20090220 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., MSOFFE, J.A. And OTHMAN, l.A.) CIVIL APPEAL NO. 98 OF 2003 SILVESTER LWEGIRA BANDIO ....................................... 1 ST APPELLANT HILDA KARABARUNGA BANDIO ...... ............................. .. 2No APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED ........................ RESPONDENT (Appeal from the amended order and ruling of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Kimaro, J.) dated the 21 st day of November, 2003 in Commercial Case No. 171 of 2002 RULING OF THE COURT 17 & 25 February, 2009 MUNUO, J.A.: In this appeal, the co-appellants, through the services of Mr. Rweyemamu, learned advocate, intended to challenge the decision of Kimaro, J. as she then was, which decision she delivered on the 21 st November, 2003 in Commercial Case ·No .. 171 of 2002 in the Commercial Division of the High Court of Tanzania at Dar es Salaam. Meanwhile, Ms Fatma Karume, learned advocate for the respondent 2 bank, the National Bank of Commerce (NBC) filed a preliminary objection under Rule 100 of the Tanzania Court of Appeal Rules, Cap 141 Subsidiary R.E. 2002. In her grounds of preliminary objection, counsel for the respondent bank contended that the appeal is incompetent because it is founded on a preliminary order and thence in contravention of the mandatory provisions of Act No. 25 of 2005 which amended Section 5 (2) (d) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. The said provisions bar appeals from interlocutory orders and rulings unless they have the effect of finally determining the matter. She also complained that this appeal is an abuse of the Court process because Civil Appeal No. 106/2003 subst~ntially deals \t'Jith the s~me appeal so there was no need to institute this appeal. Furthermore, counsel for the respondent contended that the Amended Drawn Order at Pages 128-129 of the record of appeal is wrongly dated, and wrongly signed by the Deputy Registrar instead of being signed by the learned judge. Hence, all in all, the· appeal is incompetent and it should be struck out, counsel for the respondent urged ... . -. 3 Mr. Rweyemamu, learned advocate for the appellants, conceded that the appeal is incompetent because the Drawn Order is wrongly dated, and also not signed by the trial judge. The defects, he contended, should be blamed on the court which issued the drawn order. For that reason, either party should. bear their costs, he maintained. While we agree that the defective decree was erroneously issued by the High Court, the appellant's counsel should have expeditiously returned the defective Drawn Order, and obtained a correct Drawn Order. This, he failed to do. As it is, the Amended Drawn Order has remained in the record from December, 2003 to date despite the numerous decisions of the Court striking out incompetent appeals due to _defective decrees and drawri orders. Due to lack of a proper drawn order, the present appeal is . incompetent for non compliance with Rules 89 (1) (h) and 89 (2) (v) of the Court of Appeal. Rules, 1979 Cap 141 Subsidiary R.E. 2002. In the case qf Dr. Fortunatus Masha versus Dr. William Shija and - .. 4 another Civil Appeal No. 43 of 1996, (unreported} the Court observed that lack of a proper decree or drawn order renders the appeal incompetent: ......... an incompetent appeal is one which in law did not come into existence although efforts were made to try to bring it into existence. In such circumstance/ therefore/ one cannot properly talk of there being an insufficient or incomplete record which one can improve upon by filing a supplementary record, because in law no appeal came into existence; there was only a purported appeal, if you wish. We are of the settled mind that the appellant had an obligation . to file a complete record of- appeal. -There have been many decisions on this, among others - Tanzania - Air Services· Ltd versus Registered Trustees of the Precious Blood · Fathers, Civil Appeal No. 90 of 2008, (CA} (unreported}; Dominic Mbalamula and 23 Others versus Tanzania Breweries Ltd. Civil Appeal No. 62 of 2004 (CA} (unreported}; Kiboro versus Ports· and Telecommunications (1974} E.A. 155, and the 5 National Bank of Commerce versus Methusela Magongo (1996) TLR 394. In view of the above we. find no justification to waive costs. We accordingly strike out the incompetent appeal with costs. DATED at DAR ES SALAAM this 20th day of February, 2009. E. N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL M.C.OTHMAN JUSTICE OF APPEAL I certify that this is a true copy of the original. (P. B. K DEPUTY RE