20041216 TZCA Dar es Salaam1

op oq 4ua4adwoDPU S2M OqM 1 'l11flOG Aq pu6;s ajam ou ' SJpio @q ol jt46no qD!LJM ()M3) snp aqj Inq ç 'woq2Q I- JO SUOSD SU52 S2M 'dIL' @qj 12L41SMOS 1edd2 40 PJOD@J @t4l - 32q SM uoqJ[qo 40 1" eqj dd o uo[qo AJ2uwJd 12J0 U2 P@Sl2J 's1uodsj susidi oqM @JeDOAP2 pui2j 'Mw21 içj 'ofW tA uo jnoq2 6uuq joj dn jq6nojq SM i UM 1 IP p10 SJ2A L12L41 3-JOW Si LpiqM 1dd2 U2 S2M Sn ajoj@g - :y 'osoI L661 JO ST 0 N lt?ddV IIAO DH U! 866TW11 8661 10 9 °N U0qeD!ddy DS!W DH U! 866TVL1 L661 Jo 6L V 91 S01SJ SU0fl3D!lddV SUOD DH UI 9661ZZ PIP (r 'ewoqa) (e5nAe .Jeqizue 404 pno) 45!H atp 40 U0!SD(l aip woij iddy) S1NQN0dS ...................................[ VSSflW G]WYHOW I1Y - Z 09 WON ItVH VSSflfrJT ONY SJNVT]ddv..................... [ 8fllD 1VN0IiVNi31NI NYWO Z [ INVNIS -19 QIHSVI V11flG9V aIHSVJ 1 -. NMJ28 8661 JO EOT 0N lV3ddV 1IAID (vr 'osii puy 'y 'OSOJW 'V['Vflfl2fll WVOD) JV9IZNVZ1V VINVZNVJ. dO lV3ddV dO fliflOD 3H.L NI 77 'II so. That being the case, the record could not be said to contain a valid decree recognized in law and it followed, according to Dr. Lamwai, that the appeal was incompetent and should be struck out. Mr. Patel, learned advocate for the appellants, objected strongly to the preliminary objection which did not conform to Rule 100 of the Court Rules, 1979 which requires that a respondent who intends to take a preliminary objection to an appeal has to give reasonable notice to the Court and to the other party to the appeal. He submitted that he had been taken by surprise by Dr. Lamwu because there was no notice at all, let alone a reasonable one. 1i said, rightly, that the appeal record had been with Dr. Lamw' .'u. ai 1998 and, therefore, that there was no excuse for not livi taken the preliminary objection much earlier. He beli'vl that the preliminary objection which was taken without p6o iit)hce was one of Dr. Lamwai's delaying tactics. He asked 111 .uurt to strike out with costs the oral preliminary objectici mid proceed with the hearing of the appeal. Dr. Lamwai conceded that ilww 'hould have been reasonable notice as required by Rule 1H() A I he Court Rules but explained that s4: 1 the record of appeal contained so many unnecessary documents that the point of law he had raised escaped hisnotice until the night just prior to the hearingdate when it came to his attention. Secondly, he considered that as an officer of the Court it was his duty to bring to tRI the attention of the Court the fact that in law there was no competent appeal before it. IJIL The Court considered the submissions from both counsel and was of the view that it was important to consider the preliminary objection raised by Dr. Lamwai but since Mr. Patel, and perhaps Dr. Lamwai himself, needed time to prepare for arguments on the point. raised it was prudent to allow for sufficient time. In the event the Court adjourned the hearing of the preliminary point and tl appeal to the next sessions of the Court. Rule 100 of the (ourt Rules empowers the Court to adjourn such hearing. OW After the adjournment the appeal has .uj.II1 come for hearing and this time round we immediately allowvj or. Lamwai to argue the preliminary point and disregarded Mi. I itel's renewed protestations which were meant to take the i itit back to last year before it adjourned the hearing of tl -w 1 , whimnary objection and the appeal. -I 1 We agreed with Mr. Patel, however, that the only point of preliminary objection which would be heard related to the question whether or not there was a valid decree in the record of appeal. In his introductory speech Dr. Lamwai pointed out that Civil Appeal No. 103 of 1998 which is before the Court related to three decisions of Dahoma, J. Three decrees were issued in respect of the three decisions. Even so, those purported decrees were signed not (R.I by Dahoma, J. but by Dourado, J. Since it was intended to appeal against those three decisions, three separate notices of appeal were filed but only one memorandum of appeal was lodged and one record of appeal was prepared and filed. Dr. Lamwai submitted that '.iiice there was no order for consolidation the filing of single memorandum of appeal and the opening of a single recciid of appeal 4) were irregular in themselves. But these have not hren raised as matters for a preliminary objection and we are tt'itng them merely as background information to the Court. low Of the three matters which Mr. tIH unilaterally consolidated into a single appeal, only Civil Apxt Nu. 15 of 1997 before Dahoma, J. needed a decree in appeal. is already mentioned, the decree I- là _ I 5 was not signed by Dahoma, J. but was instead signed by Dourado, J. IRI Similarly, the other decisions by Dahoma, 3. in High Court Civil I Applications Nos. 78 and 79 both of 1997 and High Court a Miscellaneous Civil Application No. 6 of 1998 the decrees (they should have been orders) were also signed by Dourado, 3. instead of -I Dahoma, 3. who had given the decisions. The question here is whether those were in law valid decrees. -t Dr. Lamwai submitted that such purported decrees contravened Order 23 Rule 7 read together with