Automated Summary
Key Facts
The case involves a civil appeal (No. 245 of 2018) by Alexander Mondeba against a 2018 judgment in favor of Tanzania Brush Products Limited for USD 5,400 in service charges and Tshs 10 million in general damages. The appeal was struck out due to a defective decree containing unmentioned general damages, violating CPC Order XXXIX Rule 1(1). The court rejected the appellant's argument to apply the oxygen principle (section 3A CPC) as the procedural defect was fundamental.
Transaction Type
Service Agreement for apartment building maintenance and shared services
Issues
The appeal is challenged due to a defective decree that includes general damages not mentioned in the original judgment, rendering it inconsistent and incompetent under Order XXXIX Rule 1 of the Civil Procedure Code. The court found the decree defective for containing Tanzania shillings ten million (Tshs. 10,000,000/=) in general damages absent from the judgment, which violates procedural requirements for appeals.
Holdings
The court struck out the appeal as incompetent due to a defective decree that included general damages (Tshs. 10,000,000/=) not mentioned in the original judgment. The preliminary objection raised by the respondent was sustained, as the decree accompanying the appeal was inconsistent with the judgment under Order XXXIX Rule 1 of the Civil Procedure Code. The court rejected the appellant's reliance on the oxygen principle (Section 3A of the CPC) to overlook this procedural defect, emphasizing that mandatory procedural rules cannot be disregarded when they affect the foundation of the case.
Remedies
- The respondent was awarded USD 5,400 as service charges contribution for a period of 27 months from October 2012.
- The respondent was granted Tanzanian shillings Ten million (Tshs. 10,000,000/=) as general damages.
Monetary Damages
10000000.00
Legal Principles
- The court applied the principle of 'substance over form' by striking out the appeal due to procedural defects in the decree, despite the appellant's arguments for a more flexible approach under the oxygen principle. The decision emphasized adherence to mandatory procedural rules in the Civil Procedure Code (Order XXXIX Rule 1) which require a valid decree to accompany an appeal. This aligns with established authority in cases like Mohamed Suleiman Mohamed Vs. Amne Salum Mohamed and Njake Enterprises Ltd Vs. Blue Ltd, where defective records were deemed incompetent.
- The ruling included a standard costs award, with the court ordering costs to be taxed to the appellant. This reflects routine application of costs principles in procedural dismissals.
Precedent Name
- Dhow Merchantile (E.A) Ltd Vs. Abdirizzak S. Tuke
- Victor Frank Ishebabi Vs. Leisure Tours and Holding and Others
- Njake Enterprises Ltd Vs. Blue Ltd and Rock Venture Company Ltd
- Mohamed Suleiman Mohamed Vs. Amne Salum Mohamed and 10 Others
- Mukisa Biscuits Manufacturing Company Limited Vs. West End Distributors Limited
Key Disputed Contract Clauses
The contract required the appellant to collect service charges for building management and security services, then account for all expenditures to the respondent (tenant) on a monthly basis. This clause was central to the dispute as the appellant failed to provide proper accounting for collected funds, leading to the breach of contract claim.
Cited Statute
- Written Laws (Miscellaneous Amendment) Act, No.3 of 2018
- Civil Procedure Code
Judge Name
E. E. Kakolaki
Passage Text
- The Mr. Balomi has invited this Court to invoke the oxygen principle as well stated under section 3A of the CPC as amended... It follows therefore that the first limb of preliminary object has merit and the same is sustained.
- It was Mr. Antunkulepo's contention that there is variance between judgment and decree... As to whether the preliminary objection raised does not meet the test set described in the case of Mukisa Biscuits (supra) I think this contention should not detain this court as the appellant has failed to support his assertion for just so stating so without more.
- In the circumstances and for the foregoing reasons, the appeal is incompetent and is consequently struck out. The appellant is at liberty to refile a fresh appeal but subject to limitation of time.
Damages / Relief Type
- Tshs. 10,000,000 as general damages
- USD 5,400 for service charges contribution over 27 months