20061212 TZCA Dar es Salaam4

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A, RUTAKANGWA, l.A, and KILEO, l.A.) CIVIL APPEAL NO. 31 OF 2004 MURTAZA MOHAMED RAZA VIRANI ................................. APPELLANT '¼Sfi : ~.~:4;~ !. AND MEHBOOB HASSANALI VERSI .................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania (Commercial Division) at Dar es salaam) (Kimaro, l.) Dated the 4 th day of September 2003 In Commercial Case No 281 of 2002.) RULING OF THE COURT 7 November & 12 December, 2006 KILEO, J, A.: The app,ellant, Murtaza Mohamed Raza Virani, through the services of Mr. Sylvester Shayo, learned advocate, brought the present appeal to challenge the decision of the High Court of Tanzania, Commercial Division in Commercial case no 281 of 2002. On 4th September 2003 the Commercial Court entered judgment on admission against the respondent Mehboob Hassanali Versi in . the amount of USO 85,000. The decision is challenged on the ·, .. ...... ' . ,,,,,,,_ 1 I ground, among others, that the honourable judge erred in holding that the appellant admitted liability in part or at all. Mr. Rwebangira, learned advocate appeared for the respondent. When the appeal was called up for hearing, the learned counsel for the appellant asked the Court to strike out the appeal with liberty to re-institute it within the next fourteen days. The learned counsel's request is grounded on the fact that the appeal lacks a valid decree; the one in the record having been signed by the District Registrar instead of the trial judge or her successor as per requirement of Order XX rule 7 of the Civil Procedure Code. Mr. Shayo also informed the Court that he filed an application in Court, which was intended to have the anomaly rectified, but that the application had not been scheduled for hearing until the time that the appeal was called up for hearing. The learned counsel further informed the Court that he filed the application bearing in mind the advice given in Civil Appeal No 36 of 2004 between NBC HOLDING CORPORATION and MAZIGE MAUYA & MWANAHAMISI BILAL!. In the above case the Court of Appeal upon finding that 2 the appeal was incompetent for want of a valid decree struck out the incompetent appeal and ordered the appellant, if he deemed so fit, to re-institute the appeal within 14 days of obtaining a valid decree from the High Court. The Court went on to give the following advice with regard to pending appeals: "With regard to pending appeals not yet scheduled for hearing/ parties would well be advised to resort to Rule 92 (3) of the Court of Appeal Rules✓ 1979/ to rectify defects and regularize the same in conformity with the law. ,✓ While agreeing that the appeal was incompetent on account of lack of a valid decree, Mr. Rwebangira, learned counsel for the respondent complained that the application was made with a view to pre-empt the respondent's notice of preliminary objection, which was filed as early as March 2004. We need not go into the details of the learned counsel's submission, but suffice it to state that the gist of his argument was that grounds no 1,2, and 3 in the memorandum of appeal ought to be dismissed with costs and the other grounds be struck out. In essence he was saying that grounds 1, 2 and 3 were on interlocutory matters that required leave of the court to appeal. 3 In response to Mr. Rwebangira's submission, Mr. Shayo argued that having conceded that the appeal before the Court was incompetent, counsel for the respondent cannot competently argue that the appeal be dismissed. We agree with Mr. Shayo that once it was conceded that the appeal is incompetent on account of lack of a valid decree, then it follows in actual fact that there is no appeal before the Court. If there is no appeal before the Court, then there is nothing to dismiss. Apparently, that the appeal lacked a valid decree was not one of the points which were raised by the respondent in his notice of preliminary objection. In the light of the above considerations we grant the prayer made on behalf of the appellant that the appeal be struck out for lack of a valid decree with leave to re- institute. The appeal is accordingly struck out with costs to the respondent. We further order that the appellant, if he wishes to 4 pursue the matter, re-institute the appeal within 14 days of the delivery of this ruling. Dated at Dar es salaam this 1th day of December, 2006 E.N. MUNUO, JUSTICE OF APPEAL E. M.K. RUTAKANGWA JUSTICE OF APPEAL E.A. KILEO JUSTICE OF APPEAL /;0:;::~\ //.' .'' ./. . . 'l ee.rtify-~~at . . \ ·• this is a true copy of the original. : ,'. . .'} . "i .\ ·:· ,.. ,.....: .,...-~.:~_·...::. ,j•:.-· -:i ,~_::t, "",;j)l IKA RAR 5