20081216 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA . IN THE DISTRICT REGISTRY AT MJ~NZA HC CIVIL APPEAf NO 27 OF 200~ (Arising out of Civil Case No: 1/2002 Ukerewe District Court) SYLIVESTER MISANA BIH EMO ................................ APPELLANT Versus THE VILLAGE CHAIRMAN MURITI VILLAGE- · ........ RESPONDENT UKEREWE DISTRICT JUDGEMENT 25/11&16112/2008 SUMARI,J i This is an appeal by the. 9ppellant app~aling against the decision : of· Ukerewe District Court .. At UkJrewe· District Court the appellant unsuccessfully sued the ' respondent fpr compensation. of Tshs.1,973,8.25/= for his destroyed permanent trees/crops plus grave yard. The trial court dismissed the s,:uit for lack of merits a_nd also that. ' it was time barred. It. is from that decision he is dissatisfied and - .,,._. _hence, ... this appeal . The appellant was u~·represented. On 26th June,,2008 the· matter. -· came for mention and both parties: app.ea-red, appellant in his·: person . .. ~' . ·. -··. . ' . and _ respondent w.·aS~epres,ented fby Venance Silv:nus Magafu, the •• Village Executive Officer. They ag eed on the hearing date to be on ' . ' 25/11/2008'. - . On 25/11/2008 when the matter came for hearing t :- •-. ·/ t e, only appellant · was present. Neither the respondent nor his representative appeared and on no notice so the hearing proceeded as scheduled. Appellant .~ad nothing to add or to explain. He prayed his grounds of appeal to be considered. / I then fixed the date of judge~ent, .however, when preparing for ' the same I noted two important things which has raised legal jssues which I am bound to dispose of before I proceed. These are one, no copy of the decree has been accompanied with the memorandum of appeal as required under Order xxxix Rule 1 of Civil Procedure Code, Cap. 33 of the Laws (R.E.2002)., which provision !s mandatory. This Order reads:- Order xxxix Rule 1(supra):- (1)" Every appeal shall be preferred in the form of 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 I and the. memorandum shall . be . accompanied bv-a copy of tfie decree appea/e.d from and (unless the Court dispenses, therewith) of the judgment on . which it Js founded'(emphasis is mine). Two, the memorandum of appeal does not indicate when the same was presented for filing. There is no even the court seal which could at least assist me to. grasp . this .. The record however, contains . . · · no receipt- ERV to prove payment for filing the same. With thesetwo ·:if~- . .,· . 1 anomalies I have no doubt to hold that the appeal is incompetent . . . before this court. This being the position, the appeal is struck out. 2 r ;; · No order for costs. l ~. .'A..:N.Jvt. Sumari T'll'D@'E Delivered in absence of the parties. At Mwanza· 16/12/2008 3