20150804 TZCA Dar es Salaam

. ,· :i ..., .,... ·.· -I •t . ·. ,._, ~ (t:. ~·-· . IN THE COURT OF APPEALO.F TANZANIA ..·AT:DAR ES SALAAM ...·.· ; •:: ,• r (CORAM: LUAND~;~.A;,:MJA:~-/ <.· d MMILLA, J.A.J . < CIVIL'APPEALNO'. ' . . ·.•2aOF•··2oos : ·. ~ . . cltIBANK TANZANIA LIMITE,D ··~······••n••·; ............................... APPELLANT •··.·V·ERSUS•. L 1ANZANIA TELECOMMUNICATIO~s\ •· .

COMPANY LIMITED 2.TANZANIA REVENUE AUTHORITY·..••.. · .·. · 3. TANZANIA COMMUNICATIONS REGULAtOJfY ...... REDPONDENtS . AUTHORITY (AS SUCCESSOR TO THE JANV!NIA . COMMUNICATION COMMISIONJ .

4. VIP ENGINEERING AND MARKETING LIMITED 5. THE LIQUIDATOR OF TRI-TELECOMMUNICTION TANZANIA LIMITED (''TRITEL") (IN LIQUIDATION) (Appeal from the parts of the Ruling finding and Orders of the High Court of Tanzania {commercial division) at Dares Salaam) (Kintaro[ J.). dated the 7 th day .of June, 2003 in Misc. CommerdaLCase No. 6 of 2003 . __ .;.~-----.:.~-------~--- . . RULING.OF·T'HE·couRT ' .·· , . . t ·. 4th June, & 19 th August 2015 · MMILLA, J. A.: The appellant,. Citibank TanzanicrUmlted, instituted Civil Appeal No. ,23 of. ·. . .: : . . , ·. . .. _:,·.· . . . :-- .. ··' ' 2008 in this Court following its dissatisfaction with parts. of the ruling of the . . . ·. · . ·. High Court of Tanzania; Comm~,~cial Divis[on at Dal es Salaam handed ·down • : ... ·"' ; ~ \...• on lih June, 2003. Its team df advpcates, namely Mr. DiHp Kesaria, Mr. Tom, · ·.· Nyanduga, Ms Fatuma l<atun,e 9nd f'ir, ~odsbn Nyange, learned advoca~es, filed . a memorandum of . app~aJ Which, raised 19 gro.unds, pin - pointing the;· .. ,"·-· ... ··: . . -. . ' -. .. -. ' . .. . ·. ·. areas of the ruling which are the subject9fcomplaints. There are five Tespondents in this regard namely; Tanzania· ,Telecommunication Company Limited;· Tanzania Revenue Authority, Tanzania Communications Regulatory · Authority ·. (as successor to Tanzania · Communications Commission), VIP Engineering and Marketing Limited and

the Liquidator of Tri-Telecommunication Tanzania Limited CTritel") (in . - Liquidation). Mr. George Magambo, Mr. Juma Beleko, Mr. Ally Hassan Bwanga, Mr. Michael Nga lo and Prof. Gamaliel: Mgongo F}mbo, learned advocates, represented the first, second, third, fourth and fifth respondents respectively . . ·• Mr; Nga lo and Prof. Firnbo raised preliminary objections· on points of law on . behalf of their respective clients . . . . The first notice of preliminary object_iqn. was . : filed ... on 1th June, 2008 by . . . . : Law Associates, Advocates and NgatO& Company, Advocates. It comprised of .two groqrids as follows:- .1. that th~record ofc3ppeal. is irreparably defecti;e qSJt'.viqlates 'Rule 89 (1) ... .(h) ·ofthe ·' Court of Appeal Rules,.(;. 'N. No. 115 . ..·., ·,.· .• . . . . ' . ·' ·or 1979 read . · ·• ·•. ·~u1¢s'{929·1Jy 'inc·orporating an invalid decreeifbph<l ~t:(J~g<=s . 354 - · 36friof,the RJc~rdof Appeal dated 25 Febtuffify, 2008.. th 2.:Furthe/th?r the ·record of appeal is. eye11 rnorei defective. by . . - . . ., ·. . .· ihcorporating a defective judgment found onpages:317 ~ 353 of the Record of Appeal dated 25 th February, 2008 in violation ·of Rule 89 (1) · (g) of the Court of Appeal Rules G. N. No. 115 of 1979 read together with Order XX Rule 3 and/or Rule 8 of the Civil Procedure Code Cap. 33 (R. E. 2002) and Rule 24 of the Companies Winding Up Rules 1929. The

