CIVIL APPEAL NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 30 OF 2023 OBADIA ALEX MKARIA................................. COMPLAINANT I APPELLANT I APPLICANT I PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH IN TANZANIA NORTH CENTRAL DIOCESE (ELCT-NDC), 2. MATHIAS NGOTO, 3. SAMWEL LOMAYANI MOLLEL ..................................RESPONDENT/DEFENDANT RULING A. Z. BADE, J, RULING 24/0 7/2024 & 13/09/2024 BADE, J. The Appellant lodged this Appeal against the Respondents having been aggrieved with the decision in Civil Case No 21 of 2021 from the District Court of Arusha raising several grounds of grievances. However, before the Appeal was called for hearing, the Respondents filed a notice of preliminary objection on November 20. 2023, notifying that the petition of appeal is bad in law for being accompanied by a defective decree contrary to Order XX Rule 7 of the Civil Procedure Code Cap 33 RE 2019 and that they shall move the court to strike it out for being incompetent. The parlies were ordered to dispose of the point of preliminary objection viva voce with the Respondent being represented by learned counsel Elibariki Maeda, while the Appellant fended for himself and appeared in person. The counsel for the Respondent Mr. Elibariki Maeda submitted that the objection is on point of law and concerns the competency of the Appeal as filed in court. He contends that the Appeal is defective since it has contravened Order 20 Rule 7 of the Civil Procedure Code, Cap 33 RE 2019. xplains that the delect is in the deciee attached to the petition ot appeal that bears the date of judgment as 16/12/2022, which docs not match with the date of the decree dated 15/12/2022. As pci the piovision of the cited law, the decree should bear the same date as the judgment, short of which the same becomes incompetent, and as such it is as if there is no appeal in the eyes of the law. Me insists that Judgment has to align with the decree, and il does not, then the appeal emanated from such decree becomes incompetent, referring to the case of Puma Energy T Ltd vs Ruby Roadways, Civil Appeal No 3 of 2018 where the court held in pp 5 and 6 ... a decree whose date differ from the date ot judgment means there is no decree. They could not even invoke the oxygen principle as il becomes part of the record of the court over which the decree was extracted from, and thence the appellate court cannot amend such." In that regard and on the basis o! the quoted authority, he urges the court to struck out the appeal for being incompetent and allow costs to the Respondent. Responding, the Appellant who appeared in person objected first to the fact that the Respondent is being heard on the objection, protesting that he was not availed of the essence of the objections. The court would not entertain such protest as the Appellant is estopped from not proceeding to argue the point of preliminary objection since he was addressed at the beginning of the hearing on their readiness to proceed with the scheduled hearing before being required to respond and confirmed his willingness and readiness to proceed. In response to the submission by the Respondent he argued that the decree in question had been obtained on 15/12/2022. insisting that on the copy of the judgment made available to him, the date of judgment is 15th December and 16th December al the same lime. He submitted that the judgment has both dates. He explained that his legal counsel noticed this fact, however, the Appellant relegated this error to an error of the court and or the court clerk, not him or his legal counsel, who in turn, was so misled by the clerk of the court who made such decree and judgment availed to him in the state it is in. Therefore in his view, this was an error of the court as they were directed by a court official to do what they did. His prayer then was for the court to now redirect the course ol action and accord him an opportunity to have the matter re-instituted so il can be heard on merit. In a brief rejoinder, Mr. Maeda pressed that the two dates appearing on the judgment as referred by the Appellant in his response refers to the two dates that are found on a judgment, which are the dates of the last adjournment, which was 15/12/2022, and the date of the delivery of the Judgment, which is 16/12/2022. Obviously, he argued, the second date should have also been the date of the decree. The counsel further joined issue with the Appellant and in line with his own admission, that the Appellant s counsel did see this anomaly (sic) but did not do anything about it. He thus prayed for the court to sustain the objection and have the matter be struck out in consequence, with costs. 1 Living consideied the arguments by the counsel lor the Respondent on the preliminary objection, the issue for consideiation is whether the appeal is competent before this court. It is common knowledge that under the provisions ol Order XX Rule 7 of the Civil Procedure Code, Cap 33 RE 2022 the decree has to bear the date of the judgment. This is due to the simple reasoning that a decree is born out of judgment. 11 is an undisputed fact that in this case, the decree is dated 15th December 2022, while the Judgment is dated 16th December 2022. It is as if the decree was issued before the judgment. This is fatally defective and renders the decree to be defective and ineffectual. Pertinent to note, 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 Civil Procedure Code, Cap 33 RE 2022. The duty to ensure that there is a proper decree and judgment attached to the memorandum of appeal lies with the Appellant. Since in this appeal the Appellant failed to attach a proper decree that is bom out of the judgment, then I have to agree with the counsel for the Respondent that the appeal is incompetent before this court. And as made clear by the Court of Appeal the said state of the affair cannot be saved by the overriding principle and let this court assume that the decree is proper to make the appeal competent by attributing the error to mixed- up dates as fronted by the Appellant. It still can not be saved as it has become part of the record of the court over which the decree was extracted from, and thence the appellate court cannot amend such. 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. Due to the circumstances of the matter, I decline to order any costs. It is so ordered. DATED at ARUSHA this 13th day of September 2024 Dated al ARUSHA ZONE this 13th of September 2024. A. Z. BADE, J JUDGE OF THE HIGH COURT