20170223 TZCA Dar es Salaam

.t{•..:· JIii: -~ ,... . ·1N ·THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . . . ,. . :t,coRAi~f: MBAROUK; J.A .• MWARIJA, J.A. Ahd LILA. J.A:-J . -. ·- . CIVIL° AP,PEAL NO. 95 OF 2010 . .

VERSUS TANZANIA TOURIST BOARD .................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dar es salaam) (Mlay, J) Dated 21st day of April, 2009 in Civil Case No.. 432 of 2002

RULING OF THE COURT 6th & 23 rd February, 2017 MWA'RIJA, J.A.: The appellant, Rose Mbwambo instituted this appeal on 14/12/2010 challenging the judgment and decree of the High Court (Mlay, J, as he then was) in Civil Case No. 432 of 2002. On 2/2/2017 the learned counsel for the respondent filed a notice of preliminary objection. Since as a matter of practice, the same had to be determined first, on 6/2/2017 when the appeal was caned on for hearing, the learned counsel for the parties were heard on the objection which c_onsists of two grounds: 1 II'' - '1.. That :the,. appeal before the Court is incompetent .for lack. of. a .valid Decree to .. ••• •• R• ••-•W>~:.,...,: __ ....:.:.,:._•-~•••••• •• .. ---··•----Or ,-· support the Appeal.

2. That the purported appeal before the Coutt is a nullity in law. // At the hearing, the appellant was represented by Mr. Jotham Lukwaro, learned counsel while the respondent had the services of Mr. Winfred Mnzava, learned counsel. Submitting in support of the preliminary objection, Mr. Mnzava who ar,gued the two grounds together, contended that the appeal is incompetent for want of a valid decree. The gravamen of his contention is the variance of the dates of the decree and that on which the judgment was pronounced. He explained that whereas the judgment was delivered on 22/4/2009, the decree is shown to have been given on 22/4/2002. Relying on the provisions of Rule 96 (1) (h) of the Court of Appeal Rules, 2009 (the Rules) in which a copy of a decree is listed as one of the essential documents that a record of appeal must contain, the learned counsel argued that the inclusion of an invalid decree in the record renders the appeal incompetent. He cited the case of Kapinga & Co.. Advocates v. National Bank of Commerce 2 ,. ,. ·:;--·. ,,__ .JIJim•t~d; (Jrvi:I Appeal NQ-~,42 Of 2007 (CA-DSM) (unreported) to bolster his -!:~;.-_:i::.I:.:~~-~i~~a~~rJ·rrl~wi~Ha{t,,aifecst"ii~:flil~itJ~aers~lhE{appeal incompetent... · _· -: Itl his .further . stibrr1ission, Mr. Mnzava opposed the statement in the ,__ ,-~~"'--~- _. . . . · - - , - ·-- .'···:-7-::_~·-,·· r~po~dent's written -submission

describing the defect in the decree as· a mere typographical error which does not render the appeal incompetent. He also submitted on the move taken by the appellant, of filing an application seeking to correct the record. That application does not however, form part of the record of this appeal. In response, Mr. Lukwaro did not dispute that there is a variance of the date on which the judgment was pronounced and the one shown in the decree as the date on which the same was given. He reiterated what he stated in the opening paragraph of his written submission filed in support of the appeal, that the defect arose as a result of a typographical error. He said that since the respondent did not respond to that argument, it should be taken to have conceded that the error is minor and curable because, the correct date is stated in the d_ecree where, on the first page under item ( e), the 22 nd day of April, 2009 is shown to be the date of the decree. He said that the year 2002 shown on the second page of the decree resulted from a typing mistake. Mr. Lukwaro submitted further that the error has not 3 . "_ '• Jprejudired,:the~espondent and that therefore, the same is curable under ·.· -----:--~:< ~_:'"-~-=-~-_- ... -:--~•::;.:,-:,-:·-,;_"":::-:~;~~~~-:::.~_-··, ' -~- .~ ' . ,_~:_:··'·.:·:c-:r;~~- . . ::)~.-~le:~?fl?),J~~t~~JtJs·!~~-1~-~~:?C·~ .-:- . . ~··_::•.!-:r:~::-.. "'~-_ ;:., -.

