RAMADHANI, C.J., LUBUVA, J.A. And NSEKELA, J.A.) KAPINGA & COMPANY ADVOCATES... APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED...

Transcription

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, C.J., LUBUVA, J.A. And NSEKELA, J.A.) CIVIL APPEAL NO. 42 OF 2007 KAPINGA & COMPANY ADVOCATES... APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mushi, J.) dated the 23 rd day of August, 2006 in Civil Reference No. 4 of RULING OF THE COURT 16 th June & 12 th August, 2008 NSEKELA, J.A.: On the , this appeal was scheduled for hearing. However on the before the hearing date, counsel for the respondent, the National Bank of Commerce Limited, filed a notice of preliminary objection in terms of Rule 100 of the Court of Appeal Rules, (Court Rules) 1979 to the effect that the record of appeal filed by the appellant on the be struck out on the ground That the ruling and Order appealed against offend against the provisions of Order XX Rule 7 of the Civil Procedure Code, Cap. 33 RE The essence of the preliminary objection as elaborated by Ms Fatma Karume, learned advocate, was to the effect that the record of appeal contained a defective order. She submitted that the order did not bear the date of the judgment when it was pronounced in terms of Order XX Rule 7 of the Civil Procedure Code, Cap 33 RE 2002 (CPC). This defect, she contended, rendered the appeal incompetent and liable to be struck out.

2 2 Mr. M.E.C. Mhango and Prof. G. Mgongo Fimbo learned advocates, appeared on behalf of the appellant, Kapinga & Company Advocates. Mr. Mhango readily conceded that the order in question was defective as pointed out by the learned advocate for the respondent. However, he submitted that, first, that the court officials were responsible for supplying a defective order. The appellant had no hand in it and therefore in the interests of justice, the appellant should not be penalized for the mistake of the court and its officials. Second, the irregularity in the order did not occasion any prejudice or injustice to the appellant. Under the circumstances, the learned advocate concluded that the Court should direct the trial Judge to rectify the error committed by its officials. Soon after hearing the engaging submissions from the learned advocate, the Court made the following Order 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 later. The Registrar to fix the appeal in the next sessions. Cost of this hearing to follow the event. It is so ordered. On the , the learned advocates for the appellants filed a Supplementary Record of Appeal under Rule 92 (3) of the Court Rules which contained a proper Order of the High Court dated On the when the appeal was called again for hearing, the Court sought clarification from the learned advocates for the appellants, whether or not the status of the appeal had changed pursuant to the Court Order dated the Mr. Mhango, learned advocate, answered in the affirmative. He submitted that the Supplementary Record of Appeal was filed in Court pursuant to the Court Order and it contained a properly dated order. Prof. G. Mgongo Fimbo, added that since the Court did not make an order for the amendment of the impugned order under Rule 104 of the Court Rules, the appellants were now seeking directions under Rule 3(2)(a) of the Court Rules on the modalities for filing in Court the corrected order in order to implement the order of the Court. In her submission, Ms Fatma Karume submitted that a supplementary record of appeal cannot correct a defect under Rule 89 of the Court Rules. She was of the view that it was not possible to correct an incompetent record of appeal. Our Order dated the had two limbs to it, first, to correct the irregularity in the extracted order with respect to the date, and second,

3 3 to effect that correction within fourteen days of the date of the Order. The issue now before us is, could the irregularity in the extracted order, be corrected by filing a supplementary record of appeal? This takes us to the status of Civil Appeal No. 42 of 2007 when we made the Order on the It will be recalled that on the , the respondent filed a Notice of Preliminary Objection to the effect that the date of the order and that of the ruling when it was pronounced were different, thus contravening Order XX Rule 7 of the CPC. In the case of Mkama Pastory v Tanzania Revenue Authority, Civil Appeal No. 95 of 2006 (unreported), the Court posed the following question The question now is, what would be the legal status of an appeal which is accompanied by an extracted order which does not bear the date when the ruling was pronounced? This was the same problem facing us in the respondent s preliminary objection. The Court considered Order XX Rule 7 of the CPC; a ruling of this Court in Jovin Mtagwaba and 85 Others v Geita Gold Mining Limited (unreported); a reknowned treatise, Mulla on the Code of Civil Procedure (15 th edition) at page 1524 and stated as under The date of a decree, and by extension of an order, is important not only in reckoning time for appeal but also for purposes of period of limitation in the case of an application to set aside an ex parte decree or order. Furthermore the right to execute a decree or order accrues from the date it is pronounced, not on the day it is signed. We are, therefore, firmly of the view that an order which does not bear the date when the judgment or ruling was pronounced is not valid. It follows that an appeal to this Court which does not contain a correctly dated decree or order will not have complied with the requirements of Rule 89(1)(h) of the Court Rules, We do not consider that the omission is a mere irregularity but it goes to the root of the appeal. This decision was cited with approval in subsequent decisions of this Court The Hon. Attorney-General v Rev. Christopher Mtikila, Civil Appeal No. 20 of 2007 (unreported); Kashemeza Phares Kabuye v Choya Anatoly Kasazi, Civil Appeal No. 110 of 2007 (unreported), (i) Uniafrico Limited (ii) Karim Kanji (iii) Minez Kanji v Exim Bank (T) Limited (unreported. It is evident from these decisions that if an appeal does not bear the date of the day on which the judgment/ruling was pronounced, such an irregularity is fundamental, it goes to the root of the matter, and renders the appeal incompetent. Therefore, as from the

