gerson obadia swai vs exaud joseph olomi others 2008 tzhc 322 6 march 2008

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CIVIL APPEAL NO. 11 OF 2005 [C/F DC HAI CIVIL CASE NO. 11/2003] GERSON OBADIA SWAI--------APPLICANT VERSUS EXAUD JOSEPH OLOMI & 5 OTHERS - RESPONDENT RULING HON. JUNDU, J. In this appeal, the Respondents have raised the following preliminary objections filed in this court on 28/8/2006:- 1. That the appeal is bad for want o f competent accompanying documents. 2. That the appeal is time barred. Based on the said preliminary objections, the Respondents in their notice of preliminary objections have prayed to this court to dismiss the appeal with costs. This court had ordered the parties to argue the said preliminary objections by way of written submissions. They have fully complied. Mr. Sandi, learned counsel, is advocating for the Respondents and Mr. Kamara learned counsel is advocating for the Appellant. The record shows that in the trial court, the Appellant had sued the Respondents for a declaration that he is the sole lawful owner of a piece o f land measuring 12 % acres and eviction o f the Respondents from the said piece o f land. However, the Respondents successfully raised a preliminary objection to the effect that the Appellant’s suit was time barred. The trial court upheld the said preliminary objection and on 24th November, 2004, it dismissed the Appellant’s suit with costs. The Appellant having been aggrieved with the ruling and order o f the trial court has appealed to this court. As I have shown, the Respondents have raised two preliminary objections against the Appellant’s appeal filed in this court. In the first preliminary objection, the Respondents contended that the appeal is bad for want o f competent accompanying documents. The Memorandum of Appeal filed by the Appellant is annexed with a certified copy o f the Ruling showing that the same was delivered on 24/11/2004 and a copy of the Decree showing that the same was given under the hand and the seal o f the court on 6th May, 2004. I hasten to state that in practice what is extracted from a Ruling is an order and not a decree. The latter is only extracted from a judgment. Mr. Sandi, learned counsel for the Respondents, in his submission contends that Order 40 rule 2 read together with Order 39 rule 1 of the Civil Procedure Code, 1966 (“CPC, 1966”) provide that, in order for a memorandum o f appeal to be competent it must be accompanied by a copy o f order appealed against. He contends that Order 39 rule 1 o f CPC, 1966 mandatory which provides that every appeal must be accompanied by a copy o f the decree appealed from and that Order 40 rule 2 of CPC, 1966 assimilates the provisions o f Order 39 rule 1 and read, mutatis mutandis it states that in the case o f an appeal from an order the memorandum of appeal must be accompanied by a copy o f the order appealed from. He further contends that the Appellant has failed to comply with the provision o f Order 40 rule 2 of the CPC, 1966 hence the appeal filed by the Appellant is not properly before this court therefore the same need to be dismissed by this court. He contends in his submission that the order o f the court accompanying the memorandum o f appeal in the present appeal is legally defective because the date • • th of the Ruling, that is 24 November, 2004 is not the same date as that of the order, that is 6th May, 2005. He argued that the order does not comply with Order XX rule 7 o f CPC, 1966. He therefore prayed to this court to dismiss the appeal with costs. He cited Order XX rule 7 o f the CPC, 1966 and the case of Yusuph Mntambo and Another Vs. Moez Alidina [1985] TLR 145 and the case of Anthony J. Tesha Vs. Anita Tesha, CA, Civil Appeal No. 10 o f 2003 (unreported). Before going further, I must at this stage point out that whereas Mr. Sandi, learned counsel for the Respondents use the word “Order”, Mr. Kamara, learned counsel for the Appellant as it can be seen in the following Paragraphs uses the word “Decree”. This is in relation to Order 39 rule 1 and Order 40 rule 2 of the CPC, 1966. Therefore, in this Ruling I will apply the said words interchangeably. On the other hand, Mr. Kamara, learned counsel for the Appellant, in his submission has vehemently opposed the said preliminary objection raised by the Respondents. He contends that the contention of the Respondents that the date appearing on the decree is different from the date on which the Ruling was pronounced is without merit. Quoting a paragraph in the Decree, he contends that th the decree bears the date o f the day judgment was pronounced, that is 24 day of November, 2004. He further contends that 6/5/2005 is the date the decree of the court was extracted and signed. It was collected by the Appellant on 10/5/2005 having paid for the same vide ERV. NO. 2240098. He further contends that it is perfectly in order to have decrees extracted and signed by magistrates/judges later, that is several days or months provided that the same bears date o f pronouncement. He also contends that even if the decree was a departure from Order XX rule7, which he denied it, the Appellant is not to blame for the error or omission as the decree was drawn up, typed and signed by the court itself hence it is wrong to penalize the Appellant for omissions caused by the court itself. He argued that courts have been very sympathic on such position. He referred this court to the case of Kilimanjaro Timber Utilization Company Limited Vs. Francis Mbuya, High Court o f Tanzania at Arusha, Civil Appeal No. 7 o f 1980 (unreported) in which he contended that an objection that the appeal was not properly before the court because it was accompanied by an uncertified copy o f the decree was overruled. In a brief rejoinder submission, Mr. Sandi, learned counsel for the Appellant reiterated what he had earlier submitted, that the appeal is incompetent in as much as the order o f the court accompanying it is bad for being dated 6th May, 2005 instead o f the 24th day of November, 2004, the date o f Judgment as mandatorily required by the law. I have carefully considered the submissions o f the parties as regards the first preliminary objection raised by the Respondents, that is the appeal is bad for want of competent accompanying documents. First, I have asked myself whether the Memorandum