the definition of "judge" in section 2 of the Civil Procedure Decree, Cap. 8 of the Laws ( Zanzibar, henceforth referred to only as the Civil Procedure D.iee. Later he conceded, after submissions from Mr. Patél, that E. regards the purported decree in High Court Civil Appeal No. of 1997, which was meant to be a decree in appeal, the rivant provision would be Order 46 Rule 35 (4) of the Civil Procdiie Decree but the decrees (read orders) following decisions iii Ifie applications, the relevant provision would still be OH .13 Rule 7 of the Civil Procedure Decree because High Co Uvil Application Numbers 78 and 79 of 1997 and High Court ( ivil Application No. 6 of 1998 were original decisions of the Hiqh 6 Rule 7 of Order 23 of the Civil Procedure Decree reads:- 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 on decree has been drawn up in accordance with the judgment, he shall sign the on decree. The term "judge" as used in the Civil Procedure Decree is defined in section 2 thereof as - "the presiding officer of a civil court". As for a decree in appeal, Order 46 Rule 35(4) of the CivI Procedure Decree provides that the decree shall be signed and died by the Judge or Judges who passed it. Dr. Lamwa Iiitted, I- therefore, that the purported decrees which are in I i record of U appeal were not "decrees" within the meaning of I ldw and Rule V 89(2)(v) of the Court of Appeal Rules, 1979 wi. ii0t complied with. Since the record of appeal did not contain 'y of the decree, the appeal was incompetent and that it sholl I struck out. V It must be said for the i ii ihat decrees could not have I- followed from the decision. II Iilorna, J. in Applications Numbers 1' 7 78 and 79 of 1997 and from Miscellaneous Civil Application No. 6 of 1998. What should have followed were "orders". The term "order" is defined in section 2 of the Civil Procedure Decree as "The formal expression of any decision of a civil court which is not a decree". So, an "order" cannot be a "decree" and v/ce versa. Mr. Patel conceded that the purported decrees should have been signed by Dahoma, 3. who had given the decisions - and not by Dourado, 3. However, he argued that it was not his fault that after they were drawn up and sent to the High Court Registry, they were taken to the wrong judge who signed them. He said the fault shot ild : lie with the court registry staff. He cited the decision of this CMs iiI in 21s' Century Food and Packaging Ltd. v. Tanzania Sugar Producers Association and Two Others, Civil App I No. 91 of 2003 (unreported) as authority that a party shout I iiot suffer the t - consequences of faults or errors committr'd ly court registry personnel. The appellants' appeal ;lttId not be declared incompetent because the decrees (or 'i I: in the case of two of the decisions by Dahoma, 3.) wen-' IiI'u 1 y court staff to Dourado, 3. who signed them. He prayd lh,il IIe Court should overrule the preliminary objection and 1w, it tI ippeal on merits. It" I It is not disputed that the decree in High Court Civil Appeal No. 15 of 1997 and what should have been orders in High Court Civil Applications Nos. 78 and 79 of 1997 and H.C. Miscellaneous Civil Application No. 6 of 1998 ought to have been signed by Dahoma, J. who is known to have been in office at the material time, as required by Order 23 Rule 7 of the Civil Procedure Decree in the case of the decisions in the applications, and Order 46 Rule 35(4) in the case of IRt the appeal. Decrees or orders which do not conform to the law are not valid in law. It would follow, therefore, that the record of appeal in Civil Appeal No. 103 of 1998 does not contain "the decree or order" as required by Rule 89(2)(v) of the Court of Appeal Ri I 1979. The crucial question that has to be asked and answ1d is I-i what would be the status of an appeal in which the recoil dppeal does not contain the decree or order of the High Coui The question has vexed us consideralily, because the t . Hot omission from the record of a valid decrec v.', illegedly the fault of the court staff as suggested by Mr. Ru 1. "V do not agree with Mr. 1' Patel in the first place that court ';lil J old take the blame and that the appellants be exoneratcul. H wiul.l appear that Mr. Patel knew I all along that the re.ouul ipl)Hal did not contain a legally I 9 acceptable decree, yet he did nothing to rectify the position presumably because he believed he could get away with it by simply passing the buck, as it were. We think that Mr. Patel could have put things right as soon as he realized that he did not get from the court on what he needed by writing to, or seeing, the Registrar of the High on Court to complain that the wrong document - a decree signed by a judge other than the one who had given the decision - had been supplied to him and demand to be provided with the proper decree to enable him prepare a correct record of appeal. That he did not do and we have no qualms about laying responsibility squarely in hi, hands for the undesirable turn out of events. What has bother'I, however is whether the appeal has to be declared iricorñ iI in which case it will be struck out