20090605 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 LUSH OTO TEA COMPANY LIMITED ........................................ APPLICANT VERSUS TANZANIA TEA BLENDERS (2002} LIMITED ..................... RESPONDENT .( RULING OF THE COURT 27 August, 2008 & 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 the Record of Appeal at pages 329 to 343 is not signed by the trial judge as required by law. As such, the appeal is incompetent for incorporating an unsigned judgment. " 1 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.33 RE 2002. It provides as follows:- 2 "(3) The judgment shall be written by, or reduced to writing under the personal direction and superintendence of, the 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 filed on the 26.10.2007 shows that it was not signed by the presiding judge. On the face of it, Mr. Ngalo, advocate seems to be on firm ground. However, Rule 89(5) of the Court of Appeal Rules, reads:- "(5) Each copy of the record of appeal shall be certified to be correct by the appellant or by any person entitled under Rule 28 to appear on his behalf. " 3 l A question we ask ourselves is, what is a certified copy? We have not been able to see it defined in the Court of Appeal Rules. However, the Indian case of Mohan Reddy v Neelagiri Muralidhar Rao AIR 1958 AP 485 has given us inspiration at page 488 where it is stated thus:- •~ certified copy is an authenticated copy and a certificate issued by an officer is only a written declaration of the fact that the copy is a true copy of the original. A certificate is required to ensure that the copy is in accord with the original. " On page 1 of the record of appeal, learned advocate for the appellant certified the record of appeal in terms of Rule 89(5). We (.) have taken the liberty to examine the original record of appeal, that is the handwritten one, from which the typed- copy originated, and have found that Mr. Ngalo's complaint is unfounded. The judgment was duly signed by the presiding judge. It is not uncommon for this Court to examine original records in order to verify the accuracy of 4 disputed facts. For instance, in Civil Revision No.62 of 2006, Tanzania Telecommunications Co. Ltd and 3 others v. Tri Telecommunications Tanzania Ltd, this Court said, inter alia:- "Upon our perusal of the documents laid before us in this application and the original record the following facts are discernible. " {See also: Civil Reference No.12 of 1994, Shabir F.A. Jessa and Rajkumar Deogra (Unreported). " Then the Court went on to make a comparison of the documents in the application before it and the original record. We have examined the original record and have seen that the judgment was duly signed on the 29.4.2004 by Kimaro, J. (as she then was) , l the 9ate the judgment was delivered in the presence of Mr. Ngalo for the plaintiff and Mr. Kiwango, for the defendants. As we have demonstrated above Mr. Ngalo's complaint is factually incorrect. 5 l In the result, the preliminary objection is devoid of merit and is accordingly dismissed with costs. DATED ·at DAR ES SALAAM this 5th day of June, 2009. H. R. NSEKELA JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL is a true copy of the original. (l.S.~~ DEPUTY REGISTRAR 6