nyegezi social training institute vs raphael pomonhi 2008 tzhc 334 25 march 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HC.CIVIL APP.NO.15 OF 2005 (Originating from Mwanza District court Civil Case No.11/1993) NYEGEZI SOCIAL TRAINING INSTITUTE.............. APPELLANT Versus RAPHAEL POMONHI...........................................RESPONDENT 6/12/07 & 25/3/08 JUDGMENT RWEYEMAMUJ: In Mwanza Resident Magistrate court Civil case No. 11/1993 the respondent successful filled a suit against the appellant claiming special and general damages to the tune of shs. 1,675,300 /= for malicious prosecution. Disatisfied with the subordinate court decision, the appellant vide counsel Ms Butambala Advocates filled in substance 4 grounds of appeal-which grounds were contested by the respondent. In view of the delay in delivering this judgment, I find it necessary to state what transpired on appeal: Hearing of this appeal proceeded by way of written submission. The order to proceed by submission was made on 9/10/2007 in the absence of the respondent. According to that order, the respondent was to file his reply by 13/11/2007 and subsequent to that, judgment was to be derived on 11/12/2007. The respondent thereafter, vide his letter to court dated 7/11/2007 sought to have the reply date extended, and the same was extended to 6/12/2007, inadvertently no judgment date was given there after thus the delay. Now, in the grounds of appeal and reply both parties dealt with the substantive issues, namely whether on the evidence a claim for malicious prosecution was made out and whether vicarious liability of the appellant was established. In his submission in reply however, the respondent (who was unrepresented) raised a point which ought to have been raised by way of preliminary objection to the appeal. He submitted that the appeal was incompetent for failure to comply with Order 20 Rule 7 of the Civil Procedure Code, (CAP 33 R.E.2002) in that the decree accompanying the appeal was wrongly dated. I have checked the facts on record. The judgment appealed against was delivered on 30/3/2005 but the decree in question bears the date 4/8/2005 contrary to clear provision of Order 20 R.7 which states " 7. The decree shall bear the date o f the day on which the judgment was pronounced ana' 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." In support of the proposition that the said err makes the appeal incompetent, the appellant cited the TCA decision in Jovin Mutagumba & 85 Others V Geita Gold Mining, Civil Appeal 109/2005 (Mwanza registry unreported). The respondent is right. Authorities for such propositions are now abound, so long as the decree bears a different date with the judgment (which it the position in this appeal), the appeal is incompetent. On the authority of the cited case, I can not grant leave to the appellants to refile this appeal in these proceedings. The appellant is at liberty to take the next legal step, if they so wish, to have the appeal considered on merit. In the mean time this appeal stands struck out with costs for reasons started. At Mwanza 27/ 3/2007 Delivered in the presence of Mr. Butambala Advocate for the Appellant and in the presence of the Respondent in person this 27th day of March 2008.