second notice .. of preliminary objection was filed· by Mr. Nga lo on ., behalfofthefou~hrespondent on 22 nd May, 2015. This.one consisted of three . .. . . groundSclS follows:: ...... L Th(:}t the app~af is incompetent because the d~t~ of iheidtawn order . and the date .of delivery of the ruling differ. , ,• ,• ··. . ··. ·' . . . . . . ~ 3 2. Jh~tthe <Jppeal .. . is premature for the reaso/J thatthe appellant had . . . . sfilr bas other remedies under section. J98 T1Jofthe Companies 1 and :' .. . ·-. ·~ . :. .. . . .. .. . . . .. - . . . - brdinance Cap 212. which the appeHantctidnot-pursue and has . not eihalisted ... . the same.. ·•: .;- .

3. That thi{ Hounourable Court has n6 jurisdiction td correct the alleged _: .-· . .·. ·· .. : . . . . ',. ·. ··_. : n1isprintof section 269 (1) of the Companies Ordin~nce Cap 212 in the first ground of appeal. The third notice of preliminary objection was filed by Mgongo Fimbo and Company, Advocates, on 2th May, 2015 on behalf of the fifth respondent. It _rais~d a lone ground of preliminary· objection similar to the'first ground raised nd by Mr. Ngalo in the notice dated 22 May, 2015 that the appeal isincompetent - - and should be struck out with costs on the ground that -the drawn order in appeal does n_ot bear the date on which the ruling was pronounced~ Upon being given chc1nce.to argue the preliminary objections raised, rvlr. Ngalo ·discussed all of th~m, beginning with that one· touct)ing on 'the. . ·, ·. . . . .... . . . .. . ' .. difference in dates bezyyE=en the ruling being complained of and the drawn . order. As aforesaid, tti~trs tf1e 9round which has also been r;,ised Qy Prof, Fimbo.- 4 . ; . . We have found it approprjate to beQfn bµr discussion With this grot1nd- .· ·'_becaCse in our view, if upheld, :it i$ suffiqi~~t:to dispose of the entire app~al. ·. · .. ;.· . - . However1 before we can do so· ;;e- have found it useful to give the brief b~ckground "\.-_ . ·. facts of the matter : . a.s ·CTiay-be reJeva'ntto the ground under foci.1s. . ....-.·.. ,· : , .... '

. . . • .... ·. · In 2003, the first, second-:antj : .. thi_rd> respondents jointly petitioned the_._. - ;- . Hig:hCourt . . . of Tanzania, Commerc:ial ·. Division at . Qar es Salaam to compulsorily ·'- ,:. ' . . . . ·- . wind up the fifth respondent :com.pa.r,y undersection 167(e) of the Companies · ·. Act and the Winding Up Rules 1929. Then, the first respondent was claiming .· from the fifth respondent a debt of USD 1!,125,968, while the second and third respondents were claiming clebts of TZS 6,729,665.612 and TZS - 3,279,357,735 respectively; Upon advertising the petition for winding up of the said. company in the local newspap~r, the . fourth respondent served the ·--._ petitioners with notice of intention to appear .in the -petition to sup·port the petition both as a 40% shareholder of the fifth respondent and also as a - . . _creditor claiming from the latter not less than i.Jso 18.628 million. After complying with the initi_af procedures, the matter was heard 1 ! ·- . ·,.· resultirm into the ruling under focusdated 12., 6. 2003 vide which the. tric:il_ .- l _ court ·o~derEed the winding up of the nfth re~pondent and appointed the late. .. · -. ·. ,', .· .. . . . .. . . . :; . ·- ., .: .. :,,. f Pefer.Bakilana as -the Hquidator' thereof! also it invalidated the appellant's -..· if I !r '; .\,. purported de.benture . '.. . . . dateo.. . 6 April,' 20:01, for having been

