20051117 TZCA Dar es Salaam2

0 IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: RAMADHANI, J.A.; MROSO, J.A; And NSEKELA, J.A.) CIVIL APPEAL NO. 73 OF 2003 BETWEEN ANJUM VICAR SALEEM ABDI ... APPELLANT AND NASEEM AKHTAR SALEEM ZANGIE ... RESPONDENT (An Appeal from the Decision of the High Court of Tanzania, at Moshi) .(Munuo, J.) dated the 7 th day of January, 2003 in Civil Case No. 20 of 2001 ••••••• RULING RAMADHANI, J.A.: When the appeal came up for he~ring Mr. Mughwai, learned advocate for the respondent, raised a _preliminary objection· that the extracted decree is invalid because it was signed by the Deputy Registrar, High Court, Moshi, and not by the learned judge who determined the matter or by her successor as required by O XX R 7 of the Civil Procedure Code. He relied upon Robert Mugo v. Adam Mollel, Civil Appeal No. 2 of 1990, Ndwaty Philemon Ole Saibul v. Solomon Ole Saibul,. Civil Appeal No. 68 of 1998, and Tanganyika Cheap Store v. National Insurance Corp. (T) Ltd. Civil Appeal No. 37 of 2001. On behalf of the appellant; Mr. D'souza, learned counsel, conceded the anomaly but prayed that the preliminary objection be struck out ,/ 2 0 and asked for an enlargement of time and for leave to amend the record of appeal under Rule 18. He sought to distinguish this appeal from Mugo which emanated from an appeal in the High Court and so was governed by O XXXIX R 35. He pointed out that decrees under that order can only be signed by a Judge and do not fall under the powers conferred to the Deputy Registrar of the High Court under 0 XLIII R 1(d) of the CPC. He submitted that in the present case the decree is from the original jurisdiction of the High Court and falls under O XLIII. Mr. Mughwai contended that the principle in Tanganyika Cheap Store and in Mugo is the same: a judge who decides a case has to sign the decree. He submitted that the distinction of the original and appellate jurisdiction of the High Court is very fine and does not negate the principle. He objected to leave to amend the record of appeal. We agree with Mr. D' Souza that O XLIII R 1, does not give the Registrar or Deputy Registrars of the High Court powers to sign decrees extracted from decisions of the High Court in its appellate jurisdiction which was the case in Mugo and Saibul whose decrees were governed by O XXXIX R 35(4). We again agree with Mr. D' Souza that Tanganyika Cheap Store extended the- prohibition of Deputy Registrars of the High Court to sign decrees from the appellate jurisdiction of the High Court to cover decrees from decisions in the exercise of its original jurisdiction under 3 C O XX R 7 though these decrees are specifically allowed to be signed by Deputy Registrars under O XLIII R 1 (d). However, this Court in Tanganyika Cheap Store came to that decision not per incuriam but was fully aware of O XLIII R l(d): We are of the settled view that the Deputy Registrar had no competence to sign the decree under Order XX rule 7. A Deputy Registrar is not a Judge for if he was one, he would obviously have signed the decree as Judge and not as Deputy Registrar of the High Court. The use of the word "shall" in Order XX rule 7 indicates that there is no room for any other person to sign the decree. Order XX rule 7 has specifically designated Judges and magistrates to sign decrees as appropriate. We do not read anything in Order XLIII rule 1 (d) as abrogating the specific power of a Judge to sign a decree after satisfying himself that the decree has been drawn up in accordance with the judgment. This Court obtained inspiration from Mugo where it was said: We also agree that a decree in appeal which is not signed by a Judge as required by Order 39 Rule 35 (4) invalidates the purported decree. This is because such signature by a judge is mandatorily required and it authenticates the decree. ( emphasis added) This Court went further to quote from the Saibull's case: The requirement that a decree must be signed by a judge who made the decision is rooted in sound reason, namely, that the judge who decided the case or appeal is in the best position to ensure that the decree has been drawn in accordance with the judgment. ' \ 4 O From those two previous decisions of this Court, the learned panel of Justices of this Court in Tanganyika Cheap Store concluded: With respect, the same reasoning applies to decrees under Order XX rule 7. As explained before, we are of the firm view that since Order XX rule 7 specifically authorizes a Judge to sign a decree, the Deputy Registrar · was not competent to sign the decree herein. We construe Order XX rule 7 as being mandatory. We agree with that reasoning. 0 XX R 7 by using the phraseology "when the Judge or magistrate has satisfied himself that. the decree has been drawn up in accordance with the judgment, he shall sign the decree" there is an obligation for a Judge to sign the decree personally. However, Mr. D' Souza pointed out O XLIII R 1 (d): Subject to any general or special direction of the Chief Justice, the following powers may be exercised by the Registrar or any Deputy or District Registrar of the High Court in any proceeding before the High Court - (a) (b) (c) ( d) to sign decrees under Order XX, rule 7; We have two observations to make: First, rule 1 is "[s]ubject to any general or special direction of the Chief Justice". So, its operation is not absolute as that of O XX R 7 which is not contingent on any direction of the Chief Justice. Second, this rule 1 is not mandatory but it is permissive that the signing of a decree "may" be done by "the Registrar or any Deputy or District Registrar of the High Court". . '' I 5 On the contrary rule 7 is couched in mandatory terms that a judge or a magistrate "shall sign". Section 53 of the Interpretation of Laws Act (Cap 1 of R. E. 2002) leaves no doubt as to the effects of the words "may" and "shall": 53.-(1) Where in a written law the word "may" is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion. (2) Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed. Now, if under O XX R 7 a judge MUST sign a decree ~xtracted from his/her judgment we ask: Under what circumstances would the Registrar or a Deputy Registrar or a District Registrar be required to exercise his/her discretion to sign such a decree under O XLIII Rl (d)? It is obvious to us that the two provisions are contradictory and surely they cannot co-exist. It is because of this anomaly, we think, that O XLIII R 1 is made subject to "any general or special direction of the Chief Justice" so as to make it compatible with O XX R 7. We recommend to the Honorable Chief Justice to deem it fit to give directions under O XLIII R 1 to remove the unwanted situation of seemingly concurrent jurisdiction in signing decrees. But until that is done, the mandatory duty imposed on judges to sign decrees has to be complied with. 6 So, we uphold the preliminary objection and hold that the decree is invalid. As in the previous instances we do not strike out the appeal but allow the appellant to amend the record of appeal. The appellant is given thirty days to do so from the delivery of this ruling. DATED in DAR ES SALAAM, this lih day of November, 2005. A, S. L. RAMADHANI JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL. H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original.