20080325 TZCA Dar es Salaam

,, '.i I r · 'I 11 I! ,1 I IN THE COURT OF APPEAL OF TANZANIA 1 AT DAR ES SALAAM l\ '\ . I· ' '.i :: (CORAM: NSEKELA, J.A., MSOFFE, J.A., And MBAROUK, J.A.) 1 11 1 i IC CIVIL APPEAL NO. 9 OF 2od:1 . I 1.1 I! : ' :1 JUSTUS S. MUTUNGI .................................•....•.......... APPELLANT 1 VERSUS I\ · ·1 I : 'I. UNIVERSITY OF DAR ES SALAAM ............... ~ ............ RESPONDENT II I' I {Appeal from the Ruling and Orde~ of the High •I I' Court of Tanzania at Dar es Salaam) II I. I ,: 11 {Kalegeya, J.) I :, th da~ed the 15 day of February, 2000 in !\ i'. Misc. Civil Case No. 17 of ll994 , ------------- 11 Ii RULING OF THE COURT [I I It :I 12 February & 3 April 2008 [: :i I , 1 I: l MBAROUK, J.A.: '.I i '· . i 11 When the appeal was called on for hear,ing, Ms Bigeye, learned . . i 1! counsel for the respondent University of Dar es Salaam, raised a '. · I\ jl preliminary objection, notice of which had beeh ~iven earlier in terms I\ I . :1 :1 of Rule 100 of the Court of Appeal Rules, 197QI' The same was raised on the following points:- I\ i\ i :1 I Ii iI ,:I I, \ ·/:- ,,_·_· .. ,.·, ;,·. _.- .. · . : . . . •,' .. , ! :i i 2 . ~ 1. That the Notice of Appeal filedl! on 21st February, 2000 is not signkd: by the I! I Ii , I I Registrar as required under R~lle r6 (6) of the Court of Appeal Rules, 19719, :I ! i I 'i i 1 ' i I: 2. That the jdate on the Drawnlorder does i i i not tally !iwith the date the o~~er was given. : i :I ii I At the hearing, Ms Bigeye briefly submi~e6 that, the notice of ! I appeal found in the record was signed on beh~lf /of the Registrar and 1 . 11 1[ not by the Registrar himself. She said that is ,fo?trary to Rule 76 (6) of the Court of Appeal Rules, 1979. She furtijerlicontended that that renders the notice of appeal to be defectiie,I hence, there is no I, 11 appeaL Secondly, Ms Bigbye drew the atten!io1 of this Court to the second point in her prelin1lnary objection tha~ tli~ date in the Drawn 1 ' ' ' '· . 11 'i Order does not tally with the date the order was:I:j given. She referred , I :' ': I us to Order XX Rule 7 of the Civil Procedure :to1e, Cap. 33, Revised 1 !1 l Edition, 2002, because the order is from the driginal Decree. She • · 11 1, ·. . I' 1: th stated that the order was delivered on 15 February, 2000 but it was I ,qI 'I . nd signed on 2 March, 2000. She said, that is(a defect which renders 11 i1 !I I 'I • i :1 I I 1: 1: II ,.; i ii i: :I,, 11 ·~ I I I· ;1 1 3 I Ii :f I the Drawn· Order to be c;lefective. The applfa~ion was therefore ;j incompetent and should be struck out. \ I; . :I i1 Ii :. ,j i i On the other hand, Mr. Komeye, learrl ed,! advocate for the I1 I: Appellant, in his reply, sµbmitted that the ~ot1!ce of appeal was • ! properly filed u~der_ Rule j6 (6) of the Court 9j !I :1 1ppeal Rules, 19~9. Mr. Komeye maintained th~t Rule 76 (6) does ot:j state that a notice 1 of appeal has to be sign~d by the Registrar l~ifself. Instead, he ., Ii i! submitted that, it can be' signed by an autnori,zed officer on his I 1 1 behalf. 'I Ii 1! Ii :I In. his r~ply to the second preliminary ~bjtction, Mr. Komeye conceded that the date when the order was d~livJred . '. ! and that which iJ . . I I I Ir appears in the drawn orderl' differ... ,)However, H~ ~aid the fault is that : ·J 1/ Ii of the Court and not his cllient. ;, For that reasorl he prayed for the 11 1 i/ 1 preliminary objection to be dismissed. !' I/ . . I lj I I. We start with the first preliminary point 10f ;jobjection. Rule 76 . I· 11 (6) provides as follows:- 11 11 :I ;I i I' I ,i 'I . i 11 I :I,r I' 1I I i 4 11 I' !I I ,j " "A notice of appeal shall be subs~antially in I: i the Form D in the First Schedule t0 these I ,, 1iI I',) Rules and shaH be signed by or bn:\ behalf I ,I of the appellant." I) '11 l ,iIi :: I' , Rule 76 (6) provides that the notice of ajppeal shall be signed ' i! st by or on behalf of the appellant. In the ~a~:e of 21 Century ;I' :1 I I . :; 1! I;' I' Food and Packaging · Ltd. v. Tanzani~ Sugar Producers 1 : I ,i I 1 : I: Association & Two Qthers, Civil Appepl :i No. 91 of 2003 i·1 '' i! Ii (unreported) this Court stated that:- ;1 i 1,:' 'I , ,1 'I . i' : .. "We, therefore, are of the constdefed optrnon 1 i i that we ought to depart, and we s0 tfo, from1 I :1 all the previous decisions treating 1nptices of 1 appeal or memoranda of appea1 at invalid 1• 11 be1:ause they . were : not sign~6 !