20061004 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA (CORAM: LUBUVA, J. A., RUTAKANGWA, J. A., And KIMARO, J. A.} CIVIL APPEAL NO. 9 OF 2005 RICHARD TEMBA Alias GERALD MCHOMBA ........... APPELLANT

VERSUS OSCAR T. TEMBA ••••••••••••••••.•.••••.•..••••••••••••••••••• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Mchome, J.) dated the 15th day of October, 2004 in Civil Case No. 16 of 1999

RULING OF THE COURT ----------------- 25 September 2006 & 4 October 2006 KIMARO, J. A.: The appellant, Richard Temba alias Gerald Mchomba, was sued by the respondent, Oscar Temba, for recovery of an outstanding debt 2 of Tshs.17,447,250.00. The High Court, Mchome, J. granted judgment to the respondent for Tshs. 7,295,000.00 together with interest at 35% p.a. from 31/12/1995 to the date of the delivery of the judgment. A further interest of 12 ½ % was also granted from the date of the delivery of the judgment until payment in full. Costs were also ordered for the respondent. The. appellant was aggrieved by the judgment and he filed this appeal. When it was called on for hearing, Mr. J. P. Sandi, learned counsel who appeared for the respondent, raised a preliminary point of objection consisting of two points, notice of which had been lodged earlier under Rule 100 of the Court Rules. He abandoned one of the two points and opted to argue the following point of objection:- That the copy of the decree comprised in the record of appeal is defective in view of Order XX rules 7 and 8 of the Civil Procedure Code, 1966 and Rule 89(1)(h) of the Court of Appeal Rules. 3 In support of the point of objection, it was submitted by Mr. Sandi that in terms of the provisions of Order XX rules 7 and 8 of the Civil Procedure Code 1966 a decree is valid only when it is signed by the trial judge or

magistrate or their successor in office. He observed that the decree which forms part of the record of appeal at pages 67 to 68 was signed by the Registrar who has no powers to sign the decree. It was further submitted that under Rule 89(1)(h), it is mandatory for the record of appeal to contain a copy of decree. Since the decree is invalid, the appeal is incompetent and must be struck out with costs. The appellant appeared in person. The record of appeal, though prepared by M/S Shayo, Jonathan & Co., Advocates, shows that the preparation was done gratis. The appellant conceded that the decree is signed by the Registrar. At first he ventured to explain the reason why the Registrar signed the decree. He said the reason 4 was the transfer of the trial judge. Eventually he ended up throwing the blame on the advocate who prepared the record of appeal. The issue before us is whether or not the Registrar has powers to sign the decree. Fortunately, we need not task our minds any further on this point because of recent, the Court has made numerous decisions on the point. The case of Tanzania Sewing Machines Company Limited v. Njake Enterprises Limited, Civil Appeal No. 28 of 2004 (DSM) {Unreported} cited by Mr. Sandi is a case in point among others. The most detailed case on this point is Tanganyika Cheap Store v. National Insurance Corporation (T) Ltd., Civil Appeal No. 37 of 2001

(Dar es Salaam) {unreported}. In the Tanganyika Cheap Store (supra) the issue was raised by the court suo motu after noting that the decree was signed by Deputy Registrar. The Court invited submissions from counsel for both parties who were in general agreement that the Deputy Registrar had no power to sign the decree. The Court said:- 5 We are of the settled view that the Deputy Registrar had no competence to sign the decree under Order XX rule 7 ... The use of the word "shall" in Order XX rule 7 indicates that there is no room for any other person to sign the decree. Order XX rule 7 has specifically designated judges and magistrates to sign decrees as appropriate. Order XX rule 7 is categorical. The decree must be signed by the trial judge or magistrate. The decree in this appeal was signed by the Registrar who had no power to sign the decree. It is an invalid decree. The appellant seemed to suggest that the Registrar had authority to sign the decree because at the time the decree was signed, that is 15th October, 2004 the trial judge had been transferred to Mwanza. With respect, his argument is not correct. Mr. Sandi submitted, and we agree with him, that where the trial 6 judge or magistrate fails for one reason or another to sign the decree, it must be signed by the successor in office if the judge or magistrate has been transferred. This is what is provided for in

the provisions of Order XX rule 8. It provides that:- "(8) Where a judge or magistrate has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with the judgment may be signed by his successor". In this case, the judge who took over office from Mchome, J. should have signed the decree and not the Registrar. The appellant submitted that he was not at fault because the record of appeal was prepared by an advocate who ought to have known the law. Much as we sympathise with the appellant, on what has be fallen on him, we wish to reiterate that negligence of an advocate is not an excuse for not complying with the law. 7 Under rule 89(1)(h) it is mandatory for the record of appeal to have a copy of decree. As noted earlier, the record of appeal is accompanied with an invalid decree. This appeal therefore, is incompetent. We uphold the preliminary objection and strike out the appeal with costs. Finally considering that the appellant was not represented, and the High Court has a share of the blame that resulted in this unfortunate situation, we grant the appellant a period of fifteen days from the date a valid decree is obtained from the High Court at Moshi, to re-institute the appeal if he so wishes. It is ordered accordingly. DATED at ARUSHA this 4th day of October, 2006. 8 D.Z. LUBUVA

JUSTICE OF APPEAL E.M.K. RUTAKANGWA

JUSTICE OF APPEAL N. P. KIMARO

JUSTICE OF APPEAL I certify that this is a true copy of the original.