20080516 TZCA Dar es Salaam

.. ., . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, J.A., MROSO,.J.A. And MUNUO, l.A.) CIVIL APPEAL NO. 152 OF 2004 VICTOR FRANK ISHEBABI (a person of weak mind by his next friend) MAHAMOUD ISHEBABI .................. . =• • • • • • • • • • • • • • • • • • • • • • • • • APPELLANT VERSUS 1. LEISURE TOURS AND HOLIDAYS LTD. 2. SAID MOHAMED 3. NATIONAL INSURANCE CORPORATION LTD. 4. PRESIDENTIAL PARASTATAL SECTOR RESPONDENTS . REFORM COMMISSION 5. RICHARD TARIMO ·6. THE INSPECTOR GENERAL OF POLICE 7. THE ATTORNEY GENERAL (Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam) (Massati, J.) dated the 12th day of March, 2004 in Civil Case No. 183 of 2003 RULING OF THE COURT 5 May & 3 June, 2008 MROSO, l.A.: This was an appeal by one Victor Frank Ishebabi, said to be "a person of weak mind'~ by his next friend, Mahamoud Ishebabi, against seven respondents. On the hearing date Dr. Mvungi appeared for the appellant. Mr. Buberwa and Mr. Msemwa, learned <.• counsel, appeared respectively for the first and second respondents • > and for the third and fourth respondents in _that order. The fifth respondent was not served with the notice of hearing and, ther·efore, did not appe~r. Ms Otaru, learned State Attorney[ appeared for the Inspector General of Police and the Attorney General who are the sixth and seventh respondents respectively. Mr. Buberwa, Mr. Msemwa and Ms Otaru each had filed a Notice of Preliminary Objection und~r Rule 100 of the Court of Appeal Rules, 1979 on behalf of their· respective clients. The substance of objection in all the three notices of objection is that the appeal is incompetent because the record of appeal does not contain a valid copy of the decree. The Court, therefore, could not proceed with the hearing of the appeal and had to deal with the preliminary objections first. With the consent of his colleagues, Mr. Buberwa addressed the Court on behalf of the other counsel on the ground of objection. He explained that the copy of the decree in the record of appeal was incurably defective in that it had a date which differed 3 ,. from the date of· the judgment against which it was intended to appeal, and- besides, it was riot signed by the judge. On 1th March, 2004 the High Court, Massati, J. ·(as he ·then was), read out a ruling in which he upheld a preliminary objection to the effect that a suit which was before him was time-barred and, consequently dismissed it. The decree which was s~bsequently drawn was however dated 5th August, 2004, which was.not the date of the judgment and it was signed by a District Registrar and not by the judge. That was -contrary to the requirements of Order 20 Rule 7 of the Civil Procedure Code, 1966 which reads as und~r: "The decree shall bear the date of 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." In view of the defective decree, Mr. Buberwa submitted that the record of appeal which contained an invalid decree did not satisfy the mandatory requirements of Rule 89(1)(h) of the Court of Appeal 4 Rules, 1979 and the appeal was therefore incompetent and should be, 0 struck out with costs. He cited in support of that submission the cases of Olam Uganda Limited s~ing through its. Attorney. - United Youth Shipping Company Limited v Tanzania Harbours Authority, Civil Appeal No. 57 of 2002 (unreported), and also Dhow Merchantile (EA) Limited and Two Others v Registrar of .Companies and 4 Others, Civil Appeal No. 86 of 2004 (unreported). He maintained that the defects go to the root of the appeal and are incurable. ·. Dr. Mvungi concedeq that the decree in the record of appeal was defective but argued that tlie defects were a technicality and that the· Court should take cognizance of Article 107A(2)(e) of the Constitution of the United Republic of Tanzania which enjoins the courts to administer substantive justice and not to be encumbered unduly by technicalities. For that reason, he submitted that the appeal was competent and the defective decree could be corrected. He referred to a recent order of this Court - Kapinga and Company Advocates v National Bank of Commerce Limited, Civil Appeal No. 42 of 2007. He said a similarly irregular decree was - . . .- -. . . . . - .. 5 ,. in issue and the Court did not strike out the appeal. Dr. Mvungi urged, therefore, that the appeal was not incompetent and the appellant be given time to correct the defective decree. The legal status of a decree which does not conform with the provisions of Order 20 rule 7 of the Civil Procedure Code, 1966 has been discussed in many decisions of this Court, including those which the_ respondents cited in these proceedings. For example, in Olam Uganda Limited suing through (sic) its Attorney United Youth Shipping Company Limited v Tanzania Harbours Authority, Civil Appeal No. 57 of 2002 ( unreported) an order dismissing a suit was construed to· be a decree. The drawn order which formed part of a record of appeal was signed by a Deputy Registrar. This Court, after referring to several· of its previous decisions in which the appeals were held to be incompetent and, consequently, struck out because each of the records of appeal contained a decree which had been signed by a registrar instead of a judge, also struck out the appeal but, -contrary to those other decisions, declined to grant leave to the appellant to re-institute the appeal. The Court said - "It is true, as argued by Mr. Magafu, that in the cases ne referred to us, the Court had struck out the appeals and proceeded_ to direct the appellants to re-institute. their appeals within a given time. But we can now safely say that that is all history." We said in that decision that the case of Tanganyika Cheap Store v National Insurance Corporation (T) Limited, Civil Appeal No. 37 of 2001 had warned that the earlier decisions giving leave to appellants to re-institute their appeals were "wake-up- calls". By that phrase the Court was saying. that no further indulgence would be granted in the future for 'similar errors. The Tanganyika Cheap Store decision was given on 27th January, 2005 and the Olam Uganda decision on 11 th June, 2007. Notwithstanding