20060605 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., MSOFFE, J.A., And KAJI. J.A.) CIVIL APPEAL NO. 28 OF' 2004 TANZANIA SEWING MACHINES COMPANY LIMITED ..... APPELLANT VERSUS NJAKE ENTERPRISES LIMITED ................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Kimaro, J.) dated the 5 th day of December, 2003 in Commercial Case No. 7 of 2003 RULING OF THE COURT 29 May & 9 June 2006 KAJI. J.A.: The appellant, Tanzania Sewing Machines Company Limited, through the services of Mr. Kassim Nyangarika, learned counsel, brought the present appeal against the decision of the High Court Commercial Division in Commercial Case No. 7 of 2003, before Kimaro, J. in which the respondent Njake Enterprises Limited was declared the lawful owner of the landed property situated on plot No. 11 Block "A" Section F Arusha Municipality under Title No. 1439. 2 When the matter was called on for hearing, Mr. Mkoba, learned counsel for the respondent, raised a preliminary objection consisting of two points, notice of which he had lodged earlier on in line with Rule 100 of the Court of Appeal Rules, 1979. The two points of objection a re: 1. That the record of appeal is defective by containing a decree which offends the mandatory provisions of Order XX Rule 7 of the Civil Procedure Code, 1966, and Rule 89 (1) of the Court of Appeal Rules, 1979. 2. That the appeal contravenes the mandatory provisions of Rule 83 (1) of the Court of Appeal Rules, 1979. Mr. Nyangarika, learned counsel for the appellant, conceded that the decree is invalid for non-compliance with the provisions of Order XX Rule 7 of the Civil Procedure Code, 1966, in that it was signed by the Registrar instead of the judge who passed the decision. However, he pleaded that, in the event the appeal is struck out, he should be granted extension of time in which to re-insti~ute the appeal after obtaining a properly signed decree. This plea was vehemently 3 objected to by Mr. Mkoba, learned counsel for the respondent, who contended that the appellant's counsel should have taken necessary steps to rectify the record long ago before the appeal was called on for hearing, and that there is nothing indicating that he took any step seriously and diligently. He therefore prayed the Court to strike out the appeal with costs. Mr. Mkoba abandoned the second point of objection. Order XX Rules 7 and 8 of the Civil P_rocedure Code, 1966 are very clear on the necessity of a decree being signed by the judge who passed the judgment or his successor. Rules 7 and 8 read: 7. The decree shall bear date the day on which the judgment was pronounced, and when the judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. 8. Where a judge or magistrate has vacated office after pronouncing judgment but without signing the decree, a decree drawn 4 up in accordance with such judgment may be signed by his successor. In the instant case there is no doubt that the decree was not signed by the judge but by the Registrar. It was therefore invalid, and the appellant's learned counsel rightly conceded the error. It has been held by the Court in numerous decisions that a decree which is not signed by a judge renders the appeal incompetent. See for example, the case of Tanganyika Cheap Store v. National Insurance Corporation (T) Limited, Civil Appeal No. 37 of 2001 (unreported). In the instant case where the decree was not signed by the judge, the purported appeal is incompetent. Mr. Nyangarika has pleaded with us that in the event we strike out the appeal we should grant him extension of time in which to re- institute the appeal after obtaining a properly signed decree which has been strongly resisted by the respondent's counsel. Mr. Nyangarika relied on some decisions of the Court in similar cases where parties were granted time in which to re-institute the appeal after obtaining properly signed decrees. Indeed that is what has '• 5 been the position in some cases. But it must be observed that each case has to be considered on its own merit. The necessity of a decree being signed by a judge has been sounded by the Court for some years now. There was a time when the omission appeared to have flourished through non-strict observance by the courts. At that time the Court felt it ~ould be unfair to punish the defaulting parties and moreover High Court judges themselves had consistently omitted to sign the decree and this Court had consistently omitted to notice the defect. The Court made this clear in the case of Robert John Mugo (Administrator of the Estate of the late John Mugo) and Adam Mollel, Civil Appeal No. 2 of 1990 (unreported) where it struck out the appeal due to a decree which was not signed by a judge, and permitted the appellant, if he so desired, to re-institute the appeal within a certain period from the date of obtaining a properly signed decree. The Court said: But bearing in mind the fact that practically all the judges of the High Court have consistently omitted to comply with the requirements of Order 39 Rule 35 (4), and that the Court of Appeal has also consistently until now failed J '- 6 to notice this omission since it was established over ten years ago, thereby encouraging members of the legal profession to believe that all was in order with the decree in appeal, we think justice demands that the appellant be put in a position to re-institute his appeal easily in this Court should he so wish. It was a decree in an appeal but the principle is the same even under Order XX Rule 7. But as observed in the Tanganyika Cheap Store supra, the Mugo case was a wake up call. As time went on, and non-compliance continued, the Court took a hard line and warned the defaulting parties in the following terms: As we stated in Tanganyika Cheap Store, Mugo's case was a wake up call. Yet in a number of cases, non-compliance with the above mandatory requirement has continued over the years. We hope the failure to comply with the requirements will not persist thereby forcing this Court to ·make a final wake up call. We are anxious that the Court will not, in future, be put in a situation of 7 having to re-consider its position regarding invitations to re-institute appeals caught up by the above failure. This was in the case of Managing Director Tanga Cement Company Limited v. (1) Jumanne D. Masangwa (2) Amos A. Mwalwanda, Civil Appeal No. 62 of 2003 (unreported). On 3.6.2005, in the case of NBC Holding Corporation v. (1) Mazige Mauya (2) Mwanahamisi M. Bilali, Civil Appeal No. 36 of 2004 (unreported), this Court advised the defaulting parties in the following terms: With regard to pending appeals not yet scheduled for hearing, parties would be well advised to resort to Rule 92 (3) of the Court of Appeal Rules, 1979 to rectify defects and regularize the same in conformity with the law. We think the appellant should have taken this advice seriously and take the necessary steps to rectify the defect. We note from Mr. Nyangarika's submission that there was a time in 2005 when the appellant applied before the High Court to be supplied with a 8 properly signed decree and was advised to return the record of appeal for necessary action. This was around 17.5.2005. The appellant never complied with the advice and took no further steps to rectify and regularize the same. Mr. Nyangarika attempted to impress upon us that there was a time when he attempted to make a follow up of the matter. But he found himself trapped by having nothing materially to substantiate his allegation. We are satisfied that, had the appellant been diligent enough it would have rectified the offending decree before the appeal was called on for hearing. A decree which has not been signed by a judge is not a decree but merely a purported decree. A record of appeal containing an invalid decree offends the provisions of Rule 89 (1) (h) of the Court of Appeal Rules, 1979 and renders the appeal incompetent. Since the purported appeal is incompetent for the reasons stated, we sustain the first point of the preliminary objection and strike out the purported appeal with costs. l 1111"' ... ' 9 DATED at DAR ES SALAAM this 5th day of June, 2006. E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.