tanesco vs mark valentino shayo 2010 tzhc 187 17 march 2010

IN THE HIGH COURT OF TANZANIA

AT TANGA DC. CIVIL APPEAL NO.7 OF 2009 (Originating from Misc. Civ. Appl, No.5 of 2003 Korogwe DC) TANESCO......................................... ................. APPELLANT

VERSUS MARK VALENTINO SHAYO............................... RESPONDENT Date of last order: 12/11/2009 Date of Judgment: 17/3/2010

JUDGMENT Teemba, J; This appeal arises from a Ruling and Drawn Order of the Principal District Magistrate of Korogwe District Court. The appellant preferred two grounds of appeal namely: 1. That the learned Principal District Magistrate erred in law and in fact in finding that the Application to set aside the exparte judgment of the District Court of Korogwe in civil Case No.20 of 1993 was time barred.

2. That the trial Magistrate erred in law and in fact in dismissing the said Application without taking into consideration facts contained in the Applicant's Affidavit in support of the Application. The appellant is represented by lawyers in its legal department and particularly Mr. Msefya entered appearance. The respondent is unrepresented. He appeared in person and strongly opposed the ground of appeal. On 12th November 2009, the parties appeared before me and by consent they opted to argue the appeal by way of written submissions. I appreciate for their detailed arguments supported by a research of decided cases. Before I consider the grounds of appeal and the detailed submissions filed by the parties, let me point out that I have noted that the date of the Ruling appealed against differs from that of the drawn order. This irregularity is fatal to the appeal. The Ruling was delivered on 13th May 2005 while the drawn order is dated 1st June 2006. There are a number of decisions of the Court of Appeal on this issue. One of them is the case of AMI (TANZANIA) LIMITED VS OTTU on behalf of P.L. ASSENGA & 106 OTHERS, Civil Application No.76 of 2002) (DSM). (unreported.). In this case, the appeal was struck out for being incompetent on the ground that the decree which accompanied the appeal was at variance with the date of judgment on which it was pronounced. Furthermore, the

provisions of Order XX Rule 7 of the Civil Procedure Code, Cap.33 R.E. 2002, require the decree to be signed on the same day the judgment is pronounced. It provides as follows: "Rule 7 - The decree shall bear the date on which the judgment was pronounced, and, when the judge or magistrate has satisfied himselfthat the decree has been drawn up in accordance with the judgment he shall sign the decree." It is clear from the record of this appeal that the dates are at variance. Knowingly that the provisions of Rule 7 are mandatory, this court (Mussa, J.) made some concluding remarks in its Ruling dated 29th July 2009. The court reminded the Applicants/Applicants to take note and therefore works on the disparity as to the date of the Ruling and that in the drawn order. Apart from these words of generosity by my learned brother, the appellants neglected and ignored the advice. The fact that this appeal is accompanied by an invalid drawn order, is fatal to the Appeal. Thus, the appeal is incompetent and the same is hereby struck out with costs. It is so ordered. JkV-A R.A. TEEMBA, J. 30/4/2010 The Judgment delivered in the presence of the Respondent. The appellant is absent. R.A. TEEMBA, J. C— -i*. „ 30/4/2010