--~:. .- . . . . . . . .--~·, -. -.•· -·-·--· _. _ . ~-- :_· · ·- _,.. __ •- -•·- -·-·····-·-~ ·- ·- --- --· -~-_~·:· -~·- .. ·----- .. ··•··~•-,--a. .._:-·.. ··~-- ...• . . alot of-authorities to the-- effect that, where a decree . - .. . . . .. ~--.,_ - -~ ~ " .submitted that there . .. are does not bear the date on which the judgment was pronounced, the appeal is rendered 'incompetent. He prayed that the same be struck out with costs. It is a correct position that according to the record, the decree bears the date which is different from the one on which the judgment was delivered. Whereas the judgment was pronounced on 22/4/2009, the decree is shown to have been given on 22/4/2002. The relevant part reads as follows: "Given under my hand and the seal of the Court this 2:!7d day of April 2002. " Under O.XX r. 7 of the Civil Procedure Code, [Cap. 33 R.E. 2002], (the CPC), a decree must bear the date on which the judgment was pronounced. That provision states as follows: "The decree shall bear the date of the day on which the judgment was pronounced ancl where the Judge or magistrate has 4 .satisfied himself that the decree has been . drawn up in accordance with the Judgment he .shall sign the decree. // [Emphasis added]. Under Rule 96 (1) (h) of the Rules, it is mandatory that a record of appeal must contain, among other documents, a copy of a decree. When therefore the

decree is defective, the effect is that the record becomes defective. The learned counsel for the parties ar~ not at issue on the variance of the dates of judgment and that of the decree. The only issue is whether or not the defect renders the appeal incompetent. As argued by Mr. Mnzava,. there is an avalanche of authorities to the effect that a defective decree renders the appeal incompetent. In the case of John Naiman Mushi v. Rombo Rural Cooperative Society Limited, Civil Appeal No. 45 of 2006 (unreported) the Court stated as follows: '~ defective decree normally renders the record of appeal defective. See the case of Tanganyika Cheap Store v. National Insurance Corporation Limite4 CAT Civil Appeal No. 37 of 2001 (unreported); Murtaza 5 - ·· -'.Mohamed -·Raza· Visani vs. Mehboob · .·- ._.Jfa~sanai/~'!_~jsf·cAr Civil Appeal No. 31 of •·· 2004·· (unreported) and Laurian · J.R. .. ..... ··__ ::··.· ::-_·:·_-- :___ · Rwebembera Vs. Nendiwe Investment · Limited CAT Civil Appeal No. 29 of 2003 ( unreported}. " In another case, 1st Adili Bankcorp Limited v. Issa Hussein Samma, Civil Appeal No. 78 of 2006 (CA-DSM) (unreported), the decree bore two different dates. The judgment was delivered on 16/4/2002 while the decree showed that it was given on 27/1/2003. On that defect, the Court held as follows: "We are of the settled view that the defective decree renders an appeal incompetent

... In this case., the decree is wrongly dated so it renders the appeal incompetent ... " Apart from the case of Tanganyika Cheap Store (supra) the Court cited also the cases of Permanent Secretary Ministry of Natural Resources and Tourism v. Hotel Travetime Ltd, Civil Appeal No. 138 of 2004 and Olam Uganda Ltd (suing through its Attorney United Youth Shipping Co. Ltd. v. Tanzania Harbours Authority, Civil Appeal No. 57 6 --· -- •-- -•• - •LL _ _ _ _ _ of .2002 (both unreported)~·· In both cases, the Court struck out the appeals · · ... __ ~----- ·-···· -:-on tne· '.basis of the ·position of the law as enunciated above, we: do not, with respect, agree with Mr. Lukwaro that the infraction is curable. He ought to have taken steps to obtain from the trial court, a properly dated decree before the institution of the appeal. Since the decree which is contained in the record of appeal contravenes 0. XX r. 7 of the CPC, then there is no valid decree in the record of appeal. The defect renders the appeal incompetent. As a result, we accordingly hereby strike out the appeal with costs. DATED at DAR ES SALAAM this 23 rd day of February, 2017. M.S.MBAROUK

JUSTICE OF APPEAL A. G. MWARIJA

JUSTICE OF APPEAL S. A. LILA

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

REGISTRAR

COURT OF APPEAL 7