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Mwananchi Engineering and Contracting Corporation Vs Khalifa Ta Msangi Enterprises (Civil Appeal 89 of 2009) 2010 TZCA 167 (23 March 2010)

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59 views11 pages

Mwananchi Engineering and Contracting Corporation Vs Khalifa Ta Msangi Enterprises (Civil Appeal 89 of 2009) 2010 TZCA 167 (23 March 2010)

Case law

Uploaded by

Mussa Winstone
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA

(CORAM: KILEO. J.A., MASSATI. J.A.. And ORIYO. 3.A.^

CIVIL APPEAL NO. 89 OF 2009

MWANANCHI ENGINEERING AND


CONTRACTING CORPORATION............................................ APPELLANT
VERSUS
KHALIFA t/a
MSANGI ENTERPRISES....................................... ............. RESPONDENT

(Appeal from the Judgment and Decree of


the High Court of Tanzania at Dodoma)

(Shanqali, J.)

dated the 3rd day of October, 2008


in
Civil Case No. 19 of 2000

ORDER OF THE COURT

22 & 23 March 2010

MASSATI. 3.A.:

When the appeal was called on for hearing, Mr. Kalolo Bundala,

learned counsel for the Appellant rose to seek the Court's directions

as to what should be done regarding compliance with Rules 34 and

106 of the Court of Appeal Rules. He said that since the Court of

Appeal Rules, 2009 came into effect on 1/2/2010, while he had filed

his appeal on 28/9/2009 and although Rule 130, requires that the
new rules be complied with, even to cases that were pending where

the new rules became operational, (unless there are circumstances

that make it impractical to invoke those rules) he was of the view

that to invoke the new rules in the present appeal would delay the

hearing of the appeal and thus make it impracticable. He prayed that

he be allowed to proceed under the old ones under the proviso of

Rule 130 of the Rules.

Mr. Alute Mugwahi, learned counsel for the Respondent was of

the view that the Appellant should, at least, have complied with Rule

34, which he, had himself done by filing his own submission on the

grounds of appeal. But, since Rule 106 involves an exchange of

submissions, it would not be practicable to invoke it in the present

appeal. He submitted that rule 130 could only be called in aid, if

Rule 106 was applied by the Appellant.

After hearing the learned counsel on the question whether or

not to invoke the new 2009 Court of Appeal Rules, the Court suo

motu asked the counsel to address us on their views on the decree


that is now part of the record of appeal. Both conceded that the

decree was defective for non compliance with Order XX r 6 of the

Civil Procedure Act but said that the defect was curable. The only

point of departure between the learned counsel, was that while Mr.

Kalolo Bundala sought for an adjournment in order to file a

supplementary record containing a proper decree; Mr. Mugwahi,

thought that since this was an old matter it was only proper for the

Court to invoke its powers under Rule 2 to proceed with the hearing

of the appeal regard being had to the need to achieve substantive

justice. He was of the view that even if the decree is defective and

the appeal succeeds the Appellant will go back to the High Court to

apply to correct the decree before execution. We think there are

practical implications in Mr. Mugwahi's suggestion. Once we hold

that the decree is defective and we hear the appeal and allow it, we

would have endorsed the defective decree. Once the Court endorses

it it would not be open for the High Court to rectify it before

execution. We think that if it is defective, the decree should be

amended before hearing the appeal.


Rule 96 (1) (h) of the Court of Appeal Rules, 2009 (the Rules)

requires among others that a record of appeal contain

"(h) the decree or order"

from which the appeal is preferred. This rule governs appeals from

the High Court in its original jurisdiction, whose proceedings are

governed by the Civil Procedure Act 1966 (Cap 33 - RE 2002) Order

XX r 6 (1) of the Civil Procedure Act stipulates that:-

"6 (1) The decree shall agree with the


judgment; it shall contain the number of the
suit the names and description of the parties,
and the particulars of the claim, and shall
specify clearly the relief granted or other
determination of the suit."

It has been held that if a decree does not agree with the judgment, it

is defective, although it may be amended and refiled (See LACHANI

& ANOTHER v LA KHAN I (1978) LRT 26). This decision was

approved and followed by this Court in TANZANIA PORTS


AUTHORITY v PEMBE FLOUR MILLS LTD. (Civil Appeal No. 97 of

2007 (CAT - Dar es salaam (Unreported).

