19961231 TZHC Dar es Salaam

IN THE HIGH OOURT OF TANZANIA AT DAR ES SAIAAM T ~. . . . . . . . . . . . . _ _ _ _ . . , 1 (~) CIVIL APPEAL K>e 32/95 TANZANIA 100D AND Nt1l'RITION CENTRE.• -, • •• .APPELLANT . VERSUS DOUGLAS L. UHOGWA, •. •. • • .~. • •, •. •'• • ••• • .RESIONDENl' ..... RULING ~,...~ The intended appeal of a corporutio11 known as TANZANIA FOOD AND Nt!CRITION CENrRE who are represented by Mr. Kaeenibo, learned advocate is even at this prelimina.ry sta0e of ruling '~estined to being disniesed for w1oornpetence both being an appeal against an e»eparte judgment and also for failUl~e by the appellant to accompany to the memorandum of appeal a copy of the decree or order purpertedly appealed from. Non what the circumstances as gathered from the suit background that lead me to, say ao'I The Diatri~t Court of llala in Civil Case No. 12 of 1994 the I, then plaintiff (~w respondent) had filed an employment cause .'.(tri"Oneous1Y. labelled a civil case) claiming for,', under section 130 of cap 366, terminal benefits amounting to shs. 8.50,000/- being loss of earnings, shs 4560/- being subsistance all.owa.nee for day from the ·1 1 4, 1994 to date of jud@nent plus interest on the decretal amount at bank rate with costs. As the cause was in the progress of being mentioned, on the 24.8.1994 in the absence of the appellant, Mr.Murugaruga Senior Labou:r Officer for the respondent applied for and waa granted to pro¢eed exparte. A hearing expart was fixed·, to ;be on the 12.9.1994. But on that date the appellant, on whose behalf appeared its legal Seoretaey- Mr. David A. Ntonge applied for and was g'!'anted chance to file a chamber application to set aside the exparte order and the case was thereafter succe:3sively adjourned. witil the 11.10.1994 when the respondent was gi:-anted an adjournment so that he would file a cowiter • affidavit When the case was called up on the .5.12.1994, Mr. Mrugaruga was allowed 1 h:l,s application to have the chamber application dismissed due to absence of the appellant. For a second time the respondent was allowed to be heard o:,o.parte on the following day• 6.12.1996. Aft~r the respondent had been heard orally a.nd tendered the necessary exhibits juugment was , ••/2- .J .. 2 "r -' I I a1 f~st adj~d to z,.1.1995• then 28.2.,,~99.5 and fiml.ly a ~udgment whieh is dated the 9.3.1995 was delivered t9 the ,, parties on the 29.,,9,; whilo ihe appellant was being represented by Mr. Mjail.a a11d the :re.wowent appeared in person. It is therefor~ from this exparte jwJ,gment that the purported appeal crune ·to be filed on the 5th Apri_\t 199'; Ffµ" the ~ n s that will justify the d,~ci13ion I am soon going 'io arriw at I see no reason why I should goiinto the grounds of appeal fF suft.Lce it said here that the appeal ch4leJ:1ges on expa.rte judglllentt On the ~eating date, Mr, Kaglillnbol.s a ~ n 'Wlder OVI rule 17 at the C1P,O, was etrollgly resisted by the rJspondent but on·ruJ.ing was mada due to the tact that the appeal had yet 1-o ibe admitted• I will 1, nU1 i'NeI'VQ the) l"Uling in view of the outoopie pf this ruling. . F.l,rst under O,IX rule 13 of the Civil Pr9cedure Oode, 1966 it is ttW.tij •J.~ar that the only chance open to a pe.;l'ty,,who is diaatis!ied by ' t\fl ~ t e judgment is for him or her to appJ¥ to the oourt by whioli: 'th~ ~ e deeree came fxtom so that the sam~, may be set aside. I~ <>i' ~f an outcome of his application that the dissatis!ied party may api,taJ, to a higher court. As the appelJ.a,nt has ~t satis~ed this.l Qol,\t'; 't}lat he first made an application for setting aside the exparte ,, ' judgment dated the 9,3.1995 and i\trther as the ,,',purported appeal wbi<th ~ against an exparte judgment is not appealabJ::e .;,:, see OXL rule 1of '1le eaid Code, the purported appeal is incompet,ent. i \ But as if that were all, I would not have~1 added this. It is \if,to ♦lea.r that with respect to the admission ~ote for this appeal.,· ' ,1 it ~s quite clear that as the ,:purported appeal ha.d,not complied with 11te e\eBJ' provisions of Order 39 r. 1 (I) as re~d t,05ether with Order ~ ,ule 2 of the said Code 1 the memorandum of appeal ought to have oeQn reje•ted for uncompetence. It is quite clear from the quoted ;prgv;Lsions of that Code • that in aey appeal froip an order of a lower eourt any memorandum of appeal which is not acoompr;uµ.ed ,, by a copy of ;he deor~e ~r order appealed from renders the ap~aal,, incompetent and may suffer dismissal. even at stage of its admiesion"' see 8tanLey Kalama M~ v. Chihiy-o K\f.i.sia (1981) T,L.R. 143': e.t: 146, Appeal dismissed • • M. G. C. KA.JERI 1 PRM' ( ID. ) 1 1 ,,.- I 1 . ,. ·f:. I 0~ ~.fO.lai~F¢e-nJ-1'1Zllit : ~ , , , ~ ,I .. ., 'J4('2/96 I ~ • I At R, Manent~1SDP.t;iC AQsent t~ appOllant Mj.ee U:teo !~ ,;ependent ~ AW3;.,· . Qwt-t • Tb.e Ru.'U,ng le ~ad in the absen;e of the appellant q wet .. l t . \ tpt' ir~ed :f'~ 0"4e1 He will oo notified!. ·e,f the eutc0111e et the I ~St .,,