20070920 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM:· KAJI, J.A., KILEO, J.A., AND KALEGEYA, J.A.) CIVIL APPEAL NO. 81 OF 2003 MOROGORO POLYSTER TEXTILE LIMITED ••••••• 1ST APPELLANT

PRESIDENTIAL PARASTATAL SECTOR REFORM COMMISSION ••••.••••••••••••••••••••••••••••• 2No APPELLANT AND M/S TECHNICAL TRADING SERVICES COMPANY LIMITED ••••••••••••••••••••••••••••••••.••••••••• RESPONDENT (Appeal from the decision and order of the High Court of Tanzania/Commercial Division at Dar es Salaam) (Bwana, J.) Dated 23 rd day of June, 2003 In Commercial Case No. 180 of 2001 RULING: 15 August & 21 September, 2007: KILEO, J.A.: (Dissenting) When the appeal was called on for hearing, Mr. Fungamtama, learned counsel for the appellants asked for an adjournment to allow him to file a supplementa'ry record with a properly signed decree. Alternatively, he prayed that if the court finds it necessary to strike out the appeal, then it may do so but with leave to re institute it after obtaining a properly signed decree. The decree in the record was signed by the Deputy Registrar. Mr. Fungamtama made the prayer bearing in mind previous decisions of this Court holding that decrees under Order XX of the Civil Procedure Code must be signed by the trial judge or his successor and not by the Registrar. Among these decisions are the case of Tanganyika Cheap Store v National Insurance Corporation (T) Ltd., Civil Appeal No. 37 of 2001 (unreported) and Anjum Vicarseem Abdi v Naseem Akhtarsaleem Zangie Civil Appeal No. 73 of 2003 (unreported). The prayer was strongly resisted by Mr. Magafu

learned counsel for the respondent, who claimed that the: appeal is incompetent because it is accompanied by a defective decree and therefore not capable of being adjourned. He prayed that the purported appeal be struck out with costs. There is no doubt that signing of decrees in original jurisdiction cases is provided for under both rule 7 of Order XX and rule 1 (d) of 2 . ' Order XLIII of the Civil Procedure Code. Order XX rule 7 provides as follows: - "The decree shall bear the date of the day on which the judgment was pronounced and, when the Judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree'~ Order XLIII rule 1 (d) provides as follows:- "1. Subject to any general or special direction of the Chief Justice/ the following powers may be exercised by the Registrar or any Deputy or District Registrar of the High Court in any proceeding before the High Court:- (a) (b) .................................................................................... . (c) .................................................................................... . 3 ( d) to sign decrees under Order XX, rule 7'~ The question which I am compelled to ask myself is: what was exactly intended by rule 7 of Order XX? Was it that the decree has to be signed by the trial judge and trial judge alone or his successor? I have tried

to compare rule 7 of Order XX with Rule 35 (4) of Order XXXIX. Both deal with the signing of decrees. One in original jurisdiction situations and the other one in appellate jurisdiction situations. The wording is different. Rule 35 (4) of XXXIX Order leaves no doubt that the judge shall sign the decree. It provides as follows: - "39 ( 4) The decree shall be signed and dated by the judge or judges who passed it'~ Order XX rule 7, provides that the judge/magistrate after satisfying himself that the decree is drawn up in accordance with the 4 judgment shall sign the decree. I do not think that the difference in wording between rule 35 ( 4) of Order XXXIX and rule 7 of Order XX was accidental. In my opinion the word "shall" used in rule 7 of Order XX ought to be interpreted with connection to "being satisfied that the decree is drawn up in accordance with the judgment". Once a decree is placed before the trial judge for signature and he/she is satisfied that it is drawn ;up in accordance with the judgment he/she I will have no alternative but to sign it. The decree can however be drawn up without necessarily being placed before the trial judge in which case the powers of the Registrars come in. I do not think that the wording of rule 7 had the effect of removing from the Registrars powers vested in them by Order XLIII rule 1 (d). Be it as it may, for several years Registrars have

been signing decrees in terms of Order XLIII, rule 1 ( d) of the Civil Procedure Code. They were exercising powers vested in them by the law. Now, if there is some kind of conflict in the law would it be fair to penalize an innocent party who was not privy to the making of the law? The appellant in this case was issued with the decree by the 5 .;; .. court, the Registrar signed it under powers vested in her by law. I do not think it is fair to place the blame on the appellant. I think we have a duty to expedite dispensation of justice and at all times ensure that substantive justice prevails. I might have been a party in the past in striking out appeals because they were accompanied by decrees signed by Registrars. Upon reflection I have found that I was wrong. In the light of the above considerations I would find the decree in the record of appeal to be valid and would order the appeal to proceed to hearing. DATED at DAR ES SALAAM this 20th day of September, 2007. E. A. Kileo,

JUSTICE OF APPEAL 6 , ~:~-i;J~t;Jm t this .js a true copy of the original. \ .(\ \ \ l ~ -- ' "• II ;~~Q~-- . 1.UITUSI ......__····-. DEPUTY REGISTRAR < :¥,_ ·" 7