created Wi.thQUt .·..· • ,' th ' : . . . . .'·.. . .. -_ •, ·. ' . . . . ... , . -· proper corporate authorization. The liquidator was directed to investigate. t~~ . . . affairs of the fifth respondent including·. its relationship' with th~ appellant.. On . . . . 24th .June, 2003,: the Deputy Registrar of the High Coqrt of Ta~nzania, Comn,ercial Division drew up, dated .~nd signed an order of that court fot the .· winding up of thefifth responde~t. The shown difference indates between .the ruling. and the drawn order is what has necessitated the preliminary . . . . · objection ground . under consideration. . . In his submission on the point, Mr. Ngalo pointed out that while the . ruling which is the subject of appeal was dated 12.6.2003, the drawn order was dated 24/6/2003. In his view, that contravened the provisions of Order XX Rule 7 of the Civil Procedure Code cap. 33 of the Revised Edition, 2002 (the Code) which requires, among other things, for the decree to bear the date . . . . of the day on:which the decision was pronounced. Order,)()( Rule 7 of the· Code provides that:- . . · "The decree shc1/J bear the date of the day on. which the Judgment was . pronounced ancl when the Judge ot magistrate has satisfied himself that - lhe decttJe has been drawn up in accordance -with the judgment he shall . •, <sign{he decree. " 6 He cor1tendeq that $ihce RUie 89 (1) of the

Tan?<Jn)a P)url; of Appeal Rules, _. ·, ', . :, . ' . : . . _; .· • ' . ·• • . . . ::-. . . :··. _.: • .= :_ • :· : . .· ~ ·,. ' . . . ' " . 1979 (the old Ryles) :required the record of appear to c:ontalnr among other things, the,Cf_~cree·ortjr~wn order which is the subject•.Qfa.P:pe~J,;and that such decree 9t':8:,-tiWrT :ordef. must be proper in all respects, :ahyt:hJrig Jess renders .. ·.- •··=,.: :···;-,_' .· ,._: ,_··. . . . . . . . . . . .. . . . the appear incompetent\~rid liable to be struck Ollt, . .·. . ·., .·, . He relied:.on tbe case of .:· . .·.. ,.... .::·>·:'· .. .:-- _ ·;:, ·-: . :..:.-✓-~---. " Gobanya ]=. -,.Hezwa . ~- . . \,.' the Commissioner . ,• ' . ·. Gener~J, . ·'·. . Tanzania . R.evenue . . -. . : .· ·.. . . . : . ',· ~; -· <· Authority,.CiviLAppeal No; S3 of 2008, CAT (unr~port<~d} in which, quoting the case .·ofu61africo ltd and 2 Others v. Exi111 Bank (TJ Ltd, Civil Appeal No. 30 of 2006, CAT (unreported), the Court said at page 4 that under Order XX Rule 7 of the Civil Procedure Code, the decree must bear the same date as the judgment:, and thc:1t the · date of the decree i$ th~ date ori which the judgment was delivered. Mr. Ngalo submitted also that he was aware that the appellant attempted to file a supplementary record to cure that defect. He_ contended that it was not proper because a supplementary record cannot t>e flied tq cure ~ defective • •

• ·- • • • -· < appeal. On this, he relied on the case of Haruna MJ)angaos and 9Q2 others . . .: . : v. Tanzan•ia Portland -Cer11ent Co. Ltd, Civil Appeal· No. ·10, 0(2007, CAT . . .. (unreported) ,n whichhesajd, the Court stated thatthe proper rerriedy was to 7 - ,. .•. go back to tH~ . . . _.,. High . . ·court. :. . He therefore . . urged the Couitto uphold, . . . . this ground ··. . . .:; . · and strike oLJtthe appeal .. ·... · ··. ··:.· . : .i •, _.. ·· . . .· . Prof.·. f'trnbo het~lhe . same vieW expre~sed b)' Mr. Ngalo on the point . . .· . ... ·. ' .. : ·. : . '., . . . . . . :Re1ying on the case pf K:apinga & C()rt1p~r1y, Advocate~ v. National Bank · c;>f Commerce -.·· LtdfCivil ., . Appeal NoA2of ?007, CAT {llnreported), he stressed •, -:· : . . : . . ' . . . ' . that this Court has :, consistently held th.clt W;here the dale of judgment differs . . · wfth the detr€eor . . drawn·order,thatdecre_e ... . or drawn order is defective/and . or .· . • . . . invalid. So also that, a defective decree cannot, on the basis of Haruna Mpangaos case (supra), be cured by filing a supplementary record. Like Mr. Ngalo, Prof. Fimbo pressed the Court to uphold this ground resulting into · striking out the appeal. On the other hand, Mr. Kesaria marshaled the submissions of the appellant's team of adyocates. He submitted that the complaint that the drawn . order is. defective for bearing

