20050603 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MUNUO, J.A.• MSOFFE, J.A. And KAJI, J.A.) CIVIL APPEAL NO. 62 OF 2003 THE MANAGING DIRECTOR TANGA CEMENT COMPANY LTD . ........................ ~ ................ APPELLANT VERSUS 1. JUMANNE D. MASANGWA 2. AMOS A. MWALWANDA ............................................. RESPONDENTS (Appeal from the Judgment of the High Court of Tanzania at Tanga) {Longway, J.) ,dated the 5 th day of September, 2003 in Civil Appeal No. 4 of 2001 RULING OF THE COURT MSOFFE, J.A.: At the hearing of the appeal a preliminary objection on the I . competency of the .appeal was taken at the instance· of- the respondents. Notice of the objection was given earlier in line with Rule 100 of the Court of Appeal Rules, 1979. The_obj~ction has three points which read as follows:- (a) The decree of the High Court at page 53a of the Record of Appeal is invalid for its non-compliance with O.XXXIX r. 35 ( 4) of the Civil Procedure Code,. 1966. 2 (b) Record of appeal is not bound in the order specified in Rule 89 of the Tanzania Court of Appeal Rules, 1979. (c) That the Typed Record of Appeal depicts several typing errors and omissions as against the · actual Judgment in Civil Appeal No. 4/2001. The respondents who appeared in person(s) addressed us on the three points of the objection. On the other hand Mr. Akaro, learned advocate for the appellant, readily conceded to the first point. Hence he did not submit anything on the other points. On our part, we propose to go along with Mr. Akaro's approach-in the sense that we will deal with the first point only. In our view, once the first point is determined a discussion of the other points would be merely academic and of no useful purpose. In the first point the respondents urged that the· decree appended to the record is invalid for being signed by the District Registrar instead of the judge who passed it. The respondents cited to us this Court's decision in Tanganyika Cheap Store v. National Insurance Corporation Ltd. - Civil Appeal No. 37 / 2001 (unreported) wherein the appeal was struck out for want of a valid 3 decree. Therefore, the respondents invited us to strike out the appeal with costs. As earlier stated, Mr. Akaro did not resist the above point. He was of the view that the appeal could be struck out for the above reason save that he asked us to allow the appellant to re-institute the appeal after correcting the anomaly. He fortified his request for re- institution of the appeal by citing the Tanganyika Cheap Store case (supra) where the appellant was given time to re-institute the appeal after obtaining a valid decree from the High Court. There is no dispute that the decree, the subject of this appeal, was a decree in appeal. Therefore, under Order XXXIX Rule 35 (4) it was mandatorily required that the decree be signed and dated by the judge who passed it. The decree was passed by Longway, J. It ought to have been "signed and dated by the said judge and not by the District Registrar. The rationale behind the above requirement was stated by this Court in Robert John Mugo (Administrator of the Estates of the late John Mugo Maina vs Adam Mollel - Civil Appeal No. .,. 4 2/1990 (unreported) and· Ndwaty Philemon Ole Saibul vs Solomon Ole Saibul - Civil Appeal No. 68/1998 (unreported). In Mugo's case this Court stated:- "We also agree that a decree in appeal which is not signed by a judge as required by order 39 Rule 35 (4) invalidates the purported decree. This is because such signature by a judge is mandatorily required and it authenticates the decree." (Emphasis supplied) And in Saibul's case, a second appeal originating from a decision of. - the Primary Court, this Court stated:- "The requirement that a decree must be signed by the judge who made the decision is rooted in sound reason, namely, that the judge who decided the case or appeal is in the best position to ensure that the decree has been drawn in accordance with the judgment. (Emphasis supplied). Mr. Akaro has requested that the appellant be permitted to re- institute the appeal as was done in Tanganyika Cheap Store. The respondents did not seriously object to the request. We will accede 5 to the request, and our rationale for so doing will best be captured in the reasoning appearing in Mugo's case thus:- "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 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." We wish to make one additional point here. 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 requirements 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 having to re-consider its 6 position regarding invitations to re-institute appeals caught up by the above failure. For the above reasons, the appeal is incompetent for Want of a valid decree. It is accordingly struck out with costs. The appellant is directed to re-institute the appeal if he so desires, within fourteen days from the date of obtaining the decree from the High Court. We are aware that Longway J. who passed the decree in appeal has since then been transferred from the Tanga sub-registry of the _High - Court. -We are also aware that Order XXXIX makes no provision for signing of a decree in appeal in the event of a transfer. In this regard, we take inspiration from Order XX Rule 8 and direct that the decree may be signed by her successor. DATED at TANGA this 3rd day of June, 2005. E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE ·, OF APPEAL S. N. KAJI JUSTICE OF APPEAL