IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MFALILA, J.A., SAMATTA, J.A., And LUGAKINGIRA, J.A.,)

CIVIL APPEAL NO. 68 OF 1998

BETWEEN
NDWATY PHILEMON OLE SAIBULL ............. APPELLANT
AND
SOLOMON OLE SAIBULL .................... RESPONDENT

(Appeal from part of the judgement of

the High Court of Tanzania at Arusha)

(Mapigano, J.)
dated 5th July, 1996
in
(PC) Civil Appeal No. 32 of 1990

RULING OF THE COURT

MFALILA, J.A.:

When this appeal was called for hearing, Mr. Mwaluko learned

counsel for the respondent, rose to argue a preliminary objection

against the appeal, an objection he had earlier filed under the

provisions of Rule 100 of the Rules of this Court. Mr. Mwaluko

submitted that this appeal is incompetent on two grounds. First,

he said that the appeal is incompetent for failure to extract the

decree and annex it to the record of appeal as required by

Rule 89 (2). He added that the document at pages l63-'l6i+ of the

record of appeal cannot be regarded as a decree because it was not

signed by the judge who decided the appeal as required by Order 39

Rule 35 (^) of the Civil Procedure Code. The document which was

filed purporting to be a decree was not a decree because it was

signed by the District Registrar who had no competence to sign the

same. Filing an incompetent decree, is the same as failing to extract

and file a decree and this Mr. Mwaluko submitted rendered the appeal

incompetent. Secondly, Mr. Mwaluko submitted that this appeal was

lodged in contravention of Section 5 ("1) (c) of the Appellate

Jurisdiction Act 1979 as no leave to appeal was sought and obtained.

Therefore he concluded the purported appeal is incompetent and should

be struck out.

In reply, Mr. D*Souza learned counsel for the appellant, said

that the provisions of 0, 39 would not apply to third appeals such

as the present because that order applies only to appeals from

original decrees. He added that since no decrees are issued by

Primary Courts and District Courts on appeal from Primary Courts,

similarly no decree is required to be issued by the High Court after

hearing an appeal originating from a Primary Court. The only thing

which is required is a certificate under section 32 (2) of the

Magistrates Courts Act 198^.

On ground 2, Mr. D1 Souza submitted that there is no need to

apply for leave where as in this case there is a requirement to

apply for a certificate on a point of law and the same has been

issued. This certificate in Mr. D'Souza's view includes leave.

We shall first deal with the second ground of the preliminary

objection. In this connection, we wish to reiterate what this Court

stated in a similar case, Sambeke Notira v. Ngitiri Meng1oru Civil

Appeal No. 9 of 1989. In that case, somewhat a reverse of the present

one, counsel for the respondent had taken a preliminary objection and

sought to have the appeal struck out as being incompetent because no

point of law had been certified for consideration by this Court in

terms of section 5 (2) (c) of the Appellate Jurisdiction Act. The

record showed that the High Court acting under section 11 had granted

leave to appeal to this Court. Counsel for the respondent submitted

that such leave was not sufficient to confer jurisdiction on this

Court on such a matter. He referred to Rule 89 (2) which specifically

provides that in the case of a third appeal, the record of appeal

shall contain inter alia, the certificate of the High Court that a

point of law is involved.

 In reply, counsel for the appellant submitted in effect that

the leave to appeal as granted by the High Court was sufficient to

confer jurisdiction on this Court, and that it was not necessary to

apply specifically for a certificate that a point of law was

involved and further that when in this case the High Court granted

leave to appeal, it also amounted to granting the certificate because,

he added, there is no special format for such certificate. This court

held as follows:

The present proceedings arise under Head (c)

of Part III of the Magistrates Courts Act
198^. The provision makes it clear that
despite the general permission granted under
sub-section (1) (c) to appeal with leave, in
this particular type of cases leave granted
under that sub-section would not do, appeal
shall lie only upon a certificate that a
point of law is involved.

