20100929 TZCA Mtwara 1

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IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA (CORAM: MBAROUK, l.A., BWANA, J.A. AND MASSATI, J.A.) . CIVIL APPEAL NO. 128 OF 2004 JOSEPH DAUD PAUL .............................................. ~ ....... APPELLANT

VERSUS REGISTRAR OF TITLES ................................................. RESPONDENT (Appeal from the Ruling of the High Court of Tanzania · at Mtwara District Registry) (Mandia, J.) Dated the 25 th day of February, 2002 fl in Misc. Civil Application No. 3 of 2000

RULING OF THE COURT 27 & 30 SEPTEMBER, 2010 MBAROUK, J~A.: When the appeal was called on for hearing, Ms Monica Otaru, the learned Senior State Attorney representing the respondent Registrar of Titles submitted· on the preliminary objection, notice of which was given earlier under Rule 107(1) of the Court of Appeal Rules, 2009. The notice sought for the following orders of the Court: 1 (a) This Hon. Court be pleased to dismiss the Appeal lodged by the Appellant on the ground that no written submissions as prescribed under Rule 106(1) of the Court of Appeal Rules 2009, have been filed. (b) Costs of and incidental to this application be provided for (c) · Any other relief this Hon. Court may deem fit to grant. At the hearing of the preliminary objection, Ms Otaru prayed to adopt to what she has stated in her written submission filed earlier in terms of Rule 34(2)(a) of the Court of Appeal Rules, 2009. Briefly, Ms Otaru submitted to the effect that, it is a mandatory requirement under Rule 106(1) of the 2009 Rules that head notes/written submissions are to be filed within 60 days after filing the Appeal. She said, no extension of time has been applied for and granted in this matter to date. In support of her argument, she cited to us the decision made by Kalegeya, J.A. in Masunga Mbegete & 2 others vs. The Hon. Attorney General & Another, Civil Application No 68 of 2010

(unreported) where that application was dismissed under Rule 106(9) of the Court of Appeal Rules, 2009 after the ·Applicant 2 failed to file the requisite head notes/written submission within the time prescribed by the law. She then prayed for the appeal to be dismissed with costs. On his part, Dr. Sengondo Mvungi, learned advocate for the appellant, submitted that the memorandum of appeal was filed long before the new Rules (Court of Appeal Rules, 2009) were made, hence the requirements under Rule 34(2) do not apply in this matter. He distinguished the decision in the case of Masunga Mbegete · (supra) with this case. Dr. Mvungi further submitted that, the circumstances in this case reveal that if the new Rules are to be applied, a burden will be imposed to the parties and the Court by entertaining application for extension of time in compliance with Rule 106(1) of the 2009 Rules. He then said that it is impraticable to apply the new Rules according to Rule 130(a) of the 2009 Rules in this case. He urged us to apply the old Rules (Court of Appeal Rules, 1979) as directed by Rule 130(a) of the 2009 Rules. 3 Rule 130(a) of the Court of Appeal Rules, 2009 reads as follows: 11 /n all proceedings pending whether in the Court or High Court, preparatory or incidental to, or consequential upon any proceeding in court at the time of the coming into force of these rules, the provisions

of these rules shall thereafter apply, but without prejudice to the validity of anything previously done; Provided that: (a) If and so far as it is· impracticable in any such proceedings to apply the provisions of these rules, the practice and procedure heretofore obtaining shall be followed. /✓ [Emphasis added]. The record clearly shows that the memorandum of appeal in this appeal was filed on 7th September, 2004. Whereas the new 4 Court of Appeal Rules, 2009 came into effect as from 1st February, 2010. The respondent's preliminary objection found its support in the decision of Kalegeya, J.A. in the case of Masunga -Mbegete (supra) whose notice of motion was filed on 20th June, 2010. The difference found in the dates of filing the memorandum of appeal in this appeal and the notice of motion in the case of Masunga Mbegete (supra) with the date of coming into operation of the new Court of Appeal Rules, 2009 speaks by itself that the decision in Masunga Mbegete (supra) is distinguishable. This is because, this appeal was filed before the new 2009 Rules came into operation. Whereas the notice of motion in Masunga Mbegete (supra) was filed after the 2009 Rules came into operation. Having distinguished Masunga Mbegete's decision with this appeal, and bearing in mind that the said decision was the basis. of the preliminary objection, we are of the considered opinion that

the preliminary objection remains with no legs to stand on. Furthermore, we are increasingly of the view that it is impraticable for the provisions of Rule 34(2) of the 2009 Rules to apply in this appeal. 5 In the event, and for the reasons stated above the preliminary objection raised by the learned Senior State Attorney representing the respondent is hereby dismissed. Notwithstanding to what has been submitted by the parties in the preliminary objection, the Court suo motu raised a point in order to satisfy itself on the correctness of the drawn order found at page 15 of the record which appeared to have been signed by the District Registrar instead of the Judge or his successor as required by the ' law. (Order XX Rule 7 and Order XXXIX Rule 35(4) of the Civil Procedure Code, Cap. 33 R.E. 2002). Dr. Mvungi, outrightly conceded to the defect, and submitted that the defect renders the appeal incompetent. He thus prayed for the appeal to be struck out with no order as to costs. On her part, Ms. Otaru agreed that the drawn order found in the record of appeal is defective for being signed by the District Registrar instead bf the Judge or his successor. 6 The appeal be_fore the Court is from the Ruling of the High Court of Tanzania at Mtwara made by Mandia, J. (as he then was) dated 25-2-2002 in Misc. Civil Application No 3 of 2000. · However, the extracted drawn order found in the

record has been signed by the District Registrar instead of a judge or his successor. In Robert John Mugo (Administrator of the Estate of the late John Mugo Maina) versus Adam Mollel, Civil Appeal No. 2 of 1990 (unreported), this Court stated that; •~.. a decree in appeal which is not signed by Judge as required by Order 39 Rule 35(4) invalidates the purported decree. This is because such signature by a judge is mandatorily required and it authenticates the decree." [Emphasis added]. 7 Whereas Order 39 Rule 35(4) of the Civil Procedure Code. Cap. 33 R.E. 2002 which deals with decrees in appeal as it appears in this case states that: "The decree shall be signed and dated by the judge or Judges who passed it." As emphasized in the case of Ndwaty Philemon Ole Saibul v. Solomon the Saibul, Civil Appeal No. 68 of 1998 (unreported), where it was stated that: "The requirement that a decree mµst be signed · by the Judge who made the decision is rooted in sound reason, namely, that the Judge who decided the case or appeal is in the best position to ensure that the decree has been drawn in accordance with the Judgment." 8 -, ' In the instant case, we are of the considered opinion that the Deputy Registrar had no legal powers and hence not competent to sign the drawn order in terms of Order 39 Rule 35( 4)of the Civil Procedure Code. The position of the law as it stands is to the effect that, a defective order or decree renders an appeal incompetent. For being incompetent, we are therefore constrained to strike out the appeal with no order as to costs. DATED at M1WARA this 29th day of September, 2010. M.S. MBAROUK

JUSTICE OF APPEAL SJ. BWANA

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL he original.

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