20090610 TZCA Dar es Salaam

· IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NSEKELA, J-~A., RUTAKANGWA, J.A. And MJASIRI, J.A.) CIVIL APPEAL NO. 107 OF 2007 _ LUSHOTO TEA COMPANY LIMITED .....................•.................. APPLICANT VERSUS TANZANIA'TEA BLENDERS (2002) LIMITED ..................... RESPONDENT RULING OF THE COURT 27 August, 2008 8t 10 June,2009 NSEKELA, J.A.: When the appeal came up for hearing, Mr. Ngalo, learned advocate for the respondent, raised a preliminary objection on the ground that:- the Judgment of the High Court contained in 11 the Record of Appeal at pages 329 to 343 is not signed by the trial judge as required by l, law. As such the appeal is incompetent for incorporating an unsigned judgment. " Mr. Ngalo briefly submitted to the effect that the appeal was against a decree and judgment and so the appellant should have ·· obtained a properly signed judgment and referred the Court to the . definition of "judgment" in the Appellate Jurisdiction Act, Cap.141 RE 2002. The judgment herein was incompetent because he contended, it was not signed by the trial judge. In support of this contention, the learned advocate cited a decision of this Court, Civil Appeal No.71 of 2004 between Lushoto Tea Company and Another v Tanzania Tea Blenders Limited- In Liquidation (unreported). With equal brevity, Mr. Kilindu, learned advocate, submitted that a judgment of the Court is a public. document which can be ... inspected and referred to sections 83(a) and 85(1) of the Evidence Act, Cap.6 RE' 2002.. He concluded that the record of appeal was certified in terms of Rule 89(5) of the Court of Appeal Rules and that ) • .. / in. the original record, the judgment was signed by the judge according to law. Our starting point is Order xx Rule 3 of the Civil Procedure Code, Cap.~3 RE 2002. It provides as follows:- 2 "(3) The Judgment shall be written b½ or reduced to writing under the personal direction and superintendence of, the J ! presiding Judge or magistrate in the language of the Court and shall be dated and signed by such presiding Judge or magistrate as of the date on which it is pronounced in open Court and when, once signed shall not afterwards be altered or added to, save as provided by section 96 or on review. " •, Admittedly,. the record of appeal which was file~I on the 26.10.2007 shows that it was not signed by the presiding j~dge. On I i the face of it, Mr. Ngalo, advocate seems to be on firrn ground. I However, Rule 89(5) of the Court of Appeal Rules, reads:- / "(5) Each copy of the record of appeal shall i be certified to be correct by the appellant or i I I i by any person entitled under Rule 28 to \ appear on his behalf. " 3 ' A que~tiqn we ask ourselves is, what is a certified copy? We i have not b~en able to see it defined in the· Court of Appeal Rules. I I I However, the Indian case . of Mohan Reddy v Neel·agiri I I Muralidha~ Rao AIR 1958 AP 485 has given us· inspiration at. page I 488 where it is stated thus:- , I i'~ certified copy is an authenticated copy and ' ~ certificate issued by an officer is only a ! I :written declaration of the fact that the copy is I I I ~ true copy of the original · A certificate is ' required to ensure that the copy is in accord I I \with the original. " i i On p~ge 1 of the record of appeal, learned advocate for the ! I appellant c¢rtified the record of appeal in terms of Rule 89(5). We r have taken ~~he liberty to examine the original record of appeal, that I i is the handwritten one, from which the typed copy originated, and I I I have found[ that Mr. Ngalo's complaint is unfounded. The judgment I was duly si~ned by the presiding Judge. It is not uncommon for this I i C9urt to e~amine original records in order to verify the accuracy of 4 disputed facts. For instance, in Civil Revision No.62 iof 2006, I Tanzania Telecommunications Co. Ltd and· 3 othe~s v~ Tri I i Telecommunications Tanzania Ltd, this Court said, inter! alia :- • I Upon our perusal of the documents laid 11 before us in this application and the original record the following facts are discernible~ " {See also: Civil Reference No.:1.2 of :l.994, i I i . I Shabir F.A. Jessa and Rajkumar Deogra (Unreported). '' Then the Court went on to make a comparisor of the I documents in the application before it and the original record. I We have examined the original record and have seen that the jjudgment i , , was duly signed on the 29.4.2004 by Kimaro, J. (as she then was) I ' the date the judgment was delivered in the presence of Mr./ Ngalo for ; i ' the plaintiff and Mr. Kiwango, for the defendants. As i we have ; ; demonstrated above Mr. Ngalo's complaint is factually incorrect. 5 I In the iresult, the preliminary objection is devoid of merit and is : . : I accordingly ~ismissed with costs. : DATED at o4R ES SALAAM this 5 day of June,· 2009. th ~ H. R. NSEKELA : JUSTICE OF APPEAL i I E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL is a true copy of the original. (J. S. ~*A~ DEPUTY REGISTRAR 6