Kafulila v Mwilima and Others (Order of the Court) (Civil Appeal No. 110 of 2016) [2016] TZCA 10; (12 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT TABORA

(CORAM: MBAROUK, J.A., LUANDA, J.A. And MZIRAY, J.A.)

CIVIL APPEAL NO. 110 OF 2016

DAVID ZACHARIA KAFULILA ................................... APPLICANT

VERSUS

1. HASNA MWILIMA .................................. 1ST RESPONDENT

2. RETURNING OFFICER

KIGOMA KUSINI CONSTITUENCY ..........2ND RESPONDENT

3. ATTORNEY GENERAL ............................. 3RD RESPONDENT

(Appeal from decision of the High Court of Tanzania at Tabora)

(Wambali, J.)

Dated 17th day of May, 2016

in

Mise. Civil Cause 2015

ORDER OF THE COURT

MBAROUK, J.A.:

When the appeal was called on for hearing today, it transpired that neither the appellant nor his advocate entered appearance. The hearing notice has shown that service was effected to Mohamed Tibanyendera, advocate on 26-9-2016 who is the advocate for the appellant. That means the learned advocate for the appellant was duly served but failed to enter appearance.

That situation prompted Mr. Gabriel Paschal Malata, learned Principal Attorney who represented the 2nd and 3rd Respondents to pray before the Court that Rule 112(1) of the Court of Appeal Rules, 2009 (the Rules) to be invoked and dismiss the appeal. However, when he was reminded by the Court that we cannot dismiss an incompetent appeal for the reason that just yesterday on 12-10-2016, we had struck out Civil Application No. 212 of 2016 for the reason that the notice of appeal of this intended appeal is incurably defective. Then, Mr. Malata agreed with the Court and hence urged the Court that apart from the fact that the appellant and his advocate has failed to enter appearance at the hearing of the appeal today, but as the notice of appeal in support of this application has already been found defective in the ruling of the Court in Civil Application No. 212 of 2016 dated 12-10- 2016, this appeal has no legs to stand on. He therefore, prayed for the appeal which is not supported by a notice of appeal to be defective. For that reason be prayed for the appeal to be struck out with costs.

On her part, the 1st Respondent fully agreed to what was submitted by the learned Principal State Attorney that the appeal be struck out and she insisted to be awarded costs too.

As pointed out earlier, neither the appellant nor his advocate entered appearance at the hearing of the appeal today. However, it has also to be taken into account the fact that just yesterday on 12-10-2016 in Civil Application No. 212 of 2016 we have decided that the notice of appeal is incurably defective, hence we cannot invoke Rule 112(1) of the Rules to dismiss an incompetent appeal. The appeal at hand as it is, bears an incompetent notice of appeal. That surely renders the appeal which is incorporated with a defective notice of appeal not have legs to stand. For that reason, we therefore find the appeal incompetent and we hereby strike it out with costs to all the respondents. It is so ordered.

DATED at TABORA this 13th day of October, 2016.

M.S. MBAROUK

JUSTICE OF APPEAL

B.M. LUANDA

JUSTICE OF APPEAL

R.E.S. MZIRAY

JUSITCE OF APPEAL

I certify that this is a true copy of the original.

E. F. FUSSI

DEPUTY REGISTRAR

COURT OF APPEAL