the categorical pronouncement from the Court in Olam Uganda that it was no longer current to grant leave to an appellant to refile an appeal which is struck out because of a defective decree, some subsequent decisions from the Court have· continued to direct appellants to re-institute such appeals. In Haruna Mpangos and 902 Others v Tanzania Portland .. - : - .. . . :~-:.. . . . ;: . ~-- • = 7 Cement Company Limited, Civil Appeal No. 10 of 2007, the Court . . . on 10th March, 2008 when dealing with an appeal which, when it was · filed, contained a decree which was wrongly dated, allowed the I appellants "to re-institute the appeal" if they so wished, without payment of fresh fees. The Court said it was following its· previous decision in Robert John Mugo (as Administrator of the Estate of Late John Mugo Maina) v Adam Mollel, Civil Appeal No. 2 of 2990. In Robert John Mugo this Court was·. faced with a decree in appeal which did not conform with Order 39 Rule 35( 4) of the Civil Procedure Code, 1966. The decree had not been signed by a judge. The Court held that the decree was invalid and struck out the appeal but made the following observation and direction:- "But bearing in mind the fact that practically all judges of the High Court have consistently omitted to comply with the requirements of Order 39 Rule 35 (4) (of the Civil Procedure Code, 1966) and that the Court of Appeal has also consistently until now failed to notice this omission since it was established over ten .- 8 years ago, thereby encouraging members of the legal profession to believe that all was in order with the decree in appeal, we think that justice demands that the appellants be .put in a position to re-institute the appeal easily in this Court, should he so wish." It is apparent that since Robert John. Mugo three different situations are discernible. One situation relates to the decisions which are typified by Robert John Mugo, that if the decree in the record of appeal is defective because it was not signed by a judge, the appeal is incompetent and, consequently,. struck out. However, depending on certain peculiar circumstances,· the Court directs or · grants leave to the appellant to re-institute the appeal under given conditions. Haruna Mpangos is a recent example of that category of cases. The second situation comprises that category of appeals in which this Court said that once it is found that a record of appeal contains a defective decree (because it was not signed by the judge or the magistrate who decided the case, or it bears the wrong date, (or no date at all), the appeal is incompetent and, consequently . ·... - .- . 9 struck out. It is no longer appropriate ·to grant leave or to direct the appellant to re-institute the appeal under given ·conditions specified by the Court. Examples of such decisions are the Tanganyika Cheap Store case and Tanzania Sewing Machines Company Limited v Njake Enterprises Limited, Civil Appeal No. 28 of 2004. In the last cited case in which the decision was given on 5th June, 2006 the Court said:- "A decree which has not been signed by a judge is not a decree but merely a purported decree ... " and that an appeal based on such a decree is incompetent. The appeal was struck out and no direction or leave to re-institute the appeal was given. Olam Uganda Limited typifies this category. l The third situation comprises the category of decisions of this Court in which it was held inter alia that if a record of appeal contains a defective decree which is not signed by the judge or magistrate who passed judgment or is undated or wrongly dated, the appeal is not incompetent and, therefore, not struck out and that the appellant can be allowed time to rectify the defect in the decree and the same appeal is subsequently set down for hearing normally .. · In Anjum Vicar Saleem Abdi v Naseem Akhtar Saleem· Zangie, Civil Appeal No. 73 of 2003, a decision given on lih November, 2005, the Court upheld a Preliminary Objection to a· decree which was found to be invalid but proceeded to say - "As in previous instances we do not strike out the appeal but allow the appellant to amend the record of appeal. . The appellant is given :30-days-to-dn-so-·from-the-delivery-of-this ruling". The approach in Anjum Vicar· Saleem was apparently adopted in a recent order of the Court (dated 24th April, 2008) in Kapinga and J Company Advocates v National Bank of Commerce, Civil Appeal No. 42 of 2007. The Order reads as follows - "The appellants to correct the irregularity in.· the extracted order with respect to the date and they are given 14 days to do so from today. Reasons for the order to be given 11 later. The Registrar to fix the appeal in the next Sessions." We ~ave highlighted the three situ~tions to acknowledge that there are apparent inconsi_stencies; but notwithstanding that appearance which may have been occasioned· by certain peculiar and extenuating circumstances, the predominant view of this Court is that a defective decree under Order 20 Rule 7 or Order 39 Rule 35( 4) in a record of appeal renders the appeal incompetent and such appeal is struck out.· We think that once an appeal is struck out, normally that is the end of the proceedings . relating to· it and it will not be appropriate to make orders or directions relating to the struck out appeal in that same record. It will be up to the appellant thereafter to take what legal course they consider is permissible, whether to re- institute the appeal or abandon the idea. Following from that position it will not be correct to argue that the defect is a mere technicality which could be rectified, and Article 107A(2)(e) of the Constitution to which Dr. Mvungi referred the Court does not apply to a case like the one now before it. 12- We uphold the preliminary objections and strike out the appeal .. with costs to all the respondents,. save the fifth respondent who did not appear and was not party to the preliminary objections. DATED AT DAR ES SALAAM this 16th day of May, ·2008. D.Z. LUBUVA JUSTICE OF APPEAL . J. A. MROSO JUSTICE OF APPEAL -E. N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.A~RA) REGISTRAR