It is our firm view that a party seeking a

certificate that a point of law is involved
must apply specifically for it under
section 5 (2) (c) of the Act. We do not
think that it is necessary for such a party
to make two applications, one for leave to
appeal and then another one for a certifi­
cate. Only one application under section
5 (2) (c) suffices, and if the High Court
certifies a point of law for consideration
by the Court of Appeal, that in itself
necessarily means that the High Court
agrees that the matter should be tested
on appeal to the Court of Appeal. It
hardly needs emphasizing that when an
application is brought under section (2)
(c), the High Court should set out clearly
that a point or points of law which it
certifies for the opinion of the Court of
Appeal, and the Court of Appeal should

_A
 k -

not be made to guess what .'that point or

points are.

As we stated earlier, the present case is the^-reverse of the

Sambeke case in that in the present case a certificate that a point

of law was involved was issued but not leave to appeal. In the

above case, this Court stated that it is;not necessary to make two

applications in a situation where a certificate of law is required,

A
because once a certificate has been issued, leave to appeal is not

necessary as it is deemed to be included,in the certificate. The

reverse of course is not true, namely, that leave'to appeal does

not include a certificate that a point of lav; is involved for

consideration by this Court. Accordingly, we agree with Mr. J'TSouza

. .1 rr?.
and dismiss ground 2 of the preliminary objection.

We now turn to ground 1 of the preliminary objection.

Fortunately, there is also a decision of this Court on the point.

This was in the case of Robert John Mugo v. Adam Mollel Civil Appeal

No. 2/90. In that case, a preliminary objection was raised at the

first hearing of the appeal, on the ground that the appeal was

incompetent as it lacked the decree against which the appeal was

instituted as required under Rule 89 (2). In support of this point,

counsel for the respondent, drew the attention of the Court to the

record of appeal which contained a document which according to him

could not be construed to be a decree as it was not signed as

’.. ('t’- 4 • * I - . . ’'
required by 0 . 39 r. 35 (^) by the judge who adjudicated the case

in the High Court where it came as a first appeal from a subordinate

court. Counsel contended further that since the decree on appeal

was signed by the District Registrar and not by the judge concerned,

and since the District Registrar has no power to sign such decree on

appeal, either under 0 . or any other law, the purported decree

was invalid and consequently the appeal must be struck out under

Rule 82 on the ground that some essential step in the proceedings

o « e o' 3
had not been taken. In support of this proposition, he cited the

case of Arusha International Conference Centre v. Damas Augustine

Kavishe Civil Appeal No. jM- of 1988. This Court held:

Although the case cited by Mr, Lobulu concerned

failure to extract a decree of the court below,
we agree that in essence there is no difference
between extracting an invalid decree and failure
to extract a valid decree. We also agree that a
decree on appeal which is not signed by a judge
as required by 0. 39 r. 35 (*0 invalidates the
purported decree. This is because such signature
by a judge is mandatorily required and it
authenticates the decree. We do not however
think that every omission or irregularity would
necessarily invalidate the decree. Therefore
for the reasons stated above we are bound to
sustain the preliminary objection made by
counsel for the respondent.

One can therefore apply the above rule and say with Mr. Mwaluko

that since also the decree in the present case was not signed by the

judge who heard the appeal, the decree lodged with the record of appeal

is invalid and therefore the appeal should be struck out. Such a result

would have been inevitable but for one difficulty, that the present

appeal is not from an original decree as 0. 39 states. It was a

second appeal in the High Court, it having originated from the Primary

Court. 0. 39 is clearly headed !,Appeals from original decrees”. We

therefore agree with Mr. D1 Souza that the order and decision in the

Kavishe case quoted above would not be applicable to a case such as

the present. There is also another objection to the use of 0. 39

and this is that apart from the limited exception created by section

35 of the Magistrates Courts Act, which allows the use of the Civil

Procedure Code to strike out appeals from Primary Courts, that Code

is otherwise not applicable when the High Court is dealing with appeals
from Primary Courts, In Julius Petro v. Cosmas Raphael/1983/TLR 346,

the High Court of Tanzania stated:

The Civil Procedure Code 1966 does not apply

to the High Court when hearing appeals
originating from Primary Courts. It applies
in the High Court, Resident Magistrate's
Court and District Courts when they exercise
original civil jurisdiction and also applies
when the High Court hears appeals originating
from District Courts or Resident Magistrates
Courts,

Although we hasten to add with respect that the above formulation is

too wide in view of the exception referred to above. Where then do

we go from here? In this connection Mr. D*Souza suggested that since

under the Primary Courts Civil Procedure Rules GN 312/64 there is no

requirement for drawing up decrees, similarly there is no requirement

for District and High Courts to issue decrees in appeals from Primary

Courts. We agree that there is no provision in the Primary Court

Civil Procedure Rules for drawing up decrees ncr is there one in the

Magistrates Courts Act 1984 dealing with appeals from Primary Courts.