a different date to that appearing in theruHng is . . .. . . not well founded on account thatthedrawing and signing of the order.in that regard was not governed bythe Code, but by Rule 38 of the Company Winding .: . ·. ' ' . . Up Rules, 1929. He reli~d . . . . . on the oro case of Farrah IncorporateclV. Official: ' . ... . . . . . :· :·-. ·.. . ·.. ··.· ·,.. ' :. . . . ,. ,. . . Receiver ancl .Prpvi~io.nal PCJuictator, [1959] E.A.

5. According to.him_,,Rul~ ·38 thereof . envisages -~ ..: the: ·parties to appear before the R~glstrarbn . . .. . .. the day . . . '· .. • . . , . 8 ·_.·_-_• :hext to register their document~iafter whi¢hthe latter (Registrar) is mandat~d ·. •·.• .. : -_ -• -• __ ; bj':·make an order such as th@: cme: ur1der scrutiny. The said Rule 3ff:bf ·-. - ,:tdhipanies Winding Up Rules, l9.2Q proyides that;- - ''R. 38: It shall be the (/pty; o(th~ petitlonet"r or his solicitor or London agent, and of a/lotherper)ons WfJo /JqVe appeared on the hearing ofthe . . ._·_petition, at the latest011/the~ayfollowing the day on whi~han .. . . . .. tJrder for winding up ita companXIs pronounced in Court fo · leave at the Registrar'.s office allthe documents required for the - . purpose of enabling the Registrar to complete the order forth with. //[Emphasis is providetj] Mr. Kesaria submitted that in the circumstances of the present case, the qocuments were delivered to the Registrar 12 days later, therefore that there . ' ' ' . . ·. . ' . is nothing defective thereof. While insisting that there is no time limit under that Rule, he maintained that it could hav_e been otherwise had these -_- - proceedings arisen from the Code. He Urged {he Court to overrule this ground. · · We have given anxious consideration to the rival submissions of the· advoca,tes for the parties. We note;that couns~I for the

parties agree on one -.• . :thing 'that the ruling and the drawn order un'der, scrutiny beardifferent dates.'. , ··.,. ,. . ·.. : ' . "' ··• ·. However, ~hey holddifferent vie~s on wh~ther or not that Constitutes a defect lnthe circumstance$CJfthe pres~ntcase . We desire to.begin :,.·,- by making a general observation .thatptQceedings . . . . ' ·._. . of .. .,. . ,,_ , civil . nature are:: . : : .... . . :gener,glly governed by the Code unless other'-"{ise provided by . · :.,:. ·:, :-~ ·• . .: . . .•. . .. ·. .... ·. ·:. ': . . :. '.· . other laws. ·so tha't,.:ir1:a proper case the matter under di$cussinh would entail . ', that the provisions~f Order xx Rule 7Qf that ?tatute, would,aJ:lply~ . As correctly submitted by Mr. Kesaria~ the proceedings from which the present matter arose were winding up proceedings, therefore ·governed by the Companies Winding LJp Rules, 1929. That. is in. tandem with the Court's expression 011 the point in Farrab Incorporated case he referred us to. In that case, the appellant company claimed to be a creditor of Phoenix Productions Ltdi, a company of which the Official Rec_eiverwas the Provisional . .· . . .. . . Liquidator,: and sought to prove in the winding-up for "a sum of not less than twenty-five thdusand pounds". The appellant's proof wasrejected by the · Proviskina I uquidator under Rule 141 of the English Companjes (Winding-up) . . . - .' .