In the present appeal, the judgment of the High Court, is

summarised on page 255 of the record:-

"Apart from these two claims under


paragraphs 11 and 12 of the plaint, the
plaintiff has totally and completely proved the
rest of his claims to the satisfaction of this
Court as stated above.

To sum up, and for the avoidance of


doubt, the plaintiff is entitled to the following
prayers and reliefs:-

1. The defendants are ordered to


release and hand over to the
plaintiff the Registration Cards of
the above said motor vehicles
immediately.
2. The defendants are ordered to pay
to the plaintiff a total of TShs.
502.050.000 as shown under
paragraphs 10, 13, 14, 17 and 18 of
the plaint

3. The defendants are ordered to pay


to the plaintiff interest at the court
rate on the decretal sum of TShs.
502.050.000 from the date of this
judgment to the date of full
payment.

4. The defendants are ordered to pay


to the plaintiff interest on the
decretal amount at the commercial
rate from the date the cause of
action arose till the date of this
judgment.

5. The defendants are ordered to pay


to the plaintiff the costs of this suit.
On the other hand, the coercive part of the decree that is to be found

on page 258 of the record, reads:-

"Apart from the two claims under paragraph


11 and 12 of the plaint which are dismissed
the plaintiff has proved the rest of his claims
to the satisfaction of this Court. The suit is
allowed with costs to that extent."

We think that the decree as it is reflects only part of the judgment.

The other part which clearly specifies the reliefs granted is omitted.

This is contrary to Order XX rule 6 (1) of the Civil Procedure Act.

That renders it defective. The appeal cannot be determined without

amending the decree.

For the above reasons we agree with Mr. Kalolo Bundala that in

the circumstances the decree must be amended. For it was held in

LACHANI's case that where there is such a defect the decree must

be amended and refiled.


That leaves us with the issue whether or not the Rules should

be applied in this appeal. Given that the appeal before us was filed

before and pending in this Court at the time the Rules came into

force, Rule 130 is to be resorted to for guidance. The Rule is set out

below:-

"130. In all proceedings pending whether in


the Court or High Court, preparatory or
incidental to, or consequential upon
any proceeding in court at the time of
the coming into force of these rules,
the provisions of these rules shall
thereafter apply, but without prejudice
to the validity of anything previously
done:

Provided that:

(a) if and so far as it is impracticable


in any such proceedings to apply
the provisions of these rules the
practice and procedure previously
obtaining shall be followed;
or
(b) in any case of difficulty or doubt
the Chief Justice may issue
practice notes or directions as to
the procedure to be adopted.

We think that there is no ambiguity in this Rule. It simply state that

unless the Court finds that it is impracticable to proceed under these

rules (in which case it may apply the old rules) the Rules shall apply

to all proceedings pending at the time the Rules came into force.

Whether or not it is "impracticable to apply the provisions of the

Rules, is a question of fact, that will have to be determined from the

facts of each case. Whenever a party intends to invoke this proviso

he also assumes the burden of satisfying the Court of "the

impracticability" of applying the present Rules.

In the present case, counsel were at cross roads. Mr. Bundala,

had tried to show the Court that it would be totally impracticable for

him to comply with Rules 34 and 106 at this stage because he had

already filed the appeal and might involve further delay. But Mr.
Mugwahi, was prepared to accept if the Court would grant the

Appellant time only to comply with Rule 34, but not Rule 106.

Since we have already held above that in the circumstances,

the Appellant has to file a supplementary record anyway, containing

an amended decree before the appeal is fixed for hearing, we do not

see why the Appellant should not comply with Rules 34 which

requires a list of authorities and submissions therein to be filed within

48 hours to the date of hearing; and Rule 106, which requires

submissions to be filed within 60 days after lodging the record of

appeal, and after requesting for additional time to do so under Rule

106 (13). So we do not agree with both learned counsel that this is

not a proper case in which to invoke Rule 130.

For the foregoing reasons, the hearing of this appeal is

adjourned to a date to be fixed by the Registrar; to enable the

Appellant to file an amended decree and comply with Rules 34 and

106 of the Rules. The amended decree must however be filed within

30 days from the date of this Order.


It is so ordered.

DATED at DODOMA this 23rd day of March, 2010.

E.A. KILEO
JUSTICE OF APPEAL

S.A.L. MASSATI
JUSTICE OF APPEAL

K.K. ORIYO
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR

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