Scandinavian Enterprises v Jemadari and Others (Miscellaneous Civil Appeal No. 13 of 1993) [2000] TZHC 681 (14 September 2000)

SCANDINAVIAN ENTERPRISES v. HASSAN M JEMADARI __________________________________ AND OTHERS _______________________________ 1 /7 was at the same time so accommodating to the respondent ’ s side, but we will say no more about it. As to whether Mr Mwakasungula had no standing or whether the appellant ’ s application was vitiated by its composite nature, it was for the High Court to decide, and we would not wish to prejudice the issues by any comment. Accordingly, the appeal is allowed with costs, the ex parte judgment is set aside, and the suit is remitted to the High Court to hear and determine the appellant ’ s application filed on 5 April 1990. SCANDINAVIAN ENTERPRISES v. HASSAN M JEMADARI AND OTHERS HIGH COURT OF TANZANIA AT ARUSHA (Msoffe, J.) MISCELLEANOUES CIVIL APPEAL No. 13 OF 1993 Civil Practice and Procedure - Appeals - Appeals to the High Court - Memorandum of Appeal filed without attaching to it a certified copy of the decree appealed against - Whether fatal to the appeal - Order xx. rule 20 and Order XXXIX, rule 1(1) of the Civil Procedure Code 1966. An objection was raised agaiUst this appeal to the High Court on the grounds that the memorandum of appeal filed was not accompanied by a certified copy of the decree sought to be appealed against. Held: (i) No certified copy of the decree was attached to the memorandum of appeal and this was fatal for offending the law; although Order XXXIX, rule 1 (1) of the Civil Procedure Code makes no provision for a “ certified ” copy of the decree, it must be read together with Order xx, rule 20 which provides for a certified copy;

178 TANZANIALAWREPORTS [2002]T.L.R. A (ii) Obiter: Apoint of law can be taken at any time irrespective of the stage reached in the material proceedings. Appeal struck out B Case referred to:

1. Lazaro Athumani v. Mikari Sawere, HC - MSH - Civil Appeal Number 8 of 1993 (unreported) Statutory provisions referred to:

1. Civil Procedure Code 1966, Order XX, rule 20 and Order XXXIX, rule 1(1)
2. Housing Appeal Tribunal (Appeals) Rules 1987, rule 57(1) D Mr Makange, for the Respondents RULING F (Delivered 14 September 2000) Msoffe, J.: Mr Makange learned advocate for the first and second respondents has filed and argued a notice of objection to the appeal. F In his view the appeal should be struck out with costs in that the amended memorandum of appeal is not accompanied by a certified copy of the decree sought to be appealed against. According to him, the inaction by the appellant contravenes the provisions of Order G XX, rule 20 of the Civil Procedure Code 1966 read together with rule 57(1) of The Housing Appeal Tribunal (Appeals) Rules 1987. To fortify his argument Mr Makange has cited this Court ’ s decision (Mushi, J.) in Lazaro Athumani v. Mikari Sawere (1). H On the other hand the appellant has generally conceded that no certified copy of the decree was attached and hence prayed for time to find and attach one. There is no dispute that no certified copy of the decree was attached. This, in my view, was fatal for offending I the law - ( the provisions cited to me by Mr Makange). I am aware that Order XXXIX, rule 1(1) of The Civil Procedure Code 1966

YAHYA SAID NKOLOMA v. NBC HOLDING CORPORATION LTD 179 makes no provision for a “ certified ” copy of the decree but it will be appreciated that this provision cannot be read independently of Order XX, rule 20. In other words, the copy of decree mentioned under Order XXXIX, rule 1(1) must have been the one earlier certified under rule 20 of Order XX. It is unfortunate that the point canvassed by Mr Makange is being raised at this rather late stage in the appeal when a number of other steps have since been taken in the said appeal at great expense by the appellant and the respondents. I hope, however, that parties will appreciate that a legal point can always be taken up at any time irrespective of the stage reached in the material proceedings. For the above reason, I accordingly uphold Mr Makange on the notice of objection and strike out the appeal with costs. It is so ordered accordingly. YAHYA SAID NKOLOMA v. NBC HOLDING CORPORATION LTD COURT OF APPEAL OF TANZANIA AT DODOMA (Ramadhani, Lubuva and Lugakingira, JJ. A.) CIVIL'APPEALNo. 44 OF 1997 (From the decision of the High Court of Tanzania at Dodoma, Msoffe, J, dated 27 January 1997, in Civil Case No. 12 of 1995) Banking - Banking accounts - Whether a bank has a right to combine customer s accounts. Banking - Bank combining a customer ’ s accounts - Whether notice to customer is necessary.