20160725 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA (DC) Civil Appeal No. 19 of 2015

BARCLAYS BANK TZ LTD APPELLANT

VERSUS

SAID MOHAMED IDD RESPONDENT

RULING Date of Last Order: 22/07/2016 Date of Judgment: 25/07/2016 SEHEL, J. This is a ruling on the issue raised by the Court, suo moto. It was noted and parties were invited to address this Court in respect of the decree that does not tally with the judgment. The discrepancies are patent on the prayers granted. The last part of the judgment reads: "The defendant is ordered to pay Tshs. 750,000/= being 25% of the total loan amount; Tshs. 280,0001= being loss of income from 1 Qth July, 2013 to tb October, 2013; Tshs. 20,000,000/= as specific damages; and Tshs. 1 0,000/= as punitive dama 1• And the last part of the decree reads: "IT IS ORDERED THAT, the defendant is ordered to pay the Plaintiff Tshs. 750,000,0001= being 25% of the total loan; Tshs. 280,000/= being loss of income from 10th July, 2013 to 8th October, 2013; Tshs. 20,000,000/= as specific damage; and Tshs. 10,000,000/= as punitive damages..." From the above quoted parts of the judgment and decree, it is evident that the decree does not tally with the judgment. Order XX Rule 6 (1) of the Civil Procedure Act, Cap. 33 requires that a decree shall agree with the judgment. The award of Tshs. 750,000,000/= as 25% of the total loan and the award of Tshs. 10,000,000/= as punitive damage do not agree with the judgment since these two figures are no-where to be found in the judgment. The extracted decree is contrary to the

pronounced judgment. Both Counsels for the parties conceded that the decree is contrary to the judgment and it was submitted by the Counsel for the appellant that the mischief had to be rectified by the trial Court. If this is the case, then what cause of action should be taken by this Court? Both Counsels left it to the Court to decide. In the case of Tanzania Ports Authority Vs. Pembe Floor Mills Limited, Civil Appeal No. 97 of 2001 (Unreported) (CAT-Dar es Salaam) the Court of Appeal of Tanzania was faced with the similar problem. In this appeal a preliminary objection was raised to the effect that the decree was fatally defective and therefore as 2 submitted that the appeal was incompetent and should be struck out. The Court of Appeal sustained the preliminary objection after noting that the decree before it did not represent correctly the judgment as pronounced and the decree failed to specify the reliefs granted. However, the Court of Appeal made an order, in the following words: "the decree be amended so as to comply with Section 101 (3) read together with Order XX rUle 6 (1) of the CPC." The Court of Appeal's decision was made in line with the case of Badrudin Hasham Lachani and Another v Pyarali Hasham Lakhani (1978) LRT n 26 which it cited in approval. In the Lakhani's case, the then East African Court of Appeal held: "Where a decree is inconsistent with the judgment,

it must be amended accordingly to agree with the judgment." With the above guidance from the Court of Appeal, I make an order that the decree be amended so as to agree with the judgment. I further borrow a leaf from the decision of the Court of Appeal in the case of Tanganyika Cheap Store Vs National Insurance Corporation (1) Ltd, Civil Appeal No. 37 of 2001 (Unreported) (CAT-Dar es Salaam) whereby the appellant was given a right to re-institute the appeal. I therefore direct that the appellant be put in a position whereby he can easily re-institute his appeal in this Court if he so desires within thirty days from the date of obtai 3 the decree from the District Court. I make no order for costs as, the issue was raised by the Court. It is so ordered. DATED at Dodoma this 25th day of July, 2016. B.M.A Sehel

JUDGE 25th July, 2016. Ruling delivered in open court at Dodoma under my hand and seal of the court, this 25th day of July, 2016 in the presence of Mr. Kalonga, learned advocate for the respondent and in absence of the appellant. B.M.A Sehel

JUDGE 25th July, 2016. 4