Masasi v Minister for Labour and Youths Development and Others (Ruling of the Court) (Civil Appeal No. 152 of 2016) [2016] TZCA 10; (16 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.)

CIVIL APPEAL NO. 152 OF 2016

PENDO MASASI .………………………………………. APPELLANT

VERSUS

1.   THE MINISTER FOR LABOUR

AND YOUTHS DEVELOPMENT

2.   THE ATTORNEY GENERAL

3.   TANZANIA BREWERIES LIMITED            .…… RESPONDENTS

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

(Sumari, J.)

dated the 13th day of November, 2013 in

H/C Misc. Civil Application No. 28 of 2009

……….

RULING OF THE COURT

RUTAKANGWA, J.A.:

The appellant was aggrieved by the decision of the High Court (Sumari, J.) sitting at Mwanza in Misc. Civil Application No. 28 of 2009. The said decision was delivered on 13th November, 2013.

The appellant attempted to challenge the decision in Civil Appeal No. 20 of 2014. That appeal was found incompetent and was struck out on 5th August, 2014. The appellant, apparently, sought extension of time before the High Court in Misc. Civil Application No. 124 of 2014, to lodge a notice of appeal out of time. From the record of appeal it appears that the appellant was granted extension of time within which to lodge the notice of appeal out of time. However, the very record of appeal does not contain copies of the chamber summons and its supporting affidavit or affidavits and annextures. Furthermore, the record of appeal does not contain the proceedings pertaining to the said application for extension of time.

When these glaring omissions were brought to the attention of the appellant he readily conceded them.

Both Mr. Obadia Kajungu, learned State Attorney for the 1st and 2nd respondents and Mr. Rahim Mbwambo, learned advocate for the 3rd respondent were of one accord. The conceded failure to include in the record of appeal the identified vital documents violated the mandatory requirements of Rule 96(1)(d) and (k) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and rendered the appeal incompetent, they contended. They accordingly urged us to strike out the incompetent appeal under Rule 4(2) (a) of the Rules. The appellant agreed and pledged to follow the law to the letter.

In the circumstances, we have found ourselves constrained to agree with Mr. Kajungu and Mr. Mbwambo. Settled law is to the effect that the infraction of Rule 96(1) of the Rules as above demonstrated, renderes, the purported appeal incompetent. See, for instance, the Court’s decision in the case of Mariam Iddi (As an administratix of the Estate of the late Mbaraka Omari) v. Abdulrazack Omary lazier (As an administrator of the Estate of the late Abubakar Omar and Another, Civil Appeal No. 82 of 2014 (unreported).

All said and done, we find that this appeal is incompetent and we according by or strike it out with no order as to costs.

DATED at MWANZA this 17th day of October, 2016.

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

S.A. MASSATI

JUSTICE OF APPEAL

S.E.A MUGASHA

JUSTICE OF APPEAL

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

P.W. Bampikya

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL