20080807 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, C.l., LUBUVA, l.A. And NSEKELA, l.A.) CIVIL APPEAL NO. 42 OF 200.7 KAPINGA & COMPANY ADVOCATES ............. ~ ...... APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED ...•.. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mushi, l.) dated the 23 rd day of August, 2006 in Civil Reference No. 4 of 2003' RULING OF ifHE COURT 16th June & 12th August, 2008 NSEKELA, l.A.: I On the 24.4.2008, this appeal was scheduled for hearing. However on the 17.4.2008 before the hearing date, counsel for the respondent, the National Bank of Commerce Limited,. filed a notice of preliminary objection in terms of Rule 100 of the Court of Appeal Rules, (Court Rules) 1979 to the effect that the record of appeal filed by the appellant on the 10.5.2007 be struck out on the ground - 2 "That the ruling and Order appealed ,against offend against the provisions of Order XX Rule 7 of the Civil Procedure Code, Cap. · 33 RE 2002'~ ' The essence of the preliminary objection as; elaborated by Ms I Fatma Karume, learned advocate, was to the effec~ that the record of appeal contained a defective order. She submitted that the order did not bear the date of the judgment when it was pronounced in terms of Order XX Rule 7 of the Civil Procedure Code,' Cap 33 RE 2002 (CPC). This defect, she contended, rendered the appeal incompetent ; and liable to be struck out. Mr. M.E.C. Mhango and Prof. G. Mgongo Fimbo learned ' advocates, appeared on behalf of the appellant, Kapinga & Company Advocates. Mr. Mhango readily conceded that the ,order in question was defective as pointed out by the learned advocate for the respondent. However, he submitted that, first, that ,the court officials were responsible for supplying a defective order. The appellant had no hand in it and therefore in the interests of justice, the appellant ' should not be penalized for the mistake of the court and its officials. 3 Second, the irregularity in the order did not occasion any prejudice or injustice to the appellant. Under the circumstances, the learned I advocate concluded that the Court should direct the trial Judge to rectify the error committed by its officials. Soon after hearing the engaging submissions from the learned advocate, the Court made the following Order - "The appellants to correct the irregularity in the extracted order with respect to the date and they are given 14 days to do ·so from today. Reasons for the order to be given later. The Registrar to fix the appeal in the next sessions. Cost of this hearing to follow the event. It is so ordered. " On the 8.5.2008, the learned, advocates for the appellants filed a Supplementary Record of Appeal under Rule 92 (3) of the Court Rules which contained a proper ·order of the High Court dated 23.8.2006. On the 16.6.2008 when the appeal was called again for I hearing, the Court sought clarification from the learned advocates for the appellants, whether or not the status of the appeal had changed ; .. 4 I . I pursuant to the Court Order da,ted the 24.4.2008. Mr. Mhango, I learned advocate, answered in the affirmative. He submitted that the Supplementary Record of Ap~eal was filed in Court pursuant to I the Court Order and it contained a properly dated order. Prof. G. II Mgongo Fimbo, added that since the Court did not make an order for ·. I . the amendment of the impugned order under Rule 104 of the Court Rules, the appellants were now selking directions under Rule 3(2)(a) II of the Court Rules on the modalities for filing in Court the corrected I 1 order in order to implement th e order of the Court. In her I submission, Ms Fatma Karume submitted that a supplementary I I' . record of appeal cannot correct a defect under Rule 89 of the Court I I Rules. She was of the view that it was not possible to correct an incompetent record of appeal. I I Our Order dated the 24.4.2008 had two limbs to it, first, to l correct the irregularity in the ext~acted order with respect to the date, and second, to effect that lrrection within fourteen days of I I the date of the Order. The issue now before us is, could the .I I irregularity in the extracted order, be corrected by filing a 5 supplementary record of appeal?\ This takes us to the status of Civil Appeal No. 42 of 2007 when we ~made the Order on the 24.4.2008. I It will be recalled that on the 17.4.2008, the respondent filed a I Notice of Preliminary Objection ~o the effect that the date of the I order and that of the ruling when' it was pronounced were different, I thus contravening Order XX Rul~ 7 of the CPC. In the case of I I Mkama Pastory v Tanzania Re~enue Authority, Civil Appeal No. I 95 of 2006 (unreported), the Court posed the following question - I I "The question now is/ io/hat would be the legal I status of an appeal which is accompanied by an extracted order w~ich does not bear the ' ' date when the ruling was pronounced?