Court name
Court of Appeal of Tanzania

National Bank of Commerce vs Methusela Magongo () [1996] TZCA 5 (02 December 1996);

Law report citations
1996 TLR 394 (TZCA)
Media neutral citation
[1996] TZCA 5

Lubuva, JA: H
At the commencement of the hearing of this appeal following the court's prompting it transpired that the record of appeal was not complete. That is, the record of appeal did not incorporate an extract of the order of the High Court dated 2 August 1990 appealed I against. When called upon to address the court on this point, Mr Banturaki, learned counsel for the appellant was appar-

ently not quite clear on the effect of non-compliance with Rule 89 regarding the extract of A the order. He seemed to be of the view that as the ruling appealed against was already part of the record at p 28 of the proceedings, it was not necessary to have it extracted and itemised in the index. However, on further reflection, he correctly in our view B conceded that the record of appeal was incomplete contrary to the provisions of Rule 89(1)(h) of the court's rules. In these circumstances, Mr Banturaki left the matter for the court to decide.
For the respondent, Mr Kahangwa, learned counsel was brief and precise. He stated that C the omission to incorporate the extract of the order appealed against was a violation of a mandatory requirement of Rule 89 of the court's rules. For this reason, he urged the court to strike out the appeal which, he said was incompetent.
The need for stringent and vigorous adherence to the court's rules in the processing of D appeals before this court hardly needs to be overemphasised. There is a series of decisions of this court to that effect. Time and again we have struck out appeals in which the records of appeal do not incorporate either the decrees or orders appealed against. Among others see for instance: (1) Abdul Aziz Ali Salim v Hafsa Saleh E Mahmoud and (2) Euroconsult (Africa) BV v French & Hastings.
In these cases, we struck out the appeals on the ground that the records were incomplete contrary to the requirement of Rule 89.
In the instant case, the appeal arises from the ruling of the High Court at Mwanza F (Munyera, J) dated 2 August 1990. Under the provisions of Rule 89(1)(h) it is a mandatory requirement for the record of appeal to contain copies of the documents listed therein one of which is the order appealed against. This was not included and Mr Banturaki had no plausible explanation for it except that he said it was due to an G oversight. Neither did he apply to be allowed to file a supplementary record in order to rectify the matter. In view of the mandatory requirement of the Rule 89, a fact which is as already pointed out was conceded by Mr Banturaki, there is no way in which we can proceed with this appeal based on an incomplete record. H
Accordingly under Rule 3 of the court's rules, the appeal is struck out. No order as to costs.