4 , when we made the order to correct the defective order, there was no appeal before us, hence the second limb of our order, that the appellant should correct the irregularity within fourteen days. Purporting to comply with our order dated , the appellant on filed a Supplementary Record of Appeal. It contained a proper order of the High Court which complied with Order XX Rule 7 of the CPC. In legal parlance, a supplementary record of appeal supplements the original record of appeal to include additional or further documents which are in the opinion of an appellant or respondent, required for a proper determination of an appeal. This is evident from Rule 92(1) and (3) of the Court Rules. (see: Kiboro v Posts & Telecommunications Corporation [1974] EA 155; Haruna Mpangaos and 902 Others v Tanzania Portland Cement Company Limited, Civil Appeal No. 10 of 2007 (unreported). The record of appeal should contain, where applicable, documents enumerated in Rule 89(1) of the Court Rules which include the decree or order. According to Kiboro s case supra, a supplementary record of appeal cannot contain one of the documents in Rule 89(1). In the instant case, the supplementary record of appeal contained, inter alia, the impugned order on page 245. In the cases of Fortunatus Masha v William Shija and Another (1997) TLR 41 and National Bank of Commerce v Methusela Magongo, (1996) TLR 394, the respective records of appeal did not incorporate the orders/decrees of the High Court being appealed against. The Court struck out the appeals as incompetent for not containing a copy of the decree/order being appealed against. Since the order herein was defective, the appeal before the Court was therefore incompetent. Admittedly, on the we did not proceed on to strike out the appeal, but the fact of the matter is that the appeal remained incompetent until the defect had been corrected. The position of the law as it now stands is that a defective order or decree under Rule 89 of the Court Rules renders an appeal incompetent. We have already referred to decisions of this Court where the defect related to the date in the order or decree. In earlier decisions of the Court, the same fate had met appeals where appellants did not extract orders/decrees. For instance in the case of Fortunatus Masha v William Shija and Another (1997) TLR 41 the Court stated as follows at page 44 The law as it now stands is that failure to extract the decree or order in terms of Rule 89(1)(h) and 2(v) of the Court of Appeal Rules renders the appeal incompetent, see for instance The Commissioner of Transport v 4

5 5 The Attorney General of Uganda and Another (1959) EA 329; and Juma Mtale v K.G Karmali (1983) TLR 50. The finding that an appeal is incompetent has constantly resulted in striking out such appeal, see for instance The National Bank of Commerce v Methusela Magongo (1996) TLR 394. There is no room for Mr. Makani s view that non-extraction of the decree or order is a mere procedural or administrative irregularity. In Arusha International Conference Centre v Damas Augustine Ndemasi Kavishe, Civil Appeal No. 34 of 1988 (unreported) it was held that such non-compliance was fundamental and went to the root of the matter. This decision was cited with approval in the subsequent case of Dr. Masumbuko R.M. Lamwai v (i) Venance Francis Ngula (ii) The Attorney-General, Civil Appeal No. 56 of 1997 (unreported). The point we would like to underscore is that there was no order in terms of Rule 89(1)(h) of the Court Rules thus rendering the appeal incompetent. Now, in order to correct the defective order, a fresh record of appeal containing a proper order had to be filed according to law. This has been the position of the law since the decision in the case of Robert John Mugo v Adam Mollel, Civil Appeal No. 15 of 1991 (unreported), followed, inter alia, in Haruna Mpangaos and 902 Others v Tanzania Portland Cement Company Limited, Civil Appeal No. 10 of 2007 (unreported). The appellants as explained in Haruna s case, could not correct the defective order by filing a supplementary record of appeal. The original record of appeal is still intact and contains a defective order. We are therefore constrained to state that the position existing on the has not changed at all. There is still no competent appeal before us. We accordingly strike out the appeal with costs. DATED at DAR ES SALAAM this 7 th day of August, A. S. L. RAMADHANI CHIEF JUSTICE D. Z. LUBUVA JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL

6 6 I certify that this is a true copy of the original AG. DEPUTY REGISTRAR P.B. Khaday