. . . . ·.. ·Rules,. 1929, w~ich then applied in Kenya.·. The appellant applied to the s~ . pre1T1€touitfof ~- .-. an order reversing the . . Provisional Liquidator's. decision, but . . . . .. his application . . was refused and he vvas orcferedto . . pay costs .. ·- . The . appellant' . ,:,. ·-· . . :. .10 . preferr~d lfurtherappec1L At the hearing the Court drew_ attentibnto the fact that no ' }orfnai order' embodying the decision of the ·supreme ·Court was . . . . . -": .. . . _._; . · .., ,,.. . . ·, . .· ... included In the ricord and the issue was whetherthe:~~qi~toA oftheSupreme. . .' . ·. . ,.· ·.... ··',.--'": ' . ., . Court .was .fjudgment ,., . giving rise to a decree, or was . . .a•iulihg resulting in an.. ·... ••' . .. -. . . ... ' order. i(if.'was the Jatt~r, the appeal would be inc6rt1p:~tentU111e~s the formal order had:been. extracted~. Counsel for the appeHant.:c~rripany submitted that the Supr~m~ : Court's . . ·. . decision .· was a decision given '•. . . on . appeal arid therefore ' . a . . ·.. . . '. . . .' : :·· . . decision in a- "suit", that is, a judgment which would result in a decree, and .. further.that the appeal to the Supreme Court had· been· brought in accordance with the Civil Procedure (Revised) Rl,lles, .1948, c1nd not . under Rules 5 and 8 of tile Winding-up Rules. It was held that:- "{i) . .tf1e appec1/ . to·. the Supren1e Court under r. · 141 of the English . Winding"'UP Rules was brought under and in accordance with the · procedl!fe prescribed by r. 5 and .r. 8 of· tho_se Rules and not in accord,anc;e. with. any procedure prescribed by ·tbe Civil..Procedure . . . ·Ordinanc0 .andRules. .... Jr -., . .. . . .. See also the. case of Faharl Bottlers Ltd and Another y. R,.egistrar of Companies ancf An.o.t\i~r {?000J T. L. R.

102. Inthis case too;th~:::Courtsaid . . ; ,· . .I ·- .:.. ·.. ·-·· . : : •. '; '. ·.-::. '..,, . .- •· winding up proceedirlg§.We:r~ governed by Company Wir)dil)g .UP . , . • :-: . . .. . . . . .. p.u}~s/ 1929. ·. . ::, ... ~ ·-.' i, . 11 . : . ,• .. : '·. ·-~ . Admittedly, Rule38 of_ the Winqing Up Rules, 1929 is silent on whether - :_ .: , or · not the drawn ord~-r .·. . ·. . . . .· must bear the -.. $ame . ' date appearing . in.-... the ruling. · : . ,. . .. . . . '. .,However, it has set time limit within·Vv~Jch'the Regjstrqrmay draw the order... ' We are saying so because that Rul$ directs parties, ottheir counsel and /or . ·,: . : ·...:.._-,:~_,.:'/,,:>, _· . · . ,···. · agents, at the latest on the· day (qi1owang : - . '. . . the day on which_,. an order ·.. . : ·. . . •, .,., _·. . :.tor winding up of ·a company is :prb116-unced in Court, to leave at the ·. R~gistrar's office au the documents required for the purpose of enabling .· .. the Registrar to complete the orde/fotth with. In our considered view, those words constitute the time limit, thus connoting that if it is outside that ·time; it will amount to non,.complianc:e with the Rule. For that reason, the . Registrar's order ought to have been signed at the latest the day next, that is, 13.6.2003 and not 24.6.2003 as it were. However, the major issue remains . . whether or not the drawn order in the circumstances

