20170224 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LUANDA, J,A., MUSSA, l.A .. And MUGASHA, l,A.) CIVIL APPEAL NO. S OF 2010 THE BOARD OF TRUSTEES OF THE PARASTATAL PENSIONS FUND .................................... APPELLANT VERSUS AYOUB CHAMSHAMA .................................... ~·....................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Mwarija, J. ) Dated the 5th day of May, 2008 in Civil Appeal No. 120 of 2007 • ■ ••••••••••••• RULING OF THE COURT lih February & 9th March, 2017 LUANDA, J. A.: This appeal originates from the Court of the Resident Magistrate of Dar Es Salaam siting at Kisutu .. It then went on appeal to the High Court and finally it landed in this Court. . . . But· when the appeal came for hearing, the Court wished to satisfy· it_sel_f whE;:?th_er .th~ ~~ _ qppe;al J>~fore the ·t=ngh Collrt was competent. . W.~ posed that question because the judgment and the decree of the trial court appearing on pages 77-79 were neither dated nor signed. Mr. Daniel Ngudungi, learned counsel who represented the appellant readily supported the Court's observation. But he went further and said the decree and judgment were signed and are in the original record. When he was told that the record of appeal is· bound to be a reflection of the original record, he left to the Court to decide. On the other hand, Mr. Senen Mponda, learned counsel for the respondent said that it is true the record of appeal does not contain a decree and judgment which was signed or dated. He prayed the Court to exercise its powers of revision under S. 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 (the Act) and revise the proceedings. He made no reference to any legal provision. We wish to state at this juncture that this Court being the highest Court of the land has the duty to se~ to it that the laws of land not only . . they are properly interpreted but also correctly applied. As said earlier on ••· - · · · - that, this appeal originates from the Court of the Resident Magistrate of Dar Es Salaam .. Normally, if a party to any civil proceedings is aggrieved, he has the right to appeal to the High Court. In terms of O.XXXIX, Rule l (1) of Civil Procedure Codes, Cap. 33 R.E. 2002 (the CPC) such person is required to file his appeal by way of memorandum of appeal accompanied by a copy of a decree. Sub-rule (1) of Rule 1 of Order 39 of the CPC reads:- 1 (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court/') or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded [Emphasis supplied]. As to what a memorandum of appeal should contain, Sub- Rule 2 of Rule 1 .Qf Jhe.. s·a.m~.. brder provide.an answer. Since that is not relevant here; we 3 need not bother ourselves to discuss it. Our concern Is the decree. In terms of o. XX, Rule 7 (1) of the CPC, a properly drawn decree must bear the date on which the judgment was pronounced and signed. In our case apart from not showing the date on which the judgment was pronounced, the decree is not dated and signed at all. The decree is·· defective. Since the decree is defective, the 1st appeal was incompetent before the High Court. Almost a similar situation occurred in Civil Appeal No. 63 of 2008, between Rutagatina C. L. vs Clavery Mtindo Ngalapa (CAT - unreported). In that case the decree of a lower Court which was the subject of appeal in the High Court was not properly dated. The Court held that the appeal to the High Court was incompetent and so the appeal to the Court had no leg to stand on. Exercising our revisional powers as provided under S. 4 (2) of the Act, we nullify the proceedings before the High Court. Naturally this appeal also is incompetent. . 4. • For the above reason, we hereby strike out this purported appeal with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 24th day of February, 2017 -·· ·-·- ........ . .. .. __ ., _,, __ ,.. B. M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL · S. E. A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. AR APPEAL