Court name
Court of Appeal of Tanzania

Yoke Gwaku & Others vs Nafco & Others () [1991] TZCA 12 (04 July 1991);

Law report citations
1991 TLR 87 (TZCA)
Media neutral citation
[1991] TZCA 12

C Kisanga and Omar, JJ.A. and Mapigano, Ag. J.A.: The plaintiffs filed a suit in the High Court claiming inter alia, a declaration of ownership over an area of land now held by the defendants under certificate of title No. 5104. In the written statement of defence the defendants averred, among other things, that the plaintiffs' alleged D rights over the suit land were extinguished vide Government Notice No. 260 of 1989 in which case the suit disclosed no cause of action, and that this matter would be raised as a preliminary point at the commencement of the hearing of the suit. When the suit came on far hearing the point was accordingly raised and arguments centred E on whether Government Notices Nos. 260 of 1989 and 88 of 1987 which were relied on as extinguishing the plaintiffs' rights were valid. Ruling on the point, the High Court (Munuo, J. (Mrs)) found they were, but declined to F dismiss the suit because there were other grounds on which the suit could proceed to trial.
The plaintiffs were aggrieved by the finding that the said Government Notices Nos. 260 of 1989 and 88 of 1987 G were valid. They accordingly sought and obtained leave to appeal to this Court against such finding. Upon the appeal coming on for hearing, however, Mr Umbulla, Counsel for the respondents, took a preliminary objection that the record of appeal does not incorporate a formal or extracted order to the decision being appealed against. H This, the learned Counsel submitted, amounted to failure by the appellants to comply with an essential step, in terms of rule 89 (1) (h) of the Court of Appeal Rules, as a result that the appeal should be struck out as being incompetent. In support of that submission he cited two decisions of this Court in the cases of Arusha International Conference Centre v D.A. Kavishe Civil Appeal No. 34 of 1988 (Unreported), and Shamsa I Mohamed or Lily Philips v Halima Mohamed Civil Application No. 2 of 1990 (Unreported).

He also referred us to decision of the East African Court of Appeal in the case of Farrab v Official Receiver A [1959] E.A. 5 at p.10.
Dr. Tenga appearing for the appellants conceded the omission which he attributed to inadvertence on the part of his colleague who had prepared the record of appeal. However the learned Counsel went on to submit that the omission to incorporate the formal order was harmless because it did not prejudice the respondents who were fully B aware of the decision being appealed against, and which decision was indeed in their favour. We could find no merit in the submission. Such an argument could be advanced in all the cases, including those cited above, concerning this point but it would make no difference. The rule is not really based on the requirement that the C respondent should be aware of the decision being appealed against. For, even where the actual judgment or decision being appealed against is incorporated in the record this would not meet the requirements of rule 89 (1) D (h). The point is that this is essentially a technical rule which indeed causes some injustice, for instance, to a party who has to incur double expenses to prepare the record of appeal a second time But so long as the rule is not amended or superseded it has to be complied with.
Relying on an obiter dictum in Shamsu's case cited above, the learned Counsel contended that this rule may be E departed from in the exceptional circumstances of this case, the exceptional circumstance being that the order in this case was duly extracted but inadvertently omitted to be incorporated in the record of appeal. We think that F this is a very weak argument. For, even if we were minded to consider the obiter dictum expressed in Shamsu's case above cited, we are quite satisfied that Counsel's mere inadvertence to incorporate the formal order in the record of appeal could not, by any stretch of imagination, amount to be exceptional circumstance.
And finally the learned Counsel appeared to contend that in any event there was no obligation on his part to draw G up the formal order because he was not appealing against the whole order of the High Court; he was merely appealing against a finding which formed only a part of the entire order. Once again, we are unable to sustain this submission. A decision may consist of one or more findings, and an aggrieved party may choose to appeal against H the whole decision or against certain findings forming only a part of the whole decision. We think that where, as in this case, a party wishes to appeal against a finding or findings which form only a part of the whole decision, he is not obliged to draw up the formal order covering the whole decision. In our view the rule requires him to I

A extract an order corresponding only to that finding or findings which it is intended to appeal against.
In the present case the Court order was for refusing to dismiss the suit on the ground that although the Government B Notices Nos. 260 of 1989 and 88 of 1987 were found to be valid, nevertheless the suit could not be dismissed or not disclosing cause of action because there were other grounds on which the claim could proceed to trial. It was therefore open to the appellants to draw up the order in relation only to the finding that the said Government Notices were valid.
C In the result the preliminary objection is upheld. The appeal is accordingly struck out as being incompetent. No order for costs is made as the appellant is under legal aid.
Appeal dismissed.