IN
THE COURT OF APPEAL OF TANZANIA
AT
DAR ES SALAAM
(CORAM: NSEKELA, J.A., KILEO, J.A. And LUANDA
CIVIL
APPEAL NO. 97 OF 2007
VERSUS
PEMBE
FLOUR MILLS LIMITED ..…………………. RESPONDENT
(Appeal
from the Judgment and Decree of the
High
Court of Tanzania at Dar es Salaam
(Mihayo,
J.)
dated
the 25th day of May, 2007
in
Civil
Case No. 101 of 2005
--------------
RULING
OF THE COURT
5 December, 2008
& 17 February, 2009
NSEKELA, J.A.:
In High
Court Civil Case No. 101 of 2005 at Dar
es Salaam
When the
appeal was called on for hearing, we were obliged to first hear and determine a
preliminary objection lodged by the respondent, Pembe Flour Mills Limited, in
terms of Rule 100 of the Court of Appeal Rules.
The complaint was to the effect that the decree was fatally defective
and therefore the appeal before the Court was incompetent and should be struck
out. Mr. E. Maro and Mr. W. Chipeta,
learned advocates, represented the respondent.
The appellants were represented by Mr. Tadayo and Mr. Msuya, learned
advocates.
Mr. Maro
challenged the validity of the decree on two fronts. First,
he contended that it does not contain the particulars of the
counter-claim. Second, that it does not specify the reliefs granted. This, he submitted, offended Order XX Rule 6
(1) of the Civil Procedure Code Act, Cap
33 RE 2002 (CPC). Elaborating on the
first complaint, the learned advocate submitted that the decree simply states
that the cross-suit is dismissed. The
counter-claim contained five specific reliefs and one general relief, but the
decree did not contain the particulars of the reliefs. This, he added, was a clear violation of
Order XX rule 6 (1) of the CPC. On the
second ground of complaint, Mr. Maro submitted that the extracted decree does
not specify the reliefs granted in the judgment as well. To bolster his case the learned advocate
cited Uniafrico Limited and 2 Others v
Exim Bank (T) Limited, Civil Appeal
No. 30 of 2006 (unreported). In view of
this purported non-compliance of Order XX Rule 6 (1) of the CPC, the decree was
not valid in law, citing Rashid Abdul
Rashid El Sinani and Another v Mussa
Haji Kombo and Another, Civil Appeal No. 103 of 1998 (unreported). The inevitable consequence of this defective
decree was to strike it out thus rendering the appeal before the Court
incompetent. This would be in line with
the decisions of this Court under Order XX Rule 7 of the CPC, including Tanganyika Cheapstore v National Insurance Corporation (T)
Limited, Civil Appeal No. 23 of 2003 (unreported); Jovin Mtagwaba and 85 Others v
Geita Gold Mining Limited, Civil Appeal No. 109 of 2005 (unreported); Mkama Pastory v Tanzania Revenue Authority, Civil Appeal No. 95 of 2006
(unreported).
On his
part, Mr. Tadayo, learned advocate, very briefly submitted that the
counter-claim, which was a cross-suit, had been dismissed in its entirety. He added that the decree has already been
executed and consequently, the validity of the decree cannot be questioned at
this juncture. The learned advocate
questioned the relevancy of the cases referred to by Mr. Maro on the ground
that the issue at hand was the contents of the decree itself and not the
validity of the decree.
It cannot be seriously contended that
the decree as drawn up does not correctly state what the court actually decided
and intended. The decree did not
represent the decision which the court had pronounced. As far as we are aware, the Chief Justice has
not prescribed forms for use in terms of section 101 (1) of the CPC.
Consequently, we have to resort to forms in use in connection with proceedings
under the Code of Civil Procedure, 1908, India
(3) All form (sic) heretofore in use in connection
with proceedings under the Indian Code of Civil Procedure, 1908, as in force in
Tanganyika, shall, where applicable and subject to such variations as may be
necessary, be deemed to be forms approved by the Chief Justice for use in
connection with proceedings under this Code until replaced by forms prescribed
or approved by the Chief Justice under subsection (1).”
