Ruling Civil Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL APPEAL NO. 146661 of 2024 (C/F Civil Case No. 19 of 2020 in the District Court of Moshi at Moshi) FELISTA KINANA CHUWA………………….……………….. 1ST APPELLANT DISMAS RAPHAEL MMASY ……………………………….. 2ND APPELLANT VERSUS OSCAR LUCAS KIMARO DIDAS RAPHAEL KARIA ………………..RESPONDENTS THE HERITAGE INSURANCE CO (T) LTD RULING 5th & 28th November, 2024 MONGELLA, J. The appellants herein were plaintiffs in Civil Case No.19 of 2020 in the District Court of Moshi at Moshi (henceforth, the trial Court) which was determined in the respondents’ favour. Aggrieved, they preferred this appeal. In the course of proceedings, that is, on 27.08.2024, the third respondent raised an objection, to wit: The appeal is incompetent for being in contravention of the provisions of Order XXXIX Rule 1 (1) of the Civil Procedure Code [Cap 33 RE 2019] in that the Memorandum of Appeal is not accompanied by the decree appealed from. Page 1 of 8 As such, the point of objection had to be resolved first. Parties addressed the Court on the same by written submissions. They were both represented by learned counsels whereby the 3rd respondent was represented by Mr. Karoli Valerian Tarimo and the appellants by Mr. Benedict Bagiliye. Submitting in chief, Mr. Tarimo briefly averred that Order XXXIX Rule 1(1) of the Civil Procedure Code requires a memorandum of appeal to be accompanied by decree of judgement from which the appeal is preferred. In addition, he referred the case of Onala H. Services Limited vs. Simba Oil Company Limited (Civil Appeal No. 182 of 2023) [2024] TZHC 31 (11 January 2024) TANZLII, which cemented on that position. Considering the position of the law, Mr. Tarimo challenged the appeal at hand for being accompanied by a drawn order and not a decree. He thus prayed for the appeal to be dismissed, with costs. In reply, Mr. Bagiliye faulted Mr. Tarimo for misconceiving the application of Oder XXXI Rule (1) of the Civil Procedure Code. He contended that the provision would be applicable if the appellants had attached neither a decree nor a drawn order. Faulting the trial Court, he submitted that the appellants were supplied a copy of the drawn order and not a decree despite efforts to be supplied a decree. He contended that it is in such circumstances that the appellants, in one of their grounds of appeal, that is, the second ground, also challenge the trial Court’s act of issuing a drawn order and not a decree. Page 2 of 8 Mr. Bagiliye further contended that since the concern is raised as a ground of appeal, this objection lacks qualification as such. He explained that a preliminary objection cannot be raised in respect of an issue in dispute and subject to determination. He added that the appellants have attached a drawn order issued by the trial Court whose propriety is an issue to be determined on this appeal. He found the circumstances of this case varying with those in Onala H. Services Limited (supra) whereby neither a decree or drawn order was attached. Mr. Bagiliye further condemned the preliminary objection terming it as unnecessary and a wastage of the Court’s time and of the parties. He supported his averment with the case of Karata Ernest & Others vs. Attorney General (Civil Revision 10 of 2020) [2010] TZCA 30 (29 December 2010). He finalized his submission by praying for the objection to be overruled, with costs. Rejoining, Mr. Tarimo averred that the appellants’ counsel admitted into attaching a drawn order and not a decree. He alleged that a drawn order and a decree are different legal documents. Referring to Section 70 (1) of the Civil Procedure Code he argued that an appeal is only preferred against a decree. That, according to the facts advanced by the respondents, the refusal to get a drawn order should not be countered by an appeal as it is an administrative act. In his stance, grounds of appeal should emanate from the judgement of the Court and not otherwise. He stressed on his position that the issue at hand being an administrative one, it is unappealable and the requirements under Page 3 of 8 Order XXXIX Rule 1 (1) of the Civil Procedure Code cannot be overridden. Mr. Tarimo argued further that there are several orders against which an appeal can be preferred as provided under Section 74 (1) of the Civil Procedure Code. He said that none of those orders include being issued a drawn order instead of a decree. He insisted that the administrative error should be dealt with administratively and not challenged by an appeal. In the premises, he maintained his prayer for the appeal to be dismissed with costs. I have considered the rival submissions of both parties’ counsels. As acknowledged by both counsels, filing of an appeal into this Court is