/ by the Registrar or the RegiStrar of the 1\Hi@h Court I I under . Rule 76 and I 86." ,:! ' ,, i !i,, 11 ! I ;\ >I 11 . In the event, and for the reasons stated herein above, the first ' I 'I I preliminary point of objection is overruled. . \: ' I; · ! .I 1' I 5 ! ' i. ,, 11 ·1· ' ' ' ' ' i The second point of preliminary objection \is to the effect that ., \ i i the date in the Drawn Order does not tally with tHe date the order 1 ' \,\ 1 :1 was given. .Ms Bigeye referred us to Order ~ 1 Rµle 7 of the Civil Procedure Act, Cap. 33 of the Laws of TanzaniJ, Jevised Edition of ' i, I !I 1 2002 which states that:- ! j "The. decree shall bear the date 0 ' ' I : 1 ! Lich I( ,j the ~udgment w~s pronounc~d _at,i_when the Judge or ma.g1strate has sat1sf1e~ Himself . . I 1.1 that the decrey has been drawr .~p in ,I 1 accordance with\ the judgment he ~ha I· sign 1 the decree." I i · (emphasis added) !i 11 . !I' It is apparent that the date in the extracted! Order/Drawn Order 11 ,1 11 Ii does not tally ·with the date. when t'.~e ruling wrs 1Felivered. Ruling was pronounced on 15th February,:•2000 wherea! t~e extracted order · 1j i was signed by the Deputy Registrar on 2 nd Marc1, 2poo. ' ' 1· I . I . i1 !1 The fact 1s that, on the face of 1t Order XXli Rule 7 relates to i\I t11 :1I. decrees not, orders like the one under considerat/o~!. However, Order ' ' 11 ' :j 1 XL, Rule 2 solves the problem, to which the same ptovides that:- 111 ·Ii 1 i I! :j .I I:I 11 i! I IJ I II li ~' i 6 i i I ''Order 40, rule 2. The rules of Order\jXXXIX I~ I !t ,I shall apply, so 1far as may be, to appeals from 1 \\ 1 l,!I orders." ' 11 !I This Court in the case of Mkama Past6ry v. Tanzania i[ i Revenue Authority, Civil Appeal No. 95 0f ,~006, at Mwanza I I! (unreported) stated:- j 11 ' 1 I: l 1i "---- Order 39 which is referred to i ~,,i drder 40 ' l ;[ · (2) relates to appeals in origina I decrees. 1 1 1 That would inc1:ude a decree under! o1der 20, rule 7 of the Ad: which is required tb be dated ' .11 1j · as of the date when the j udg'me'nt was · li 11 , pronounced. We think, therefore, that on th I f • l[ . il e same panty . o reaso]n•f9 an . e~r~cte~ o_rd~r _of- ~he Hig~ urt in Icf . or1g1nal 1unsd1ct1on 1s requ1r ·. d,, under , . 11 I the authority of Order 40 (2) of the Act, . ~ r to bear the date when the rulind which ,: lt ', · the order was extract~d I was pronounced."·• I /i : I 1 \ 1 · I II I !I !' 1, 1! i i!'l ! 11 11 The. Court in Mkama Pastory (supl !I arrived to tha: • • I ,j . I' , 1 conclusion after having the view that, it could nJt ' 1\ Ii have,, been the I :· ! I intention of the legislature to require a decree to b&ar the date when ;\ 1 I ,I ( r1 ' the judgme'nt was pronounced but leave it ORen: for an extracted 1\ I_ :I . I 1 1 i 11 order to . bear any date regardless of when Ithr ruling appealed . 1! against was· pronounced. :: .I I . I : I, I 11 I I ' 11 !i1 . ' As pointed out above, the extracted orderbears the date which . . ! '.I does not tally with the date the ruling was pro~ oJnced. !I This means I I !I I I the extracted order in the/ecord of appeal is 1not valid, 'hence, has . , . .I II, , not complied with Rule 89 ~1) (h) of the Court 7f ippeal Rules, 1979. The same reads, inter a/ia, 6s follows:- !I: , , . . :\ 1 Ii I , i· 1 1 : "89 (1) For the purposes of an awp~al from' . th e H19 h C '; rt ,. ; ·ou I. · i . . 1 m 1~ /!ongma, .J 1 jurisdiction'. ··the record 1:o~j_ appeal shall subJect to the pr 1v1s1ons of 1 i ·I I sub-rule (3), contain cop ie~!1 of the 1 I 1, I . following documents - ; 1! (h) the dec~ee or order;" I · (Emphasis added). i I I ,, 'I 8 . Rule 89 (1) (h) mandatorily requires thbt he record of appeal to contain a copy of the decree or order. In t,~isi!appeal the record of I :I · I . . II l appeal contain a copy of an invalid extracted order which bears the 1 I i I i i 1: : date which does not tally with the date the rul)ng' was prpnounced. ,I . I i i i In the event, and ~or the reasons st~t~d herein above we I !; I : i~ I; overrule the first preliminary objection, sust~in the second point in 1 1 . 11 : 1 I, 1 the preliminary objection a,nd strike out the atjpe:al with costs. ' I\ I i r i i :1 DATED at DAR ES SALAAM this 25 th dav of March, 2008. 11 i I! . H. R. NS EKE LA JUSTICE OF APPEA J ,,:1 : J.H. MSOFFE JUSTICE OF APPEALI :1 !M.S. MBAROUK JUSTICE O:F APPEAIJ . I ,! I certify that this is a true copy of the or.igiMal. ••· I 1: ,, 1! i ' UMANYIKA ) i TY REGISTRAR i ,L