YOKE GWAKU AND OTHERS v NAFCO AND OTHERS 1991 TLR 87 (CA) Court of App !" of T!#$!#%!

Civil Practice and Procedure - Court of Appeal Rules - Record of appeal not incorporating a formal or extracted order or decision appealed against - Effect - Rule 89(1) (h) Court of Appeal Rules Civil Practice and Procedure - Court of Appeal Rules - Record of appeal not incorporating a formal or extracted order or decision appealed against - !hether "hole order need #e extracted and incorporated Court of Appeal Rules - Record of appeal not incorporating a formal or extracted order or decision appealed against - Effect - Rule 89(1) (h) Court of Appeal Rules Court of Appeal Rules - Record of appeal not incorporating a formal or extracted order or decision appealed against !hether "hole order need #e extracted and incorporated $he appellants "ho had lost a suit in the %igh Court "hen appealing against it failed to incorporate a formal or extracted order or decision appealed against Contra the argument of the respondents that the appeal "as incompetent for failure to compl& "ith an essential step' counsel for the appellants sought to impress on the court that he "as under no o#ligation to dra" up the formal order #ecause he "as not appealing against the "hole order of the %igh Court #ut merel& against a finding "hich formed onl& a part of the entire order i ii Appeal is incompetent for failure to compl& "ith an essential step( !here a part& "ishes to appeal against a finding or findings "hich form onl& a part of the "hole decision' he is not o#liged to dra" up the formal order covering the "hole decision $he rule re)uires him to extract an order corresponding onl& to that finding or findings "hich it is intended to appeal against

*rder accordingl& +isanga and *mar' ,, A And -apigano' Ag , A . $he plaintiffs filed a suit in the %igh Court claiming inter alia' a declaration of o"nership over an area of land no" held #& the defendants under certificate of title /o 0112 3n the "ritten statement of defence the defendants averred' among other things' that the plaintiffs4 alleged rights over the suit land "ere extinguished vide 5overnment /otice /o 671 of 1989 in "hich case the suit disclosed no cause of action' and that this matter "ould #e raised as a preliminar& point at the commencement of the hearing of the suit !hen the suit came on far hearing the point "as accordingl& raised and arguments centred E on "hether 5overnment /otices /os 671 of 1989 and 88 of 1988 "hich "ere relied on as extinguishing the plaintiffs4 rights "ere valid Ruling on the point' the %igh Court (-unuo' , (-rs)) found the& "ere' #ut declined to 9 dismiss the suit #ecause there "ere other grounds on "hich the suit could proceed to trial $he plaintiffs "ere aggrieved #& the finding that the said 5overnment /otices /os 671 of 1989 and 88 of 1988 "ere valid $he& accordingl& sought and o#tained leave to appeal to this Court

against such finding :pon the appeal coming on for hearing' ho"ever' -r :m#ulla' Counsel for the respondents' too; a preliminar& o#<ection that the record of appeal does not incorporate a formal or extracted order to the decision #eing appealed against % $his' the learned Counsel su#mitted' amounted to failure #& the appellants to compl& "ith an essential step' in terms of rule 89 (1) (h) of the Court of Appeal Rules' as a result that the appeal should #e struc; out as #eing incompetent 3n support of that su#mission he cited t"o decisions of this Court in the cases of Arusha 3nternational Conference Centre v = A +avishe Civil Appeal /o >2 of 1988 (:nreported)' and ?hamsa 3 -ohamed or @il& Philips v %alima -ohamed Civil Application /o 6 of 1991 (:nreported) %e 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 11 =r $enga appearing for the appellants conceded the omission "hich he attri#uted to inadvertence on the part of his colleague "ho had prepared the record of appeal %o"ever the learned Counsel "ent on to su#mit that the omission to incorporate the formal order "as harmless #ecause it did not pre<udice the respondents "ho "ere full& a"are of the decision #eing appealed against' and "hich decision "as indeed in their favour !e could find no merit in the su#mission ?uch an argument could #e advanced in all the cases' including those cited a#ove' concerning this point #ut it "ould ma;e no difference $he rule is not reall& #ased on the re)uirement that the respondent should #e a"are of the decision #eing appealed against 9or' even "here the actual <udgment or decision #eing appealed against is incorporated in the record this "ould not meet the re)uirements of rule 89 (1) (h) $he point is that this is essentiall& a technical rule "hich indeed causes some in<ustice' for instance' to a part& "ho has to incur dou#le expenses to prepare the record of appeal a second time #ut so long as the rule is not amended or superseded it has to #e complied "ith Rel&ing on an or#iter dictum in ?hamsu4s case cited a#ove' the learned Counsel contended that this rule ma& #e E departed from in the exceptional circumstances of this case' the exceptional circumstance #eing that the order in this case "as dul& extracted #ut inadvertentl& omitted to #e incorporated in the record of appeal !e thin; that this is a ver& "ea; argument 9or' even if "e "ere minded to consider the o#iter dictum expressed in ?hamsu4s case a#ove cited' "e are )uite satisfied that Counsel4s mere inadvertence to incorporate the formal order in the record of appeal could not' #& an& stretch of imagination' amount to #e exceptional circumstance And finall& the learned Counsel appeared to contend that in an& event there "as no o#ligation on his part to dra" up the formal order #ecause he "as not appealing against the "hole order of the %igh Court( he "as merel& appealing against a finding "hich formed onl& a part of the entire order *nce again' "e are una#le to sustain this su#mission A decision ma& consist of one or more findings' and an aggrieved part& ma& choose to appeal against the "hole decision or against certain findings forming onl& a part of the "hole decision !e thin; that "here' as in this case' a part& "ishes to appeal against a finding or findings "hich form onl& a part of the "hole decision' and he is not o#liged to dra" up the formal order covering the "hole decision 3n our vie" the rule re)uires him to extract an order corresponding onl& to that finding or findings "hich it is intended to appeal against

3n the present case the Court order "as for refusing to dismiss the suit on the ground that although the 5overnment /otices /os 671 of 1989 and 88 of 1988 "ere found to #e valid' nevertheless the suit could not #e dismissed or not disclosing cause of action #ecause there "ere other grounds on "hich the claim could proceed to trial 3t "as therefore open to the appellants to dra" up the order in relation onl& to the finding that the said 5overnment /otices "ere valid 3n the result the preliminar& o#<ection is upheld $he appeal is accordingl& struc; out as #eing incompetent /o order for costs is made as the appellant is under legal aid