ally mohamed athumani mohamed vs sharrif hussein 2009 tzhc 103 13 july 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL N0.136 OF 2006 ALLY MOHAMED ATHUMANI MOHAMED.............APPELLANTS VERSUS SHARRIF HUSSEIN.................................. RESPONDENT Date of last order: 12/5/2009 Date of Ruling: 15/5/2009 RULING Aboud, 3. This is a ruling on the application of the leave to withdraw the appeal with liberty to reinstitute fresh appeal. When the parties appeared before the court on 12/5/2009 the learned counsel for the appellant, Mr. Ndazi submitted that they have noted that the drawn order is defective as it bears different date with that which the ruling was pronounced. He argued that this contravenes order 20, rule 7 of the Civil Procedure Code (Cap 33 R.E. 2002). He supported his application by the decision of the Court of Appeal in the case of The Security Group (T) Limited vs. M/S Scandinavia Express Service Limited, Civil Application No. 54 o f 2008, where the court decided that in order to correct the defective order, a fresh record of appeal containing a proper order has to be filed according to law. This has been the position of the law from the case of Robert John Mugo vs. Adam Mollel, Civil Appeal No.15 of 1991. He concluded by a prayer that the court allow him to withdraw this appeal and this court referrer to the decision of the Court of Appeal in the case of Security Group, supra where the court directed the appellant to start afresh its appeal after withdrawal of the appeal. He said the appellant should first seek the leave of the court to appeal out of time as by the time he obtains the decree properly dated the time will be running against him to file the appeal which its judgement bears the some dates. In his view the court of appeal had that meaning when ordered the appellant to re-institute the appeal within 14 days from the date of obtaining the proper drawn order from the trial court. Responding to the submission of the applicants' counsel, Mr. Makulilo learned counsel for the respondent did not object to the application. However he disagreed with the prayer that re- institution should be allowed to be made within 14 days from the date of obtaining the proper drawn order from the court. He said the time should need not to be fixed by the court and referred the applicant to file his appeal according to law after withdrawal of his appeal on the basis of the defective decree as it is decided in the case of Security Group. Mr. Makulilo further argued that the two decision referred in this application above have different decision of how the fresh appeal is to be filed, that is while the Security Group did not given specific period to file such fresh appeal after obtaining the properly signed decree, in the case of Tanganyika Cheap Store ordered the appellant to do so within specified period, 14 days. In conclusion he said the court can only direct the appellant to fellow the law in re-instituting the appeal and prayed for costs. In his rejoinder, Mr. Ndazi for the appellant argued that the Court of Appeal did not depart from the practices when deciding in the Security Group case. The court of appeal had the same decision that a fresh appeal should be filed after obtaining a proper decree in case the appellant withdrew the appeal on the basis of defective decree. However he said the Court of Appeal did not go further to show how that fresh appeal can be filed according to law. On the issue of costs Mr. Ndazi said the respondent should not be given order for costs because it is not the appellant fault to have the defective decree, but they had to follow the procedures which are correctly in place. I agree with both counsels for the parties that to arrest or rectify the defective decree which in facts renders the appeal to be incompetent before the court, appellant need to apply to withdraw the appeal at liberty to reinstitute it This can be done by filling a fresh appeal after obtaining the properly dated decree as provided for under order 20, or 7 of the Civil Procedure Code. I also fully in agreement with the respondents counsel that in filling or reinstituting the appeal following the withdrawal of the defective appeal the appellant need to be mindful with the law governing appeals in this court as clearly shown in the case of Security Group. It is not the duty of this court to numerate how parties should follow the laws. That remains to be the obligation of the appellant with their Advocate for those who can afford to engage them. On that basis I do not find the reason of specifying time as I am mindful to many factors which may either facilitate the process of rectifying the defective decree in the lower courts or delay such process. It is not guaranteed that all defective decree will be rectified within the prescribed time. As regard to costs, I do not see any reason of denying costs to the respondent. There is no doubt that it is not the appellants fault but this appeal was filed on l l th/9/2006, almost three years now and the respondent has been preparing for the appeal and appearing before the court since them. This has costs implication and the appellant especially his counsel were suppose to take this move of withdrawing the appeal as earlier as possible as he ought to know the current position regarding defective appeals on the basis of having decree which bears different dates with that of the judgment. In the results I grant the order to withdraw this appeal with liberty to reinstitute according to law. The respondent should be paid costs. It is so ordered. w. : 7 '\ I.D. Aboud l £ * >. JUDGE 13/5/2009 \ Extracted this..........^ 7^ ....... day of .... ........................... 2009. JUDGE