The nearest provision to the notion of a decree is section 32 of the

Magistrates Courts Act which provides:

32. (2) Where the High Court determines any appeal

or revises any proceedings under this part
/part III of the Act./ it shall certify its
decision or order to the Primary Court in
which the proceedings originated through
the District Court, and the Primary Court
shall thereafter make such orders as are
conformable to the decision or order of
the High Court, and, if necessary, the
records shall be amended in accordance
therewith.

o e o ci
Mr* D* Souza submitted that all that is required in appeals from

Primary Courts, is a certificate of the decision to the Primary

Court concerned. Mr. D*Souza is right but only if no appeal is

preferred to the Court of Appeal against the decision of the High

Court, Where however an appeal is lodged, the provisions of Rule

89 (2) of the Court of Appeal Rules come into play. This Rule

provides:

(2) For the purposes of any appeal from the

High Court in its appellate jurisdiction,
the record of appeal shall contain docu­
ments relating to the proceedings in the
trial court corresponding as nearly as
may be t© those set out in sub-paragraph
(1 ) and shall contain als* the following
documents relating to the appeal to the
first appellate Court:-

(i) The order if any giving leave

to appeal;

(ii) the memorandum of appeal;

(iii) the record of proceedings;

(iv) the judgement or order;

(v) the decree or order;

(vi) the notice of appeal

and in the case of a third appeal, shall

contain also the corresponding documents
in relation to the second appeal and the
certificate of the High Court that a
point of law is involved.

It is clear from these provisions that a decree is required

t* be part of the record of appeal in an appeal originating from

Primary Courts, in other words the High Court must extract a decree
from its decision in an appeal from Primary Courts. The next

question is who signs this decree? Part III of the Magistrate's

Courts Act 1984 does not have such a provision nor the Primary Court

Civil Procedure Rules. In the absence of any provision in the

relevant statutes or the Rules we have to fall back on Rule 3 to

enable us to formulate a procedure in this regard, since the

requirement to draw up decrees in appeals originating from Primary

Courts is in the Rules themselves.

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 judgement.

We think this advantage becomes even more pronounced in a second

appeal originating from Primary Courts, Consequently we think

that even in second appeals in cases originating from Primary Courts

the decree should be signed by the judge. Accordingly in the present

case the decree should have been signed by the judge who decided the

appeal and not the Registrar and that therefore the decree which is

in the record is invalid for that reason,

F*r these reasons we uphold the first ground of the preliminary

objection and say that since the decree which was annexed to the

record of appeal is invalid, this appeal is incompetent and we order

that it be struck out.

For the same reason that this Court gave in Civil Appeal

No. 2/90, we think that justice demands that the appellant be

put in a position whereby he can easily re-institute his appeal

in this Court should he so wish. With that and in view, we hereby

direct that the appellant be at liberty to apply to the High Court

within twenty one days of receiving this decision for a decree in

.../9
 appeal properly signed by the judge concerned or in case the judge

concerned has vacated office for any reason, then such decree shall

be signed by his successor. We further direct that the appellant

be at liberty to re-institute the appeal in this Court within

fourteen days from the date of obtaining the decree from the High

Court without further payment of court fees. As the appellant is

not in any way to blame for this lapse, we make no order as to

costs.

DATED AT ARUSHA THIS 18th DAY OF May, 1999.

L. M, MFALILA
JUSTICE OF APPEAL

B. A. SAMATTA
JUSTICE OF APPEAL

K.S.K. LUGAKINGIRA
JUSTICE OF APPEAL

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

° m
( A.G\ k WARIJA )
DEPUTY REGISTRAR

Judgement delivered today 9th day of June 1999 in the presence of

Mr, D 'Souza for Appellant, Mr. Mwaluko for the Respondent*

AG. DISTRICT REGISTRAR

ARUSHA