of this case ought to bear the date of the day on whichthe decision was pronounced. The practice in our Jurisdictionseems to be silent in respect of winding up proceedings. However, that is not the case in India for example Jn Which .· . . .. ,. . . . :: .· .· .. ,· ·:· . . .-· ·. . · .. · .. . . ·. . winding up proceedings . are . governed by -~the Companies Act of 1956 andthe . :- . . . . . ' Companies (Court} RUies, · 1959 which- were replicated1 though With stight ·.· • •' • • • • • • • •,•• ,", ,• • • ,e modifications, from the former Rules, that is, the Winding Up RUies; 192Q. In . 12 . <that jurisdiction for instance, a drawn order. emanating from winding op proceedings becomes fataHycief~ctfv~ i.fifdoes not bear the date on whkh the . ,decision Wa$ pronounced. That:.it:rn tet~s· of.Rule 37 (1) of the 1959: eodlf . ' ... ·.. .<,Rules. That Rule stipulatesJha(:-:, ; ; 11Every order, whether rnat(e:In.. Court or in chamber~ shall be. drawl) up.· .. · by the Registrar, unless In .any.prqceeding or class of proceeding$ the •· . ..·Judge or the Registrar, shallditect ~hat the order need not be drawn~up. Where a direction is given that no order signed or initialed by the judge · . making the order or by the. Registrar shall be sufficient evidence otthe order having been made. The date of~very order shall be the da.te on which it was actually made., notwithstanding that it is

drawn up and issued on a later date. [Empha$iS supplied]. /F ·, Although the relevant Rule in ourjurisdic:tion is sil~nt on the point as aforesaid, W<;, believe that theirs is good law and. provides guidance to our problem at . . . . .· ,• ·: . .· . ·. hand because it is common principle of law that a decision of the Court ; ·. ··. · l:)ecp111es binding upon the parties at the; date it ispronounced, hence that the: : . ._:. . ' •, ,. .._·. . period:ofHmitation of time start to run .from there. We are also of the view : ·. . ·, .. ·. . . .. .· . .' ' . : . . . ',)h~f forth€ sake of completeness,there •llllJ:SLbe'a Jink between the drawn·. .. ·- . ~ . . . ' . . . order and the r~H~g·. The rationale to this was best <:aptured irr the case of . . . .... . ._· Kap,nga & Co111~;any; Advocates (supra). . \ . . . : ~ ·. - -· •, . . :i,· .·_ ·;_ ., . . '·. ,... _; .·_. .. _.: __ -.. . In Kafli11g•~>S case, Jhe Court posed a question r~~q_rding the· !€gal .status of an appJgfvvhich)s ~ . .. . ·,, . accompanied by an extract~.o/otqer . ' .-. : which . does . .. .. . . . . •, . . ·..... ,. ' . not bear the date ~hen the ruling was pronounced. V\/bji~ retiting several -, . . . . ·. >..::·: . ca;es which de~'.ltWith,.the point in the past( the Court said-ifw~s evident from . those decisions:.that ifan appeal does not bear the date of the day on which the judgment. or ruling was pronounced,

that constitutes a fundamental irregularity which goes to the root of the matter, and renders the appeal incompetent. As t◊ the rationale for a decree or order to:·b~ar a date of the judgment or ruHngi the Court quoted with approval, Mulla' on the Code of Civil Procedure (15th Edition) at page 1524 and stated that:- . : . . "The date ofa decree, and by extension ofan Ordd;};mportant . . . . . . . '. . .not only in If]Ckoning time for appeal but illso forp[!rposes of · period of lt01it9tion in the case of an application to· se,t_ a.side an ex _. ···- parte decrS(j(Jr order, Furthermore the right to ex-~cutea,decree of . . _··_.. •. order ' .- ' accrutis . ·. from ,·' the date it is pronounced, noiofJ . . lb~ day it is .. . . · · ·. sig;ed. ·we:jte, therefore, firmly of the ·view tluifan order . . ,, :' ' •, . :. . . >:·· :·i. . . . . . . . -_ . ; -· -. . ·. - " "' .. ·._. ~-·.. : . Which does not bear the date when t/Jejudgn}~nt or ruling ..J, ivas :j,,tq(Jof1nced is not valid. It fo/low;s th,t,an appea/to .. ·.: . ,:·' ,· .. , . ... . . . ., ··:·.::•.;__:i.·· '" ·.. . . this ~Jllrt which does not contain a corr~ctly dated decree . or.orde/~ill not have complied with t!Jep~quliements of .-·: , . ' .',·. ·.' .· .. ,_.. . . . .. . . . . ·,.· . . · ... Rui~ ::-:~9(1) (h} of the Court Rules/ -.J.JF7-9;:,•~··ir' [Emphasis ·sJpp!ieJi •· We desi;~:td restate the correctness of this

