Ruling DC Civil Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI DC CIVIL APPEAL NO. 22525 OF 2024 (C/F Misc. Civil Application No. 85 of 2023. Originating from Civil Case No. 02 of 2023 both in in the District Court of Moshi at Moshi) HANCE CHARLES MACHA.....................................................APPELLANT VERSUS ALLIANCE INSURANCE CORPORATION LIMITED...………..RESPONDENT RULING 4th March & 08th April, 2025 MONGELLA, J. In this appeal, the appellant challenges the decision of the District Court of Moshi at Moshi rendered in Misc. Civil Application No. 9829 of 2024. When served with the petition, the respondent filed a notice of preliminary objection with one point, being: “The Apellant’s appeal is untenable as it is not accompanied by a copy of the Drawn Order from which the appeal is made, contrary to Order XXXIX Rule 1(1) in conjunction with Order XL Rule 1(c) and Order XL Rule 2 of the Civil Procedure Code [Cap 33 R.E 2019]” Page 1 of 10 The objection was resolved orally whereby both parties were represented by learned advocates. Mr. Goerge Mnzava, appeared for the respondent while Mr. Patrick Paul and Innocent Msaki represented the appellant. Submitting in chief, Mr. Mnzava averred that Order XXXIX Rule 1(1) of the Civil Procedure Code mandates every appeal filed to the High Court to be by way of Memorandum of Appeal accompanied by a certified copy of decree of the impugned decision. He added that the mentioned provision is in conjunction with Order XL Rule 1(c) and Rule 2 of the Civil Procedure Code as it incorporates the procedure mentioned in appeals against orders. The learned Counsel asserted that since this appeal originates from Misc. Civil Application No. 85 of 2023, by operation of law, it falls under the ambit of Order XL Rule 1(c) and Rule 2 of the Civil Procedure Code. He contended that the provision requires adherence to procedural dictates of Order XXXIX Rule 1(1) of the same statute. In that respect, he challenged the appellant for not complying with the settled requirement as the memorandum of appeal was accompanied with a ruling without requisite drawn order. Presenting on the legal effect of the omission to annex the drawn order, and in an attempt to assure this Court that this is not an uncharted territory, Mr. Mnzava referred to case of Paul Charles Mhere vs. Felistos James Mwingwa (Probate Appeal 36 of 2020) [2021] TZHC 3063 (27 April 2021) TANZLII whereby this Court, facing a Page 2 of 10 similar issue, referred to H. J. Stanley & Sons Limited vs. Ally Ramadhani Kunyamale [1988] TLR 250, in which it was held that the absence of the document connotes that there was no appeal presented before the Court. In that case, he said, the appeal was found incompetent. In the matter at hand, Mr. Mnzava reasoned that since in the circumstances this appeal is incompetent, then the available remedy is for it to be struck out with costs. In the appellant’s reply submissions, Mr. Paul did not object the absence of the drawn order from the trial Court. He however alleged that the appellant was only served a copy of the Ruling with no drawn order. In the circumstances, he held the view that the omission to attach the drawn order was not fatal. He believed it could be cured by simply attaching the same. However, the drawn order was absent in this matter and thus it is impossible for the appellant to comply with the dictates of Order XXXIX and XL of the Civil Procedure Code. Mr. Paul offered a solution to rectify this matter saying that this Court invokes its revisionary powers under Section 44 of the Magistrates’ Courts Act [Cap 11 R.E 2019] and Section 96 of the Civil Procedure Code so as to have and see to it that the record of the trial Court is corrected to contain a drawn order. He alleged that upon the error being fixed, the parties would be able to access the records. Page 3 of 10 The learned Counsel further explained that this appeal arises from an application for restoration of Civil Case No. 02 of 2023 which was dismissed for want of prosecution. He contended that the mentioned dismissal was made on 11.04.2024, which was a public holiday which is impossible. He stated the Correct version to be 12.04.2024. Mr. Paul insisted that the circumstances of this case rendered it impossible for the appellant to annex the drawn order. In different circumstances where the order existed, the remedy would have been for the appellant to be given leave to file proper record of appeal including the drawn order. He alleged that since the drawn order was absent, the remedy is for this Court to exercise its revisionary powers as he argued. Mr. Msaki referred to Section 3A and B of the Civil Procedure Code arguing that the provisions express that courts should not be bound by technicalities when dispensing justice. In his stance, the matter at hand is based on technicality as there is no drawn order. He as well challenged the respondent for not having a copy thereof too. He called for the preliminary objection to be dismissed with costs and for the appeal to be determined on merits. He further alleged that under Section 96 of the Civil Procedure Code, this Court is with powers to determine a matter beyond the capacity of parties including this issue of absence of drawn order. He suggested that in order to save time and dispense justice, the Court can make an order to determine the appeal on merit since Page 4 of 10 similar fate would be in play if the respondent had preferred an appeal. He cemented his averments with the case of Yusufu Nyabunya Nyatururya vs. Mega Speed Liners Ltd & Another (Civil Appeal 85 of 2019) [2020] TZCA 1892 (14 December 2020). Rejoining, Mr. Mnzava first wanted this Court to note that Mr. Patrick had admitted not annexing the drawn order to the memorandum of appeal while the procedure requires the same to be done. Addressing the argument by Mr. Paul that the absence of the drawn order was curable, he insisted that it was incurable and renders the matter unmaintainable. As to the averment that the attachment could be made afterwards, he alleged it would be an afterthought. Mr. Mnzava contended that the unavailability of the drawn order did not mean that it was not mandatory. As to the suggestion that this Court invokes its revisionary powers under Section 44 of the Magistrates’ Courts Act and 96 of the