20090306 TZCA Dar es Salaam

20090306 TZCA Dar es Salaam

The appeal is incompetent because the Notice of Appeal was not served on the 1st Respondent as required by Rule 77(1) of the Tanzania Court of Appeal Rules, and the record does not show proof of such service. The issue of service is not res judicata as the previous application only concerned extension of time, not service.

Citation
20090306 TZCA Dar es Salaam
Parties
Appellant: Wilfred Muganyizi Rwakatare; 1st Respondent: Hamis Sued Kagasheki; 2nd Respondent: Hon. The Attorney General
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
6 March 2009
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Outcome
Appeal struck out with costs
Legal Topics
Affidavit Defects, Service of Process, Preliminary Objections, Election Petitions, Limitation Periods, Res Judicata
Source Language
English
Civil Procedure Election Law Affidavit Defects Service of Process Preliminary Objections Election Petitions Limitation Periods Res Judicata

Case Brief

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Parties

Wilfred Muganyizi Rwakatare

Appellant

Hamis Sued Kagasheki

1st Respondent

Hon. The Attorney General

2nd Respondent

Procedural Posture

Civil Appeal / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the affidavit of service was incurably defective for non-compliance with section 8 of the Notaries Public and Commissioners for Oaths Act
  2. 2 Whether the Notice of Appeal was served on the 1st Respondent as required by Rule 77(1) of the Tanzania Court of Appeal Rules
  3. 3 Whether the issue of service was res judicata

Ratio Decidendi

The appeal is incompetent because the Notice of Appeal was not served on the 1st Respondent as required by Rule 77(1) of the Tanzania Court of Appeal Rules, and the record does not show proof of such service. The issue of service is not res judicata as the previous application only concerned extension of time, not service.

Court Disposition

Appeal struck out with costs

Orders

  • The appeal is struck out as incompetent for non-compliance with Rule 77(1) of the Tanzania Court of Appeal Rules, Cap 141 Subs. R.E. 2002.
  • Costs certified for two counsel.