or it can be salvaged by ill iwI1g the appellant, through his advocate, to file a supplemenly 'rurd which would contain a valid decree. On a number of occasions this COL111 kr. Alowed a party time to file a supplementary record when Hu :ord was found to be incomplete. Indeed earlier on H' day when this preliminary objection was heard the Cent ,t.td tine to an appellant to file a supplementary record ()i witmi , . tucause it was realized that the I 10 ___ record of appeal was incomplete. It seems to us however that the Court would take that course if what was missing from the record of I appeal was not, inthe particular circumstances of the case, one of I the essential documents which are required to comprise the record of I appeal. For example, in Farrab Incorporated v. Official Receiver [1959] EA 5 it was held that absence from the record of appeal of a II formal order embodying the decision appealed from renders an II ' appeal incompetent. In Dr. Masumbuko R. M. Lamwai v. Venance Francis 171 Ngula and Another, Civil Appeal No. 56 of 1997 (unreported) II preliminary objection was taken to an appeal on the ground th;iI IIi ii record of appeal did not contain the decree or order to be )J caled a against. The advocate for the appellant applied to be .pg.ilied with U the decree subsequent to the preliminary objectkn v'iIñ a view to In filing a supplementary record which would 11tH the decree. Indeed, such a supplementary record ww. iii ki,.l filed. This Court 116 held that the filing of a supplerneitity urd subsequent to a C'U preliminary objection would not the appeal. It said iii i l it ilteady existing defect on IN ri • 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. no So, that being the legal position, once it is accepted that a preliminary objection has already been raised regarding the lack of a valid decree in the record of appeal, we cannot now allow Mr. Patel 1 to file a supplementary record containing a proper decree signed by Dahoma, J. What then should follow? To answer that question we have to answer another quest io' what happens to an incompetent appeal? 111 In Robert John Mugo (Administrator of the Et.iie of the 4 late John Mugo Mama) v. Adam MoHel, Civil /\ndl No. 2 of 1990 (unreported) a decree in appeal was • d by a District Registrar instead of the judge who passed it, I uired under Order 39 rule 35(4) of the Civil Procedur' ( F 1966, which is in pari mater/a with Order 46 Rule 35(q) c1 i Ft 1 ivil Procedure Decree. This - Court said :- I We ... agree that a decree in appeal which is not signed by a judge as required by Order 39 Rule 3(4) invalidates the purported decree. Then the Court concluded :- fRI Therefore, for the reasons stated above, we are bound to sustain the preliminary objection made by counsel for the respondent With that end in view, we hereby direct that the appeal be struck out from the register under Rule 82 with costs In Civil Appeal No. 43 of 1996 - Dr. Fortunatus Lwanyantika Masha v. Dr. William Shija and Anotlwr RI (unreported), an objection was taken to the appeal inter a/ia hi iuse the record of appeal did not contain the drawn or extraclvd wder in appeal. The Court sustained the preliminary objecti, holding the r I1 appeal incompetent. It said - IJI The law as it now stands is thiii lilure to extract the decree or order in of Rule 89(1)(h) and (2)(v) of tht of Appeal IRl Rules renders the apl)(lI 0 ompetent. The finding that an ip1.d i , . incompetent has constantly resuRl hiking out such appeal L11 LJ I WAR INK In Robert John Mugo, this Court opined that there is no difference between extracting an invalid decree, as was the case in our present appeal, and failure to extract a valid decree, as was the case in Dr. WI Masumbuko R. M. Lamwai case or the Fortunatus L. Masha WI case. In all such cases the appeal is incompetent and is struck out. WI Before we end this ruling we wish to comment on a submission by Dr. Lamwai that, if we should sustain the preliminary objection, we should order that costs be paid by Mr. Patel personally. The reasons he gave were that, first, Mr. Patel could have taken remedial measures well before the preliminary objection was taken and, second, the first appellant is not resident in Zanzibar but r"ides overseas and has no known property in Zanzibar out of , which costs I could be paid. It would be easier to enforce an oI(kr for costs against Mr. Patel who is resident in Zanzibar. We have given due consideration to those submissions and 'I have not been persuaded that we should uider Mr. Patel personally no to pay the costs. Furthermore, iio proof was given that the no appellants do not have any ast, in Zanzibar out of which costs no could be paid. I 14 For all the above reasons we uphold the preliminary objection which was taken by Dr. Lamwai in this appeal and strike out the tppeal with costs. •We so order. DATED AT DAR ES SALAAM this 16th day of December, 2004. D. Z. LUBUVA ill JUSTICE OF APPEAL --c) 1 I / - k;A N \, :Y )z J. A. MROSO I- 0 N JUSTICE OF APPEAL J. H. MSOFFE i- JUSTICE OFAPPEAL 1• • - I certify that this is a true copy of the original. MANYIKA ES11 Ak