CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA CIVIL APPEAL NO. 74 OF 2023 (C/F Original Resident Magistrate Court ofArusha at Arusha, Civil Case No. 53 of 2021) M/S LODHIA PLASTIC INDUSTRIES LTD APPELLANT

VERSUS M/S WULKAN ENGINEERING LTD RESPONDENT

RULING 23 July & 26July 2021 BADE, J. This appeal has been preferred by the Appellant against the judgment and decree of the Resident Magistrate Court of Arusha at Arusha (trial court) in which it ruled that the suit was dismissed with costs for the Appellant's failure to prove its claims against the Respondent. When the appeal was called on for mention the counsel for the Respondent Mr. Lengai Merinyo raised a concern on the competency of the appeal on two specific aspects, hence this court availed parties the right to address it with regards to the said legal issues. Addressing the competency of the appeal Mr. Lengai submitted that the appeal is time-barred as it was filed on 14/12/2023 while the impugned judgment and decree was delivered on 9/11/2022. He further stated that the time limit to file an appeal originating from Resident Magistrate Court to this court is 90 days. He argued that sections 19(1), (2), and (3) of the Law of Limitation Act provide for the exclusion of the time used to obtain proceedings and decree, reckoning that the said exclusion does not apply to the appeal under consideration due to the fact that, firstly, the memorandum of appeal is accompanied by the proceedings, judgment, and decree, dated 11/01/2024, 09/11/2022 and 13/12/2023 respectively. The appeal is filed without prior application for an extension of time and an affidavit stating reasons as

to why the appeal is accompanied by defective documents. Secondly, that the decree itself is defective hence it is as if the decree doesn't exist. Compounding on the issue of defective decree, Counsel for the Respondent submitted that the appeal is accompanied by an improper decree dated 9/11/2022 and signed by Hon. Mbelwa, SRM while on the same date, judgment was delivered by Hon. Mutasi, RM and no explanation of how the successor magistrate issued a decree on the same Page 2 of 6 date the trial magistrate pronounced judgment. By referring to Order XX Rule 6(1) and Rule 7 of the Civil Procedure Code Cap 33 RE 2019, he reckoned the problem to not be on the date of the decree but rather on the magistrate who signed the decree being a successor magistrate but bearing the name of the trial magistrate. Mr. Lengai further cited Order XXIX (1) of the Civil Procedure Code Cap 33 RE 2019 which recognizes a judgment and decree to constitute the adjudication of the court. He argues the appeal may be accompanied by both, however, even the attached proceedings do not indicate any stage when the matter was taken by the successor magistrate. He prays that the appeal be dismissed with costs. Responding to the legal concern raised, Mr. Thomas Kessy counsel for the Appellant submitted that, Hon. Mbelwa signed as a successor magistrate after Hon. Mutasi vacated the office after pronouncing the

judgment without signing the decree, and the same he stated to be shielded by the law under Order XX Rule 8 of the Civil Procedure Code Cap 33 RE 2019. He is of the view that the decree is valid. Responding to the issue of time limitation, Mr. Thomas submitted that, it was on 13/12/2023 that the Appellant was aware of the decree, referring to the case of Bukoba Municipal Council vs New Metro N ' Page 3 of 6 Merchandise, Civil Appeal No. 374 of 2021 on page 11 and section 19 of the Law of Limitation Act, which excludes the time used to obtain a decree. In his view, the time limitation had to run from 13/12/2023, and since the appeal was filed on 14/12/2023 he maintained that to be well within time. The Respondent prays these objections be overruled with costs. In a brief retort, counsel for the Respondent reiterated his submission in chief and further distinguished the case of Bukoba Municipal Council (supra) and order XX Rule 8 of the Civil Procedure Code Cap 33 RE 2019from the current appeal as in the current appeal he emphasized the distinction that there is no issue of certification of a decree or judgment. Having considered the arguments by the counsel for the parties on the preliminary objections, the issue for consideration is whether the appeal is competent. Starting with the issue of decree, it is common knowledge that under the provision of Order XX Rule 7 of the Civil

Procedure Code Cap 33 RE 2019 the decree has to be signed by the trial judge or magistrate. It is an undisputed fact that in this case, the decree was signed by Hon. Mbelwa as a successor magistrate on the same date that the judgment was pronounced and signed by the trial magistrate. This is fatally defective and renders the decree to be defective and ineffectual. Page 4 of 6 More to say, the time frame to lodge an appeal from the Resident Magistrate court to this court is 90 days as per the provision of Paragraph 1 of Part II of the Schedule to the Law of Limitation Act. Again, for an appeal to be termed competent before this court, the memorandum of appeal must include the decree of the judgment of which it is found. For this see Order XXXIX Rule 1(1) of the CPC. The duty to ensure that, there is a decree and judgment attached to the memorandum of appeal lies with the Appellant. Since in this appeal the Appellant failed to attach a decree then the appeal is incompetent before this court. More to say, even if this court assumes that the decree is competent which is not the case, still the appeal was filed on 14/12/2023 while the judgment and decree were issued on 09/11/2022 beyond the 90 days as the law requires. In totality of what has been elaborated above it is the firm stand of this court that this appeal is incompetent and is hereby struck out with costs. It is so ordered. DATED at ARUSHA this 26th day of July 2024 A. Z. Bade Page 5 of 6 Judge 26/07/2024 Ruling is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 26th day of July 2024. A. Z. BADE

JUDGE 26/07/2024 Page 6 of 6