Civil Procedure Code; the learned Counsel averred that Section 96 is irrelevant to this matter as it deals with amendments of judgements, decrees and orders. Further, he said that the revisional powers under Section 44 of the Magistrates’ Courts Act cannot not be exercised at this juncture. In his stance, it was the duty of Mr. Paul to follow up on the drawn order and procuring the same before filing the appeal at hand. As to the argument that Misc. Civil Application No. 85 of 2023 was Page 5 of 10 dismissed on a public holiday, he alleged that the issue was not related to the preliminary objection at hand. Rejoining on Mr. Msaki’s submissions, he averred that the situation could not be rectified by the oxygen principle as the defect goes to the root of the matter. He made reference to Hakimu Mfaume vs. Mande Shabani (Civil Appeal 324 of 2021) [2022] TZCA 521 (16 June 2022) TANZLII, averring that the Court cannot belittle procedural rules with the oxygen principle. He finalized his submissions by praying that this Court finds the objection with merit and the appeal be struck out with costs for being incompetent. I have dispassionately considered the submissions of both parties. There is no doubt that the objection herein is on a point of law, thus qualified according to Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd. [1969] EA 696. The objection pertains the procedure laid out under Order XXXIX Rule 1(1) of the Civil Procedure Code, in filing appeals to this Court. I hereunder reproduce the provision for ease of reference: “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.” Page 6 of 10 The provision is read in conjunction to Order XL Rule 1(c) and 2 of the Civil Procedure Code which reads: “1. An appeal shall lie from the following orders under the provisions of section 74, namely— (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; 2. The rules of Order XXXIX shall apply, so far as may be, to appeals from orders.” In essence, Mr. Paul, does not contest that the provisions require a drawn order to be annexed. He also did not deny that the drawn order was not annexed to the memorandum of appeal. What he contests is the requirement being mandatory. He also claims there being no drawn order issued by the trial Court and in the premises, he called for this Court to invoke its revisional powers to order the drawn order to be annexed. Evidently Order XXXIX Rule 1(1) of the Civil Procedure Code requires every appeal to be accompanied by a copy of decree from which the appeal is sought. Order XL Rule 1 provides orders under which an appeal is preferred which include orders in an application to set aside dismissal of the suit, such as in Misc. Application No. 9829 of 2024 the subject in this appeal. Rule 2 of the latter provision provides that rules under Order XXXIX shall apply rendering Order XXXIX Rule 1(1) applicable as far as appeals against orders mentioned are concerned. Page 7 of 10 Order XXXIX Rule 1(1) has been interpreted as setting a mandatory requirement to annex a copy of decree or otherwise the appeal will be incompetent. Interpreting the provision, in Methusela Enoka vs. National Microfinace Bank Ltd (Civil Appeal No.266 of 2019) [2022] TZCA 447 (19 July 2022), 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.” 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. As proven, Order XXXIX Rule 1(1) is taken to impose the mandatory requirement to accompany the memorandum of appeal with a Page 8 of 10 copy of decree. According to Order XL Rule 1(c) and 2 the provision of Order XXXIX is to be applied mutatis mutandis in appeals against orders. This means then, that a drawn order must be annexed to the memorandum of appeal. This being a mandatory requirement, the oxygen principle cannot be imposed to ignore mandatory procedures of the law. See Mondorosi Village Council & Others vs. Tanzania Breweries Ltd & Others (Civil Appeal 66 of 2017) [2018] TZCA 303 (13 December 2018) TANZLII and Hakimu Mfaume vs. Mande Shabani (supra). Mr. Paul also invited this Court to invoke its revisional powers under Section 44 of the Magistrates’ Courts Act and Section 96 of the Civil Procedure Code. I am aware that this Court has the power to supervise the District Court whereby it can call and examine the record and make orders to be observed by the said Court. Nevertheless, I do not think, even if I were to exercise such powers and order a drawn order be issued to that effect, it would make this appeal anyway competent. Further, it is my view that that Mr. Paul overlooked the fact that Section 96 of the Civil Procedure Code provides room for the trial Court to fix arithmetical or clerical mistakes or errors arising from a slip or omission in judgements, decrees or orders. Such act is done by the trial Court in its own motion or upon an application by either party. Clearly, this provision cannot move this Court to interfere with such concerns, thus is irrelevant as correctly argued by Mr. Mnzava. Page 9 of 10 Nevertheless, as much as I agree that this matter is incompetent for failure to attach the drawn order on the memorandum of appeal, I still find this matter being peculiar with respect to its circumstances. It is not disputed by both parties that the trial Court never issued a drawn order to either of the parties. The respondent never disputed the appellant’s assertion that he as well does not have the copy thereof and that the said copy did not exists as we stood during trial as it was never prepared or issued by the trial court. For interest of justice, to ascertain the parties’ assertions, I took the pain to go through the electronic trial Court file vide the eCMS and also found no drawn order uploaded by the trial Court. As such, the appellant cannot be severely punished. However, considering that the appeal cannot stand and push to hearing before this Court in presence of the anomaly, acting under Section 95 of the Civil Procedure Code, I strike out the appeal, with leave to re-file the same within 90 days. It is my expectation that within this time, the parties shall have taken all necessary steps to obtain the drawn order from the trial Court. Considering the situation further, I make no orders as to costs. Dated and delivered at Moshi on this 08th day of April 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 10 of 10