o f Appeal filed by the Appellant on 26/5/2005 was to be accompanied by an order or a decree? This is relevant because Mr. Sandi, learned counsel for the Respondent in his submission refers to the accompanying document as an “order” and Mr. Kamara, learned counsel for the Appellant refer it as a “decree”. Indeed, the Memorandum that was filed by the Appellant on 26/5/2005 has annexed a Decree. Was this proper taking into account the lower court delivered a Ruling and not a Judgment? This is again confirmed in that the Appellant in the Memorandum o f Appeal annexed a certified copy of the Ruling that was delivered by the lower court on 24/11/2004. What I know is that when a court delivers a Judgment, what is to be extracted is a Decree and when it delivers a Ruling, what is to be extracted is an order or so called a drawn order. Since the lower court had delivered a Ruling, what was to be extracted was an order and not a decree. I so hold. Secondly, Mr. Sandi, learned counsel for the Respondents, in his submission argued that Order 39 rule 1 o f the CPC, 1966 provides that every memorandum of appeal must be accompanied by copy of the decree appealed from, I quite agree. He argued further that Order 40 rule 2 o f the CPC, 1966 assimilates the provisions of Order 39 rule 1 o f the CPC, 1966 and when read mutatis mutandis it means that in the case o f an appeal from an order the memorandum o f appeal must be accompanied by a copy o f the order appealed from. I also quite agree with him. Now, the crux o f his argument is that the order of the court accompanying the memorandum o f appeal in the instant appeal is legally defective because the date of the ruling is not the same as that o f the order which in his view is a non- compliance with the law as provided under order XX rule 7 of the Civil Procedure Code, 1966| Elaborating this defect, he argued that the date o f the Ruling of the trial court is 24th day o f November, 2004 while the date o f the order is 6th day of May, 2005. On the other hand, Mr. Kamara, learned counsel for the Appellant argued that the argument o f Mr. Sandi, learned counsel for the Appellant is without merit because the decree bears the date o f the day judgment was pronounced, that is 24th day of November, 2004. Looking at the copy o f the said Decree, I am not so convinced. That the date o f Ruling is 24th November, 2004 is vividly clear from the certified copy annexed to the Memorandum o f Appeal. Was the order or decree annexed thereto o f the same date as the Ruling? My answer is no having carefully read the alleged order or decree. Mr. Kamara, learned counsel for the Appellant tried to persuade this court to rely on the following words appearing in the Order or Decree “ And whereas this application coming up for ruling before Hon. R.R. KASELE RM, this 24th day o f November, 2004” and conclude that the Decree bears the date o f the day judgment o f the lower court was pronounced. I am not so persuaded. In my considered view in line with the argument made by Mr. Sandi, learned counsel for the Respondents, in terms of Order XX rule 7 o f the CPC, 1966, the relevant words in the Decree or Order are “Given under my hand and the seal of this court this 6th day o f May, 2005”. th These words clearly show that the Decree or Order was given on 6 May, 2005 and not on 24th November, 2004 as Mr. Kamara, learned counsel for the Appellant wishes this court to believe. Mr. Kamara, tried to persuade this court that the 6th May, 2005 is the date the decree of the lower court was extracted and signed. However, I am far from being convinced that this can deviate the clear wording of Order XX rule 7 o f the CPC, 1966 as vividly demonstrated by Mr. Sandi, learned counsel in his submission. It provides as follows - “7. The decree shall bear the date of the day on which judgment was pronounced-----“ In Anthony J. Tesha Vs Anita Tesha (supra), the Court o f Appeal o f Tanzania was emphatic on the above position. It held - “But a decree is required to bear the same date as that of the judgment according to 0.XX r. 7. The decree shall bear the date the day on which the judgment was pronounced. -----As we have already said above we take an order .........generic to be so too.” Mr. Kamara, again, tried to persuade this court in his submission to find that the departure of the decree from the legal requirements o f Order XX rule 7 of the CPC, 1966 cannot be blamed on the Appellant as it was drawn up, typed and signed by the court itself hence the court should not punish him. As such Mr. Kamara would like this court to be sympathetic with the Appellant as was the case in the case of Kilimanjaro Timber Utilization Company Limited Vs. Francis Mbuya, High Court of Tanzania at Arusha, Civil Appeal No. 7 o f 1980 (unreported), however, such option does not arise because the requirements stated in Order XX rule 7 of the CPC, 1966 are mandatory. The word used in the said provision o f law is “shall”. In the end, it is clear as demonstrated by Mr. Sandi, learned counsel for the th Respondents that the date o f the Ruling is the 24 day o f November, 2004 and the date of the order as referred to by Mr. Sandi or Decree as referred to by Mr. Kamara is the 6th May, 2005. This difference in dates o f the said documents renders the order or decree to be defective. It is a clear non-compliance with Order XX rule 7 o f the CPC, 1966. In my considered view, a defective order or decree annexed to a memorandum o f appeal renders the appeal in terms of Order 39 rule 1 of the Civil Procedure Code, 1966 incompetent. Therefore, based on all the aforesaid, I hold that the appeal filed by the Appellant in this court is incompetent for non - compliance with mandatory requirements o f the law. I uphold the first preliminary objection raised by the Respondents, which in considered view suffices to dispose this entire appeal before this court. I need not labour on the second preliminary objection. The appeal is hereby dismissed with costs. It is so ordered. F.A.R. JUNDU JUDGE 6/3/2008 Right o f Appeal Explained F.A.R. JUNDU JUDGE 6/3/2008 6.3.2008 Coram: F.A.R. Jundu, J. For the Appellant: Miss Neema Mtayangulwa, Advocate For the Respondent: Mr. Sandi, Advocate. C/C: Ramla C ourt: Ruling delivered in the presence o f Miss Neema Mtayangulwa, learned 1 for the Respondents. 6/3/2008 AT M OSHI