It is
therefore evident that the forms prescribed under the Indian Code of Civil
Procedure, 1908 are applicable under CPC with appropriate variations. This means that the decree herein had to be
drawn substantially like Appendix D, Decrees, No. 1, Decree In Original Suit
(O.20rr 6,7). To this we may add to
mention, section 25 (2) of the Interpretation of Laws Act Cap 1 RE 2002 which
reads –
(2)
An
appendix or schedule to or a table in a written law, together with any notes
thereto, forms part of the written law.”
The form for a decree under Order XX
rules 6 and 7 of the Indian Code of Civil Procedure 1908 runs as follows –
“DECREE IN ORIGINAL SUIT
(ORDER 20, RULES 6, 7)
TITLE
Claim for
……………………………………………………….
This suit coming on this
day for final disposal before ………………………………. in the presence of ……………………….. for
the plaintiff and of ………………………. for the defendant,
It is ordered and decreed that …………………. and
that the sum of Rs …………………… be paid by the ………………………….. to the …………………… on
account of the costs of this suit, with interest thereon at the rate of …………………
per cent per annum from this date to the date of realization.
Given under my hand and the seal of the
Court, this day of ……………………..
Judge”
The decree, the subject-matter of the preliminary
objection is in the following terms –
“DECREE
The plaintiff
prays for judgment and decree as follows:-
(i) A declaration that the defendant owed a duty
of care to the plaintiff’s cargo and the same was breached as a result the
plaintiff has suffered loss.
(ii) A declaration that the plaintiff is entitled to be compensated
for part-loss and adulteration of its cargo by the defendant.
(iii) Payment of US$ 1,074,961.69 being the
total amount due as damages in respect of the part-loss and adulteration of its
cargo by the defendant.
(iv) Interest on the amount due in (iii) above at the commercial rate
of 24% per annum from the date of default to the date of judgment.
(v) General damages.
(vi) Interest on the decretal sum at the courts rate of 12% per annum
from the date of judgment to the date of full settlement thereof.
(vii) Costs of this suit.
(viii) Interest on the costs at the court’s rate of 12%
per annum from the date of judgment to the date of payment in full.
(ix) Any further orders that this Honourable Court may deem fit to
grant.
This suit coming for final disposal on 18th
day of May, 2007 before Honourable T.B. Mihayo, Judge in the presence of Mr.
Msangi Advocate for the plaintiff and Mr. Kaluwa Advocate for the defendant.
THIS COURT DOTH HEREBY
OFFERED (sic) THAT
Judgment and decree be and
is hereby entered for the plaintiff with costs.
The cross suit is dismissed.
BY THE COURT
Dated this 18th
day of May 2007
T.
B. MIHAYO
JUDGE
Extracted
on 25.05.07.”
The
question we have to answer is, does the decree reproduced above agree with the
judgment in terms of Order XX rule 6 (1) of the CPC? In order to answer this question, we have to
quote the relevant part of the judgment.
It provides as follows –
“The relevant result of
what I have endevoured to say above is that the suit succeeds and the cross
suit fails. This means that the reliefs
prayed for in the plaint succeed as follows:
(i)
I
have found above that the defendant owed a duty of care to the plaintiff’s
cargo which was breached and therefore the plaintiff is entitled to be
compensated for the loss suffered.
(ii)
Payment of US$ 1,074,961.69 being total
amount due as damages in respect of the part loss and adulteration of the
plaintiff’s cargo. This amount is
calculated from the evidence of Fuad Edha Awadh (PW4).
(iii)
Interest
on the amount due in (ii) above at 24% per annum from date of default to date
of judgment.
(iv)
General
damages for suffering, loss of business on the adulterated wheat. Taking everything into account, I award
general damages at TShs. 70 million (Seventy Million Tanzanian Shillings).
(v)
Interest on the decretal sums at court’s
rate of 12% per annum from date of judgment to the date of full settlement.
(vi)
Costs
of this suit.
Judgment for the
plaintiff with costs, the cross suit is dismissed.
T.