governed under Order XXXIX Rule 1 (1) of the Civil Procedure Code, which requires a memorandum of appeal to be accompanied by a copy of the decree appealed against. For ease of reference, the provision states: “Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded.” The provision aligns with that of Section 70 (1) of the Civil Procedure Code, which states: Page 4 of 8 “Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction.” The matter at hand, originates from original proceedings to which a decree is made. The appellants have however preferred this appeal through a memorandum of appeal accompanied by a drawn order. A drawn order is derived from applications or interlocutory matters dealt with by the court. The situation in the matter at hand is quite different from the one in Onala H. Services Limited (supra) whereby there was no decree or drawn order attached. In this appeal, it appears that the trial Court issued a drawn order instead of a decree. So, in essence, there is no decree for the respondents to annex to their memorandum of appeal. The drawn order so annexed reflects the parties’ details at the trial Court and it is not contested that it was drawn from the said case. The error was thus made by the trial Court. Mr. Tarimo contended that the rectification of the anomaly ought to have been sought administratively. I, on the other hand, find that this falls under arithmetical errors that could be fixed by the trial Court suo motu or by application made by any of the parties. This position is well settled under Section 96 of the Civil Procedure Code, which provides: “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be Page 5 of 8 corrected by the court either of its own motion or on the application of any of the parties.” The duty to seek rectification lies on the parties and ought to have been exercised to procure an actual decree instead of a drawn order. As the record appears to contain a drawn order and not a decree, I am of the view that there were no efforts made by either of the parties to rectify the error. No doubt, Order XXXIX Rule 1(1) of the Civil Procedure Code is coached in mandatory terms. The provision requires two documents in lodging an appeal, that is, a judgement and a decree extracted from the judgement. This Court can therefore not take any document apart from that. The requirement of the provision was well amplified in the case of Methusela Enoka vs. National Microfinace Bank Ltd (Civil Appeal No.266 of 2019) [2022] TZCA 447 (19 July 2022), where the Court of Appeal stated: “Looking critically at the provisions above, it seems clear to us that, a memorandum has to be accompanied with a copy of the impugned decree and judgment without which the appellant would have risked to have his appeal axed for being incompetent. It will be presumptuous to expect the appellant to attach documents other than the ones which are expressly stated by the law which is the impugned decree and judgment. If the drafters of the law had in mind any other documents which ought to be accompanied with the memorandum they would have expressly stated in clear terms.” Page 6 of 8 Again, in Grace C. Rubambey vs. CMC Automobiles Limited (Civil Appeal No.316 of 2020) [2023] TZCA 17378 (6 July 2023) TANZLII, the Court of Appeal stated: “From the provision, it is obvious that a copy of a decree and judgment are prerequisites in the lodgement of an appeal. Without this, no appeal can be lodged.” See also: Alex Senkoro & Others vs. Eliambuya Lyimo (Criminal Appeal 16 of 2017) [2021] TZCA 104 (13 April 2021) TANZLII. The error occasioned by the trial Court in preparing a drawn order instead of a decree is not something that should have come up in an appeal. The remedy is offered under Section 96 of the Civil Procedure Code which I referred to above. This is therefore not an issue requiring to be ascertained. It is plainly clear that a decree is prerequisite in preferring an appeal and a decree is not a drawn order. It is also apparent that at no time did the appellants seek for the Court to do away with the requirement for any reason so the discretion set in the exception set under Oder XXXIX Rule 1(1) could be exercised. This matter is thus incompetently before this Court. The consequence where a matter is incompetently before a Court is for the same to be struck out and not dismissed as alleged by Mr. Tarimo. In foregoing analysis, I hereby strike out this appeal for being incompetently preferred without a decree. Parties should employ necessary steps to move the trial court to rectify the error and issue them the relevant document. Page 7 of 8 Costs be paid to the 3rd respondent. Dated and delivered at Moshi on this 28th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 8 of 8