20080502 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM KAJI,J.A., KILEO,J.A., And KIMARO,J.A.) CIVIL APPEAL NO. 45 OF 2006 JOHN NAIMAN MUSHI. ...............................................APPELLANT VERSUS KOMBO RURAL COOPERATIVE SOCIETY LIMITED .................... !........................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Jundu, J.) dated 13th October, 2006 in Civil Appeal No. 11 of 2003 RULING OF THE COURT 30th April, & 2 nd May, 2008 KIMARO, J, A. When the appeal was called on for hearing, Mr. Godwin Sandi, learned counsel for the respondent raised four points of preliminary objection, notice having been filed earlier on, under rule 100 of the Court of Appeal Rules, 1979. The first point of objection challenges the notice of appeal at pages 4 and 5 of the record of appeal. The 1 learned counsel said it does not comply with rule 77(1) of the Court Rules. He contended that it neither shows the date when it was prepared, nor lodged in Court. Although the notice shows that it was intended to be served on him and his address is indicated, he denied i to have either received the notice or signed it beside his address. In the circumstances, the learned counsel argued, it is difficult to say whether the notice was filed within the fourteen days allowed by the rule 76(2) of the Court Rules as well as ascertaining whether service was effected to the respondent within the prescribed period. In response, Mr. Barnaba Luguwa, learned counsel for the appellant conceded that he did not indicate in th~ notice of appeal ' the date when he drew it and lodged it in Court.. He relied on a rubber stamp of the Court at page 4 of the record indicating that the appeal was lodged in Court on 14th February, 2006 and argued that it should be taken to be the date of lodging the notice in Court. Since it is also indicated in the body of the notice that the appellant 2 was not satisfied with the judgment that was issued on 13th February, 2006 the learned counsel contended, that should be taken to be the date when the notice of appeal was drawn. Regarding service of the notice of appeal to the learned counsel for the respondent, Mr. Luguwa said he was served on the 14th February, 2006 but he refused to accept service. Subsequently, the notice of appeal was served on the respondent's office. These shortfalls notwithstanding, the learned counsel was of the opinion that they do not render the appeal incompetent. The defects on the notice of appeal are conspicuous. There is no doubt that the date for issuance and lodging of the notice of appeal in Court is not indicated. This omission makes it impossible for one to ascertain the date when it was lodged in Court as well as the date it was served on the other side. Under the circumstances we cannot say whether there was compliance with rule 77(1) of the rules which requires service of the notice of appeal to the respondent to be effected seven days after lodging it in Co4rt. The learned Counsel for the respondent stated in clear terms that he was not 3 served and he did not even sign the notice, much as a signature appears on the notice of appeal, beside his address, tending to suggest that he acknowledged receipt of the same. He submitted correctly, in our view, that it was the responsibility of the counsel for the appellant to make sure that the counsel for the respondent was served and to provide concrete evidence to that effect. It was not sufficient for him to state matters of fact from the bar without supportive evidence on record. Short of this vital evidence on the notice of appeal on the date of the issuance as well as lodging it in Court, the stamp of the Court which seems to propose that the notice of appeal was lodged in Court on 14th February, 2006 cannot be reliable evidence, as the date could be backdated to serve the purpose of the person who stamped it. Our finding is that this objection has merit. The second objection was in. respect of the order granting the appellant leave to appeal. The learned counsel for the respondent submitted that in terms of rule 89(2)(a) of the Court Rules, the extracted order which granted leave to appeal had to form part of 4 the record of appeal. The learned counsel for the appellant conceded this requirement of the law as well. However, he was of the opinion that since the ruling of the High Court that granted leave forms part of the record, the omission is not fatal and cannot re·nder the