Isabela John v. Silverster Magembe Cheyo & 2 others, 2005, (damage or loss)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  LUBUVA, J.A., MUNUO, J.A. AND KAJI, J.A.)

CIVIL APPEAL  NO. 12 OF 2005

ISABELA JOHN    …………………………..… APPELLANT

VERSUS

1.    SILVERSTER MAGEMBE CHEYO

2.    PROVICOM INDUSTRIES LIMITED

3.    NATIONAL BUREAU DE CHANGE

     LIMITED   ……………………..…………… RESPONDENTS

(Appeal from the Judgment of the High Court of Tanzania

Commercial Division at Dar es Salaam)

(Kimaro , J.)

dated the 16^th day of August, 2004

in

Commercial Case  No. 49 of 2003

RULING OF THE COURT

KAJI, J.A.:

        In this appeal the appellant Isabela John is appealing against the decision of the High Court Commercial Division (Kimaro, J.) in Commercial Case No. 49 of 2003.

        In that case she had sued Sylvester Magembe Cheyo, Provicom Industries Limited and National Bureau De Change Ltd, (the 1^st, 2^nd and 3^rd respondents respectively) for, inter alia, a declaration that the mortgage and Guarantee Deeds purported to have been signed by her were null and void, and for damages to be assessed by the Court.

         The respondents, who were the defendants, denied the claim.  At the end of the day the learned trial Judge was satisfied that the appellant had guaranteed the loan facility.  Her claim was dismissed with costs.  She was dissatisfied with the decision; hence this appeal.

         When the appeal was called on for hearing, the respondents, through their advocates, raised a preliminary objection, notice of which had been lodged earlier on in compliance with Rule 100 of the Court of Appeal Rules, 1979.  The objection was based on the following points of law:

1.     That the appeal has been instituted out of time as the same was lodged after 61 days and without leave of the Court contrary to Rule 83 (1) of the Tanzania Court of Appeal Rules, 1979.

2.     That the appeal is incompetent as the decree which is contained in the record of appeal, was signed by the Registrar and not by the Judge who heard the case, contrary to ORDER XX Rule 7 of the Civil Procedure Code, 1966.

3.     That the record of appeal is incompetent as it does not contain a notice of appeal contrary to Rule 89 (1) (j) of the Tanzania Court of Appeal Rules, 1979.

Under the circumstances the respondents prayed for the appeal to be struck out with costs.

        Mr. Nassoro, learned counsel for the appellant, conceded to the points of the defects raised in the preliminary objection.  However he prayed for leave to withdraw what he termed as “an incomplete appeal” with leave to reinstitute it after obtaining a properly signed decree from the High Court.  This was strongly objected to by Mr. Malimi, learned counsel for the 1^st and 2^nd respondents, and Mr. Tadayo, learned counsel for the 3^rd respondent.  The learned counsel briefly addressed  the Court on these points.  They underscored that Mr. Nassoro, for the appellant, had conceded to the preliminary objection.  In  that respect the proper thing to do is to have the appeal struck out.  The learned counsel further contended that, due to the nature of the defects, there is no room for this Court to grant leave to the appellant to reinstitute the appeal after rectifying the defects.

        In reply Mr. Nassoro conceded further that the record is incompetent and so there is no appeal.  But he insisted that the purported appeal should be marked withdrawn and the appellant should be granted leave to reinstitute it after rectifying the defect.  The Court was referred to its decision in Tanganyika Cheap Store Versus National Insurance Corporation (T) Ltd Civil Appeal No. 37 of 2001 (unreported).

        As it is not disputed by counsel for both parties that the appeal is incompetent, we need not dwell for long on this matter.  As correctly conceded, we agree with the learned counsel that the appeal is incompetent.

        The only issue is whether we should accept Mr. Nassoro’s prayer that the appeal should be marked withdrawn and the appellant be granted leave to reinstitute it after rectifying the defects.

        We have carefully considered the prayer by the appellant’s advocate.  But, with due respect to the learned advocate, we are unable to accede to his request in view of the seriousness of the defects when looked at in totality.  In the Tanganyika Cheap Store case (supra) there was only one defect, namely,  a decree signed by the Deputy Registrar.  In that case, the Court took the view that justice demanded that the appellant be put in a position to reinstitute his appeal easily in this Court should he so wish.  The Court was inclined to this view after considering what it had said earlier in Robert John Mugo (Administration of the Estates of the late John Mugo Maina) Versus Adam Mollel, Civil Appeal No. 2 of 1990 (unreported).  In the instant case where there were several fatal defects including the omission of the notice of appeal and institution of appeal out of time without leave of the Court and extension of time, we feel it is not a proper case to do what the Court did in Tanganyika and Robert John Mugo (supra).

        For the foregoing reasons, the preliminary objection is sustained.

        In the end, the purported appeal is struck out with costs.

        DATED at DAR ES SALAAM this 11^th  day of  July, 2005.

D.Z. LUBUVA

JUSTICE OF APPEAL

E.N. MUNUO

JUSTICE OF APPEAL

S.N. KAJI

JUSTICE OF APPEAL

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

S.A.N. WAMBURA

SENIOR DEPUTY REGISTRAR

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