20061117 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR {CORAM: MROSO, J.A. NSEKELA, J.A., And MSOFFE, J.A.) CIVIL APPEAL NO. 94 OF 2006 ABDALLAH RASHID ABDALLAH .................................... APPELLANT VERSUS 1. SULUBU KIDOGO AMOUR} 2. SAID ISSA SAID ................................. RESPONDENTS (Appeal from the Judgment and Order of the High Court of Zanzibar at Vuga) {Mshibe, J.) dated the 6 th day of June, 2006 in Civil Case No. 40 of 2002 RULING OF THE COURT MSOFFE, J.A.: This is an appeal and a cross appeal against the decision of the High Court of Zanzibar (Mshibe, J.) written on 29/5/2006 and delivered on 6/6/2006 in Civil case No. 40 of 2002. Briefly stated, at the centre of dispute is a piece of land lying at Matemwe, Zanzibar. In the High Court the appellant lost in a suit he filed against the respondents in respect of the land in question, 2 hence this appeal. Likewise, the respondents are dissatisfied by some of the findings and conclusions in the judgment, hence the cross appeal. When the matter was called on for hearing it seemed to us that the decree the subject of the appeal and the cross appeal was wrongly dated. Whereas the judgment of the High Court was delivered on 6/6/2006 the decree was dated 8/6/2006. Dr. Ringo Tenga, learned advocate for the appellant, readily conceded that the decree was wrongly dated but sought to be given time to file a properly dated decree. Mr. Mnkonje learned advocate for the respondents objected to Dr. Tenga's request and maintained that since the decree is invalid, the appeal is incompetent and should be struck out. We think it is pertinent to begin by quoting the provisions of Order XXIII Rule 7 of the Civil Procedure Decree, cap 8 of the Laws of Zanzibar. The Rule reads as follows:- 3 7. The decree shall bear the date of the day on which the judgment was pronounced, and, when the Judge or, in the High Court, a Registrar has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. (Emphasis supplied). It seems to us that, as already observed, the decree the subject of the appeal does not bear the date of the day on which the judgment was pronounced. Since under Rule 7 it is mandatory that the decree bears the date of the judgment it will follow that the decree the subject of this appeal is invalid. Since it is invalid, it will be obvious that the record in Civil Appeal No. 94 of 2006 does not contain "the decree or order" as required by Rule 89 (1) (h) of the Court of Appeal Rules, 1979. The crucial question that has to be asked and answered is what would be the status of an appeal in which the record of appeal does not contain the decree or order of the High Court. 4 In a number of cases this court has held that failure to extract a valid decree renders the appeal incompetent. For example, in Dr. Masumbuko R.M. Lamwai v Venance Francis Ngula and Another, Civil Appeal No. 56 of 1997 (unreported) a preliminary objection was taken on the ground that the record of appeal did not contain the decree or order to be appealed against. The advocate for the appellant applied to be supplied with the decree after the preliminary objection with a view to filing a supplementary record containing the decree. A supplementary record was indeed filed. The Court stated:- " the supplementary record of appeal lodged by the appellant --- in the case before us makes no difference to the incompetency of the appeal which was already defective by the time the Notice of Objection was lodged." And in Rashid Abdulla Rashid El Sinani and An~ther v Musa Haji Kombo and Another, Civil Appeal No. 103 of 1998 (unreported) this Court citing the cases of Dr. Lamwai (supra); Robert John Mugo (Administrator of the Estate of the Late • 5 John Mugo Maina) v Adam Mollel, Civil Appeal No. 2 of 1990 (unreported); and Dr. Fortunatus Lwanyantika Masha v Dr. William Shija and Another, Civil Appeal No. 43 of 1996; held that there is no difference between extracting an invalid decree, as was the case in the present appeal, and failure to extract a valid decree. In all such cases the appeal is incompetent and is struck out. In the event, for the above reason, we strike out the appeal. Since the point the subject of this decision was raised by the court suo motu we make no order as to costs. Having struck out the appeal it will follow that the notice of cross appeal is also incompetent because it has no leg to stand on. It is also struck out with no order as to costs. It is so ordered accordingly. • . 6 DATED at ZANZIBAR this 17th day of November, 2006. J.A. MROSO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. ---·- - . \ 1~ ,· .__<'J V. ../ -4'J \ ~-1_ _ / ( S. . UM YIKA) UTY REGISTRAR