20110225 TZCA Dar es Salaam

\ . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ' ' {CORAM: MSOFFE, l.A., MANDIA, J,A., And ORIYO, l~A.) CIVIL APPEAL NO. 26 OF 2009 MURTAZA MOHAMED RAZA VIRANI ........................................ ~.;. APPELLANT VERSUS ' .. ~; , ( MEHBOOB HASSANALI VERSI .....................................1•••••• : •••• . .,; ' ~, ' '·,. _.i. ,-RESPONDENT {Appeal from the judgment and decree of the High Court of Tanzania {Commercial Division) at Dar es Salaam {Kimaro, l.) dated 4 th day of September, 2003 in Commercial Case No. 281 of 2002 RULING OF THE COURT 9 & 25 February, 2011 ORIYO, J.A.: This is an appeal arising from a preliminary decree or order of the I trial J-ligh Court where the appellant, had, in his Written Statement of Defence, made an admission to part 1of the claim in the plaint. The court entered judgment on admission on 4th September 2003. Aggrieved, the appellant preferred the appeal using the services of Mr. Sylvester Shayo, learned advocate. 1 .fa \ I I I By a Notice of Preliminary Objection made under Rule 107(1) of the I ' I Tanzania Court of Appeal Rules, 2009 Cthe Rules 1 lodged on 4th February 1 2011, Mr. Eustace Rwebangira, learried advocate for the respondent I .! sought orders of the Court to strike out the appeal with costs for I I incompetency. The grounds of objection were as follows:- 1 I I 1 (a) That the record of appeal is incompetent as it lacks ! I a copy of the Order appealed against dated I , 4/9/2003, which is contrary! to Rule 89(1) (9) of the I Rules, 1979. j I (b) That some of the groundslof appeal are based I on I an earlier decision of the High CourF dated 24/7/2003, for which thereiwas no Notice qf Appeal filed against it. I I I I (c) That the record of appeal is incompetent in the • I I absence of a Ruling dated 24/7/2003 allegedly I contained at pages 70 - 76 of the record which 1 I pages are missing. 2 . - , , In the course of addressing us on the above points of objection Mr. I Rwebangira raised an interesting point that the record of appeal correctlyI contained a Decree extracted from the order of the trial court which led to the judgment on admission on September 2003. He went further to argue that the record should have also contained a DrawnI Order extracted alongside the Decree. On being prompted by the Court on the status of the I Decree on record extracted from the trial court decision of ' 4 September 2003 and dated 27 December, 2006., the learned advocate I submitted that the decree is defective 'in that respect. He stated that the record of appeal is incompetent for containing a dedree whose date is different from the date of the decision being appealed against, contrary to Order XX Rule 7 of the Civil Procedure Act, Cap 33, R.E. ,2002. Mr. Shayo, learned advocate, was at first taken by surprise but subsequently, he easily conceded to the reality that the decree which was in the record of appeal did not comply with the provisions of Order XX rule 7 of the Civil Procedure Code. I On our part, we had no difficulty in dealing with the last issue on the I decree as consented to by parties. As stated earlier on, the appeal is 3 ' I I - I sought against the decision pronounced by the trial Court on the 4th September 2003, but the decree was Jigned by the t~ial judge on 27th I I December, 2006. The dating and the sibning of the deqree is couched in I the following words:- "Judgment on admission entered against the first I Defendant for the amount of US $ 85,000: , : I Given under my hand and the seal of the 1' I Court this 27th day of December, 2006." : Obviously the date of signing the decree differs with the date the decision of the court was given. Order XX rule 7 reads as follows:- " The decree shall bear .the date on which the I : judgment was pronouncj and when the fudge or magistrate has satisfied himself that the decree has been drawn up in accorda/2ce with the judiment . ! he I shall sign the decree. " 4 , I ' - I I I I I We wish to observe here that the contents of a ,redord of appeal are I spelt out under rule 89(1) of the rules, 1979 (now rul~ 9/6(1) of the Rules, I 2009). The sub-rule provides as follows:- I I I I I I " 89-(1) For the purpose, of an appeal frfm the High Court in