// ! I This was the same problem facing 'us in the respondent's preliminary I I objection. The Court considered O~der XX Rule 7 of the CPC; a ruling of this Court in Jovin Mtagwaba and 85 Others v Geita Gold I Mining Limited (unreported); a reknowned treatise, Mulla on the i Code of Civil Procedure (15th e~ition) at page 1524 and stated I as under - \ I I I \ 6 "The date of a decree) and by extension of an I order✓ is important not only in reckoning time for appeal but also tdr purposes of period of 1 limitation in the case ot an application to set aside an ex partk decree or order. Furthermore the right! to execute a decree or I i order accrues from the date it is pronounced, I not on the day it is sighed We are, therefore, I firmly of the view that an order which does I not bear the date when the Judgment or I ruling was pronounce~ is not valid It follows 1 that an appeal to this Court which does not 1 contain a correctly datkd decree or order will I not have complied with the requirements of I Rule 89(1)(h) of the Court Rules, 1979. ...... . I We do not consider that the omission is a I mere irregularity but it goes to the root of the I appeal." \ \ This decision was cited with !approval in subsequent decisions , of this Court - The Hon. Attorn~y-General v Rev. Christopher \ Mtikila, Civil Appeal No. 20 of 2007 (unreported); Kashemeza I ' I Phares Kabuye v Choya Anatoly Kasazi, Civil Appeal No. 110 of I I 2007 (unreported), (i) Uniafrico Limited (ii) Karim Kanji (iii) I \ 7 Minez Kanji v Exim Bank (T) Limited (unreported. It is evident from these decisions that if an appeal does not bear the date of the 'I day on which the judgment/ruling was pronounced, such an irregularity is fundamental, it go~s to the root of the matter, and renders the appeal incompetent. Therefore, as from the 24.4.2008, when we made the order to correct the defective order, there was no appeal before us, hence the second limb of our order, that the appellant should correct the irregularity within fourteen days. Purporting to comply with :our order dated 24.4.2008, the appellant on 8.5.2008 filed a Supplementary Record of Appeal. It contained a proper order of the High Court which complied with Order XX Rule 7 of the CPC. In, legal parlance, a supplementary record of appeal supplements the original record of appeal to include additional or further documents which are in the opinion of an appellant or respondent, required for a proper determination of an appeal. This is evident from Rule 92(1) and (3) of the Court Rules. (see: Kiboro v Posts & Telecommunications Corporation [1974] EA 155; Haruna Mpangaos and 902 Others v Tanzania \ 8 .... Portland Cement Company Limited, Civil Appeal No. 10 of 2007 I (unreported). The record of appeal should contain, where applicable, I documents enumerated in Rule i 89(1) of the Court Rules which I include "the decree or order". According to Kiboro's case supra, 1 I a supplementary record of appeal cannot contain one of the I documents in Rule 89(1). In th~ instant case, the supplementary I I . record of appeal contained, inter alia, the impugned order on page I i 245. In the cases of Fortunatus Masha v William Shija and I I Another (1997) TLR 41 and National Bank of Commerce v I Methusela Magongo, (1996) TllR 394, the respective records of I I appeal did not incorporate the cirders/decrees of the High Court I being appealed against. The Court struck out the appeals as I incompetent for not containing a copy of the decree/order being appealed against. Since the order! herein was defective, the appeal before the Court was therefore incompetent. Admittedly, on the 24.4.2008 we did not proceed on \\to strike out the appeal, but the fact of the matter is that the appeal remained incompetent until the . I defect had been corrected. The pdsition of the law as it now stands I I is that a defective order or decree under Rule 89 of the Court Rules I I I 9 renders an appeal incompetent. We have already referred to decisions of this Court where the defect related to the date in the order or decree. In earlier decisions of the Court, the same fate had met appeals where appellants did not extract orders/decrees. · For instance in the case of Fortunatus Masha v William Shija and Ano~her (1997) TLR 41 the Court stated as follows at page 44 - "The law as it now stands is that failure to extract the decree or order in terms of Rule 89(1)(h) and 2(v) of the Court of Appeal Rules renders the appeal incompetent see for instance The Commissioner of Transport v The Attorney General of Uganda and Another {1959) EA 329; and Juma Mtale v K.G Karmali (1983) TLR 50. The finding that an appeal is incompetent has constantly resulted in striking out such appeal, see for instance The National Bank of Commerce v Methusela Magongo {1996) TLR 394. There is no room for Mr. Makani's view that non-extraction of the decree or order is a mere procedural or administrative irregularity. In Arusha International ·Conference Centre v Damas Augustine Nclemasi Kavishe, Civil Appeal No. 34 of 1988 ( unreported) it was held that suet, non- compliance was fundamental and went to theI root of the matter. " I This decision was cited with approval in the ~ubsequent case of Dr. Masumbuko R.M. Lamwai v (i) Venance Francis Ngula (ii) The Attorney-General, Civil Appeal No. 56 of 1997 I (unreported). The point we woul'd like to under~core is that there was no order in terms of Rule 89(1)(h) of the , Court Rules thus rendering the appeal incompetent. Now, in order to correct the I I defective order, a fresh record of appeal containi~g a proper order had to be filed according to law. This has been the position of the law since the decision in the case of Robert lohrt Mugo v Adam I Mollel, Civil Appeal No. 15 of 1991 (unreported), fqllowed, inter alia, in Haruna Mpangaos and 902 Others v Tanzania Portland Cement Company Limited, Civil Appeal Nb. 10 of 2007 I I (unreported). The appellants as explained in Haruna's case, could not correct the defective order by filing a supplementary record of appeal. The original record of appeal is still intac,t and contains a 11 defective order. We are therefore constrained I to state that the I i position existing on the 24.4.2008 has not changed at all. There is I . I . still no competent appeal before us. We accordingly strike out the appeal with cosrs, I , I DATED at DAR ES SALAAM tnis ih day of August, 2008. 1 I 1 A.S. L. RAMADHANI I I CHIEF JUSTICE D.Z. LUBUVA I JUSTICE OF APPEAL H. R. NSEKELA JUSTICE dF APPEAL I l , I I certify that this is a tr e copy of the o~iginal I I P.B. Khaday I AG. DEPUTY REGISTRAR,