20170224 TZCA Dar es Salaam

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J IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CORAM: LUANDA, J.A., MUSSA, J.A., And MUGASMA. J,A,) - CIVIL A·PPEA'L NO ..5 OF ·2010 THE' BOARD OF TRUSTE~S__ _. __ _ _ __ _ . _ ·: _ . :· _-~ ._._ .. - . ,. 0 F THE PARASTATAL PENSIONS FUND:.-~:~:~:.~.~.-.-...•.•••...••. ; .. ~ .•.• ~; •• -A.PP'E~IA-Nl· · . - . :· :...'.:.' ...... _; . . ., .

VERSUS AYOUB CHAMSHAMA ....•. ~ ..•....•........... ~ ....•.....• ~ .. ~ ••.•••..•.•.... ;. RESPON-Ot::Nt ····•··-········. --··. (Appeal fro'm the Judgment and Decree of the High Cotnt of Tanzania at Dar es Salaam) (Mwarija. J. ) Dated the 5 th day of~a,y, -2008 · in _Civil Appeal No. 120 of 2007 1ih 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 qppeal came for hearing, the Court -,V:-J:ishe~---tosatisfy st . . . . . ., . -• . . . ; ' . " . . . . . - ... _, :itself 1:w-b.eth.~r::the,:-1.-:· -appeal '. b~fore the High Court was· competent. · We . ·.,' > ·...,.: :..... :.....; , ·;;:.)1?:~J;;t-4~1::.~?~~ix:f~~:~i:;~ii~t;;,;~·:::1.:'..,, ... :_ ;=:. -_. · ~ ~ .. · , ..: .. ·::,·- . - - _-· _ -. '-:,~~' _: _,:~-'.;:,.~; ,: ,:t~; ~~,~~:.:~_<:">;,·~:;:7. •: _1_·~;,-- ·._:. :w•: .~•- ....":':.:'."' ....,·: · •·' . ~_. ·.~- _1_:~. : -~·-=~----~~:~~-:__i·::i:';::•~:.>·~-:-~~, >. :•• ·.·.:·· --~-,:-: .· •, t',,:: '' 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: -W:heh' · · · Ile was told that the record of ·appeal is bound to b~ a reflection of the - _· . original record, he left to the Court to decide, On the other hand, Mr. Senen Mponcla, learned counsel -for :the respondent said that it is true. the record of appeal does not contain: El' 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 see to it that the- -laws __pf~[gnd ndf only'":-.~-- · they are properly interpreted b4!t also correctly applied. ·As·.-saic:f earlie/::ori·. - : ihat, this appeal originates from the Court of the Resident Magistrate of Dar Es Salaam, - Normally, -if a party ta. any civil proceedings is aggrieved,·_ · ~e has the right to appeal to the High Court. _In terms ofO.XXXIX, Rule 1 (1) of Civii Procedure Codes, Cap. 33 R:E._ 2'002 (tbe CPC) such-pe·r_soh is_- .. ~. • required to file his appeal by way of memorandum of appeal accompanied :.. -.· by a copy of ·a decree .. Sub-rule (1) of Rule T of Order 39 ofth_e cpc reads:- 1 (1) Eve/y appeal

shall be preferred ih 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 lithe 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 · ofJhe saroe.. Order provide.an answer. · Since,-thatis not.relevant,faer:e,,we- - ,-,-- ·- need not bother ourselves to dlscuss it.· Our concern is the decree. In terms of .o. xx, Rule 7 (i) of the CPC:,= a prop~riy- drawn decree must bear · the date on which the judgrnent was pronounced and signed . .. .. . ·. ~ ... . .... .. ... In our case apart from not shbwihgthe-dare·dn-Whichthe judgment--- : .... · ··::. _ .... _ .·:..:: ... ·, - was pronounced, the decree is not dated· and sign·ed at alL_ The decteets ·· defective. Since the decree is defective,. the l st-·a-ppeal was incompetent·_. before the High Court. Almost a sirnilar ~ituation_ o_ccurre_d in Civil_ Appeal N.o. 63 of 2008, be~een Rutag~t•n~ .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. . . . .: ... :,.... .·. ·•- :, ·····;,- :.- . . . -- ; ..-. •·c,_7:~--:-.~i:-:~-.;_,_ .._._. . ·. . ? . . . ' ::.· ·:·•~ "'?~ ·:' ~- .- For the above rea$on, 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 ofP:,ebruar.y, 2017 · Ef M. LUANDA

JUSTICE OF APPEAL . K. M. MUSSA , )USTICE OF APPEAL S. E. A. MUGASHA . JUSTICE OF APPEAL · ·· I certify that this is a true copy of the ortginal. ,-p;;~~;~~:-~·- ' {iti -.,,,,.,.~ ,' /

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