propositio'n; ..... Even; we fouoc:f nothing barring us from cafHnr{Jr1to... the aid other procedural laws in our jurisdiction when dealing with decisions which result from winding up proceedings once it comes to further steps which may be preferred bythe parties, for example, when any of the them decides to appeal. To the contrary, we have for_ example section 220 of our Cqmpanies Act Which lends support to the position we have taken above. It provides that:- · ''Appeals from any order or decision made or given in the matter of the . •.. . winding up of acompany by the court may be heard trJ same 111anner and subject . --_ to the . . same conditions as appeals fro.111 . . . a,11y..Q,:der. .or . . : . . . . .·. · , ·.:;·: decision_ of the court in cases within its ordiQary jl!ris(/iction." .• • • • • I •• • • :,.•••• • . . . ": : _:· [Emphasis provided.] . . In our settled . . . mind-,. . the. . fact . that this section instructs 9ppe2i'ls . ·.... from any . ', . . . . ' ~ . .. .. .. . . ' orders or decisiohS:gjven .. . in winding up proceedirigs to ·be h~ard;ln th¢·: same ' . . . . 15 . ,. . manner and subject to -the -sanle ½oriditle>ns as -appeals frbm any <>rders or decisions of the Court, sfren9theris our position that compliance i With0tder XX Rule 7 of the Code is ;i~Cl119sfsuP, conditions contemplated by ·..··• : . . . : .' . . . . . ; . _- _.·- .• - . ' that section,

therefore that the <cfravVh.' o:rder in the circumstances -of the : -_- - - - present appeal ought to bear the'date dM{Whtehthe decision was pronounced.: -- - - On the basis of the above; we-:find:'add hold that it was imperative .. _ -· for the drawn order in this appeal to~b¢~rthe date of the day on which . ' . . . . ·-'. .. :, : .. :: . . - _ · the rulihg was pronounced, therefore.that the difference in dates thereof constituted a fundamental defect. Thus, we agree with Mr. Ngalo and Prof. Fimbo that since Rule 89 (1) of theold Rules required the record of appeal to contain, among other things, the decree or drawn order, and that the drawn order was to be proper in _all respects, anything less rendered the appeal incompetent and-Ha.!Jleto be struck out. It is also incontrovertible that the appellant's advocates attempted . . . . _to file a supplementaryre-cordto cure that clefect. As already pointed out, f\1r. . . . . . ... :· . . . ,•·. ·. :_ ·. . : Ngafo and Prof. Fimbo subrnittedthat a tjefective decree cannot, on the basis_ . of Haruna Mpangaos case (supra); .be cured by filing a supplementary." - - - record. 16 -. - . . ,.. .... ,.~:.. . . bn their part, Mr. Kesaria and:hist~am of advocates submittedthat the . ·. ....··. ,. .· _:· :.. . :-. . .•. ;: said supplementary record wa~ r.iotJorrn'kny filed and was improper to refer to ' .. , . it. . We have taken note tlla.t

th~·app~!Jant filed a supplementary recqrd. It ·. . ,... ·: .- . ,·. ·,:. . . . . •, =.,:;: ·.: ..-.~---:_ ..... ··.: .:::/ ., . ·. . -< ...-_ " . .. . .: : . ·:: . -:'.: . . · ,_. ·..··· . :may .not have been formaUy:fileq, .butJt is ther~i,n the record. We also n?te that there is no clear directi9n ._··. . . . . ' ... ·- ·_ in the Rules as to .how one may lodge suc:h a ... ....; _ . ·.___ ;--·-.: ·. :· .. :. :·_· _.:_. . ·. : . ·. .·. . record. Be it as it may, the crucial i~sue would be. whether or not it was appropriate for them file the said supplementary record to cure that defect. We think that this aspect should not detain us. As correctly submitted by Mr. Nga'/o and Prof. Fimbo, this point had the occasion of being discussed by the Court in, among others, the cases of Haruna Mpangaos and Kapinga & · Company, Advocates (supra). ·. In the former case of Haruna IYlpangaos, ·Haruna Mpangaos and · · . colleagues were losers in Civil Case No. 173 of 2003 which was instituted in .· the' High Court of Tanzania at Dar es Salaarr). Upon being dissatisfied, they ····• pl'epafed ahd lodged a record of appkal . .in thisCoUrt. Unfortunately, the said ' . . . . .· .·. · . recqrd,of.appeal contained an imprqpe,rly dat~d·•detree. They successfully applied for a. properly dated decree, prepared 9 supplernenMry record, and lodgedlt JnCqq,t. : · . Whe0/tfie}:•§J)P$~L was called on for