B. Mihayo
Judge”
It is
evident that the decree as drawn up did not represent correctly the judgment as
pronounced. The decree has not specified
the reliefs granted. In fact there is no
mention at all of the reliefs granted.
All that was required was to copy Form No. 1, Appendix D of the Indian
Code of Civil Procedure, 1908 with appropriate variations. We are therefore in respectful agreement with
Mr. Maro that the decree was defective.
However, a
failure to follow the language used in Form No. 1, Appendix D does not render
the decree fatally defective as contended by Mr. Maro, and therefore liable to
be struck out. The validity of a decree
depends upon the authority by which it is issued and the mandate that it
contains and not upon the extent to which the language prescribed by the Code
has been reproduced. We should look
rather to the substantial effect intended by the decree than to the precise
form of the words used in the decree (see: Mahadev
Parshad v Nst. Mungi d/o Pandit Sheo
Baksh Rai and Another, AIR 1959 Punjab
565). Order XX rule 6 (1) of the CPC
requires that a decree shall agree with the judgment and shall specify clearly
the relief granted or other determination of the suit. The decree herein clearly did not comply with
this requirement of the law. In the case
of Badrudin Hasham Lachani and Another v Pyarali Hasham Lakhani (1978) LRT n 26
the then East African Court of Appeal held that –
“Where a decree is
inconsistent with the judgment, it must be amended accordingly to agree with
the judgment.”
To this we
may, with respect, add the following observations made by their Lordships in In re Swire; Mellor v Swire (1885) 30 Ch D 239. Luidley,
L.J. stated thus at p. 246:-
“This case has raised a
discussion of some importance, because it was contended that when once the
order of the Court was passed and entered it could not be put right, even
although as drawn it did not express the order as intended to be made. I protest against any such notion. There is no such magic in passing and
entering an order as to deprive the court jurisdiction to take its own records
true, and if an order as passed and entered does not express the real order of
the Court, it would as it appears to me,
be shocking to say that the party aggrieved cannot come here to have the
record set right, but must go to the House of Lords by way of appeal.”
And Bowen L.J. said
at p. 247 –
“Every Court has inherent
power over its own records so long as those records are within its power and it
can set right any mistake in them. It
seems to me that it would be perfectly shocking if the Court could not rectify
an error which is really the error of its own minister. An order, as it seems to me, even when passed
and entered, may be amended by the Court so as to carry out the intention and
express the meaning of the Court at the time when the Order was made, provided
the amendment be made without injustice or on terms which preclude injustice.”
The decree
started with a repetition of the plaintiff’s nine prayers in the plaint. The second part of the decree was in the
following terms –
“This suit coming for final
disposal on 18th day of May, 2007 before Honourable T. B. Mihayo,
Judge, in the presence of Mr. Msangi Advocate for the plaintiff and Mr. Kaluwa
Advocate for the defendant.”
This
is in line with Form No. 1 of Appendix D of the Indian Code of Civil Procedure,
1908. The third limb of the decree reads
–
“THIS COURT DOTH HEREBY
OFFERED (sic) THAT
Judgment and decree be and
is hereby entered for the plaintiff with costs.
The cross suit is dismissed.
BY
THE COURT
Dated
18th day of May 2007
T. B. MIHAYO
Judge
Extracted on 25/05.07.
It is
evident from this operative part of the decree that no reliefs have been
granted. The reliefs in the decree are
the ones to agree with the judgment. By
way of illustration, a glaring omission is the award of TShs. 70 million as
general damages awarded in the judgment.
In the
result, we sustain the preliminary objection.
However, in line with Lakhani’s
case, we order that the decree be amended so as to comply with section 101 (3)
read together with Order XX rule 6 (1) of the CPC. The appellant is condemned to pay costs.
It is so
ordered.
DATED at DAR ES SALAAM this 13th
day of February, 2009.
H. R. NSEKELA
JUSTICE
OF APPEAL
E. A. KILEO
JUSTICE
OF APPEAL
B. M. LUANDA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(P. B. KHADAY)
DEPUTY
REGISTRAR
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