scctcn 71+7 namely.., an order under rule 32 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an, order under or rule 90 of O:&der XXI. setting asi ' "fusing to set asidca sale ••o• - A. Since the apricat.ien which gave rise to the order, the subject of this appeal, was iiatit . ..Led. under rule 21+ (i) 6f Order XXI, an appeal from it - does lie as of right. Even assuming that an appeal from subh an orderlies as of right, this appeal is noe—theless unsustainable because it does not conform to rule 2 of Order XL of the Civil Procedure Cde. That rule makes it a mandatory pre-ondition tiat rules ".. of Order XXXIX shall apply, so far as may be to appeals from order s ,U Now rule 1 (1) of Order XXXIX provides that every appeal shall be preferred in the form of menraidum signed by the appellant or his advocate. This part of that rule has been fully complied with. It goes on to state that: "the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment tn which it is founded.. . . Mutatismutandis the words decree andjudgment aprearing in the above excerpt will be replaced by order and ru1ing respectively. rgo in order for an. appeal from an order to be sustained it must heaccompaniéd by the crder from which the appeal is taken and, the ruling on whibh the order is founded. In the instant case only the ruling accofripanies i the memorandum of appeal. The omission f the drawn order is yet .ariother fatal irregularity. The appeal is, therefone, untenable... the appeal is dismissed with costs to the respondent' o Judgment to be de1ivred by the District Registrar. .• Sgd. J.M. MACKANJA JmE 8/12/200Q Date: 25/1/2001 Corain: M. G. Mzuna, Ag, D.). For Appellant: For Respondent: Mr, Naali, B/c. S. Kasubiri 4/3 -3 Court: This case is coming for delivery of Judgment Judgment is delivered today the 25th day of January, 2001 in the presence ofMr.'.Naali for the respondent and at the absence of the appel1ant H Sgd N, G. Mzuna, Ag D.R. 25/1/2001 Certified true copy of the original Judgment. DISTRTC IGISTRAR MBEYA