hearing, tne; adVQtate for the respondent:rai~etj:a' . . . - . pr~Jicnlnary objection, on .a point .. .. ·: . . . ,••· qf 1aw.1:b~t:the ,. .-,.: appeal .. ;.." .. ... ·.. _ . ·- .:· . ~:. . ... was incompeteh(oh qCC:()Unt .. that the decree, the subjedt-_:· o(tog a.ppeal, . . ·;-.:., was. ·,•. ' •, , ., . '.. . invalid . .Elaborating .o~ the point, it was submitted for the. responaeOt that under sub-rule (1) of Rule 92 of the old Rules, only the respondent could file a supplementary record of appeal if the record filed by· the appellant was . . defective or insufficient. It was submitted similarly that under sub-rule (3) thereof, an appellant did not enjoy the same right, and that the appellant , . . . could only file a supplementary record of appeal cqnt9 ining ''such other documents" as would be necessary for the further· determination of the appeal - , . . :· .· . .. ' . •... ·.• as provided underitem i~k'' of sub-rule (1) of Rule 89, A supplementary record of app¢.al Cohtainit)g a properly dated decree,. it Was·. further suomitted, was not amongst the . sort of "such other documents" envisaged uod~r the item . . .· ,' . . : . ·, The (:ruciaL issue for determination by the Court:. v,.,as whether . . ' .. . .. -·. . or not the suppfementqry r~card . of appeal validated the· alr~ady defective rec:o:fd of ' :· ·:; :. . .· ' ·_ .·. . c1ppeal. In thC= end, the Court beld

that> 18 . ( . I,~·.·. !tise~/cientthat •, . . . . the defect in the recordofappea{titedon . ~ ·. ': . ..,. . . . ' 1.2.2007 . ,• ' . . . . .. . was .-· .a9FcJred under Rule 92(3) by the supp!ernentc1ir record of appeal ,.·. ' .·· :: ' . . . . . .. . ·. __ :: .' .. _... .· . __ . · •· filed on·i/1.2.l007. .The copy of a valid deci~e ought.to ha.vebeen fileci ·with:fn'etecordofc1ppeal within the time jJrescrib~d·underRute 83 (1) of ·, lhe Courl: Ru/es. it such time had expiredi:he ~ppella11~oughtto have resorted to Rule 8 lor extension of time either fof fifing /he copy of the decree as partof the record filed on 1.2.2007 or for filing the ltesh record as the record of appeal in place of the orlginaldefective record.'/ For the reason of. being ·incompetent, the Court struck out the appeal with costs. Once again, we reiterate the correctness of that conclusion. Certainly, the circumstances which obtained in the case discussed above were similar to those facing us in the present case, As such, the consequenc<::s are supposed tobetheSame. In the final .analysis therefore, we uphold this ground of preHrninary objection on account thatthe appeal was incompetent in that the drawn on:ler bore a different date ·. to the•ruling which is the subject of appe,al; . .. andthat . .. a . .•' . . · . : . defective decree . c~nnot, ·.. . on the basis of Haruna , . Mpangaos case ($t)J)ra) ·.· .

•" . 1 tJ~ . . .. . . .. ·. ,.·· . . · 19 ...·. cured :_.,.. ,··... . by filing .· . .. a supplementary ..· . r~cord. . Thus, ,· for reasons we have ass}gned .·. . . _'. . · thEtappeal ·-:·.--'. _.:.. ,: is struck out with costs .. . .·. ,·. ' ·. QATED at Par es Salaa~Jhis4~d~iof/l;IJgust, . . .... ··.. 2015.·, .. ., . . ',_.. ·.- ·.. .. . . .. . . . B. M' LUAN'DA Jusr·•··· :. r. ·i:'.··. AJPeAL · ,S.· MJASiRl .· JUSTICE:OFAPPEAt . ..a. M. MMJLLA •.

JUSTICE OF APPEAL I certify that this is a true copy of the original.

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