its original jutisdiction, the rel(:ord of appeal shall, subject to thi provisions of rubrule (3J contain copies of the following documents- I . I I . I (a) an index of all the drcuments in th; record with the numbers of the pages at wh{ch they I appear; I , I (b) a statement showing the address ton service I I of the appellant and the address fo1 service furnished by the res{Pondent anct as/ regards I I. any respondent wh0 has not furn~shed an address for se!Vice a1 required by Rule 79, his I I last known address and proof of service on . . I him of the notice of 1ppeal,· . i1 1 I I s i Ii , .. I (c) the pleadings; I I I (d) the trial Judge's notes of the hearing;. ' 'I I I :, I (e) the transcript of any shorthand notes taken at !' I I the trial; 11 1 !, I (f) the affidavits read and all documents put in , 1 I I evidence at the hearing or, if such doc«ments 1, I I, I are not in the English language, their c¢rtified translations; (g) the judgment or order,·/ I, (h) the decree or order,· j, I J, I (i) the order, if any giving:, leave to appeal;i i I (j) the notice of appeal· !· I 1, I I (k) such other documents, if any, as may be I !, I necessary for the proper determination of the 1 1 I appeal including / any interlocutory i, II proceedings which Jay be directly relevant I I I ' I save that the copies teferred to in pa{agraphs :' I : I " I (d), (e) and (f) shaf exclude copie of any I ·, 1I II I documents or any o{ their parts that: are not I I I I I I 6 /,' relevant to the mattes in controversy oh the appeal." It is evident from rule 89(1) (h) ,above that one of the essential I : documents to be contained in a record 01 appeal is a copr of the decree or order appealed from. It is now settled that non- incorpor~tion of a copy of decree or incorporation of a defectLe decree renbers the appeal I incompetent. I I For instance, some of the previor decisions of ~his Court on the issue of defective decrees can be found in the cases of:-: I I Haruna Mpangaos anti 902 Others Vs Tanzania Portland Cemelt Co. Ltd, CiviliAppeal No. 10 of 2007; I Kapinga and Company I I Advocates Vs NBC Ltd, Civil Appeal NoI 42 of i I 2007; Mkama Pastory Vs T.R.A, Civil Appeal No. 95 of 2006; Zanzibar Insirance Corpora1:ion Vs Paul Mwita Chacha, Civil Appeal No 83 0f 2006; I (all unreported). 7 ,- . We are therefore, firmly of the view that a decree which does not ' bear the date when the judgment was pronounced is not valid. It follows that the appeal to this Court which does not contain ~ correctly dated decree will not have complied with the requirements of Rule 89 (1) (h) of ' the Court Rules, (supra). In the present appeal there is no dispute that the decree in the record of appeal filed on 15/4/2009 is defeq:ive and therefore invalid. In the case of Fortunatus Masha Vs William St,ija and Another [1997] TLR 41, objection was taken that the record, of appeal did not contain the drawn or extracted order which is contrary to Rule 89(1) (h) of the Rules. The respondent conceded to the non-compl(ance with the rule but contended that the omission did not render the appeal incompetent. To this, the Court had the following to say:- " The law as it now stands is that failure to extract the decree or order in terms of Rule 89 (1) (h) and (2) (v) of the Court of Appeal Rules renders the appeal incompetent ✓/ 8 • I '\ I Apart from that the Court expressed the view that there/ is no difference between extracting an invalid decree as Jas the case in t~e present appeal I I I and failure to extract a valid decree as in Masha's case. IIn all such cases I I the appeal is incompetent and the remedy is to strike it oJt. I I I I Accordingly we strike out the appe~I. In the absence of a competent appeal before us, the respondent's Nitice of Prelimihary Objection is I . I I I rendered redundant. Since the defect in dating the decr~e which led to the ! I I striking out of the appeal was prompted by the Court, w~ make no order as I I ~oo~. : I I I We so order. / 9 I I nd DATED at DAR ES SALAAM this 22 . ay of February, 2011. J. H. MSO~FE JUSTICE OF APPEAL W. S. MANDIA J JUSTICE OF APPEAL K. K. ORijl'O JUSTICE OF APPEAL I certify that this is a true copy of the orilinal. ~ . ~ y. MKWIZU I DEPUTY REGISTRAR COURT OF APPEAL 10, I