appeal incompetent. Mr. Sandi informed us in his reply that the appellant was required to comply with the requirement of the law. We respectfully agree with him but in this respect if all other procedures had been complied with, we would have considered the omission a minor irregularity which could be ignored without occasioning any injustice, and dismiss the objection. In the third objection Mr. Sandi challenged the order of arrangement of the record of appeal particularly the index. He contended that it contravened Rule 89( 4) of the Court Rules. On his part the learned counsel for the appellant was at a dilemma as he failed to agree or dispute the objection. He opted to leave the matter to the decision of the Court. Rule 89( 4) of the Court Rules requires the documents to be bound and arranged· in the order they are specified in sub rule 2 of rule 89. This means ,that the record of 5 appeal has to start with the order giving leave to appeal, followed by a memorandum of appeal, record of pioceedings, judgment or order, decree or order, notice of appeal and l certificate on a point of law in case of a third appeal. It is true t~at the index of the record of appeal as well as the record itself dols not follow the order given in sub rule 4 of Rule 89 but our co~sidered view is that this non compliance is not fatal and we woulb not be prepared to strike out the appeal on this objection. The last point of objection was on the decree of the trial court . I which formed part of the record of appeal. The learned counsel for l the respondent contended, and r.Luguwa conceded, that the decree is defective for being wrongly dated, contrary to Order XX rule 7 of the Civil Procedure Code, [CAP 33 R.E 2002]. Mr. Sandi asked the Court to strike out the appeal. On the other hand, the I . learned counsel for the appellant requested the Court to use powers of revision to nullify the proceedingl in the High Court, as they were 1 . incompetent because of the defective decree which went unnoticed I by the learned judge of the Hig'h Court as well as the learned 6 o. advocates who represented the parties in the appeal. Indeed the decree of the trial Court at page 96 of the record_ of appeal is defective. It does not show the date when the case came for judgment. The judgment of the trial court at page 90 to 95 of the record of appeal is dated 16th April, 2002 and the dec~ee at page 96 shows that it was given on 2ih January, 2003. Under order XX rule 7 of the Civil Procedure Code CAP 33 a decree must bear the date when the judgment was pronounced. The provision reads: "The decree shall bear the date of the d~y on which the judgment was pronounced, and when the Judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree. " 7 I A defective decree normally renders the record of appeal ; defective. See the cases of Tanganyi~a Cheap Store Vs National Insurance Corporation Limited CA! Civil Appeal No 37 of 2001 I (Unreported); Murtaza Mohamed Raza Visani Vs Mehboob Hassanali Versi CAT Civil Appeal No.'.31 of 2004 (Unreported) and Laurian J. R. Rwebembera Vs Nendiwe Investment Limited CAT Civil Appeal No. 29 of 2003 (Unreported). Consequently, we uphold the objections on the notice of appeal as ' J 1 well as the one on defective decree and strike out the appeal with ! costs. It would not serve any useful,· purpose for us to end only in I striking out the appeal. The High' Court acted on the defective I decree of the trial court to determine the appeal which was before it. Sub rule 1 of rule I of the Order XXXIX of the Civil Procedure Code, which deals with original appeals to the High Court, makes it mandatory for the memorandum of appeal to be accompanied by a decree. Such a decree must be valid. A valid decree must issue in 8 ' I I compliance with Order XX rule 7. Since there was no valid decree I the proceedings in the High Court were a nullity. For this reason we find it necessary to invoke the revisional I I powers of the Court under section 4(2) of the Appellate Jurisdiction - I Act, [CAP 141 R.E.2002] to quash and set aside the proceedings in Civil Appeal No. 11 of 2003 in the HiJh Court of Tanzania at Moshi, as they are a nullity. It is accordingly brdered. I d I . DATED at ARUSHA this 2n day of May, 2008 S. N. KAJI I JUSTICE OF APPEAL I E. A. KIUEO JUSTICE OF ~PPEAL I N. P. KIMARO JUSTICE OF ,APPEAL I I certify that this is a true copy of the original. 61tL (F. L. K. WAMBALI) I SENIOR DEPUTY REGISTRAR 9