IN
THE COURT OF APPEAL OF TANZANIA AT
ARUSHA
(CORAM:
RAMADHANI,
J.A., NSEKELA. J.A., And KAJI,J.A.)
CIVIL
APPEAL NO. 77 OF 2002
BETWEEN
TANGA
CEMENT COMPANY LIMITED...............APPELLANT
AND
CHRISTOPHERSON
COMPANY LIMITED........RESPONDENT
(Appeal
from the judgment/decree of the High Court of Tanzania at Moshi)
(Mchome.
J
dated
the 8th
day of October, 2001 in
Civil
Case No. 11
of 1998
RULING
KAJI.
J.A.: (27
OCTOBER 2004 )
The
respondent Christopherson Company Limited, successfully sued the
appellant, Tanga Cement Company Limited, for various amounts of money
for breach of contract. The appellant lodged this appeal against the
whole decision of the trial High Court (Mchome, J.) through its
advocates W.A.L. Mirambo & Co., Advocates and Shayo, Jonathan &
Co., Advocates.
When the appeal was
called on for hearing, Mr. Makange learned counsel for the
respondent, raised a preliminary objection under Rule 100 of the
Court Rules, 1979, notice of which had been served on the Court and
on the appellant.
In the preliminary
objection Mr. Makange raised the following grounds:-
That the Notice of
Appeal lodged in the High Court of Tanzania at Moshi on the 10th
day of October, 2001, being related to an imperfect
decision/judgment and orders of the Honourable Mr. Justice L.B.
Mchome, given at Moshi on the 8th
day
of October, 2001, is both premature and legally incompetent with the
effect that Civil Appeal No. 77 of 2002 ought to be struck out with
costs.
That, in the event of
this Honourable Court upholding the first-mentioned preliminary
objection, both the decree and memorandum of appeal are, as
corollary, misconceived at law with the effect that Civil Appeal No.
77 of 2002 ought to be struck out with costs.
That in the event of
this Honourable Court overruling the first-mentioned preliminary
objection, Civil Appeal No. 77 of 2002 ought to be struck out with
costs for want of service of Notice of Appeal on the respondent as
mandatorily required under Rule 77 (1) of Tanzania Court of Appeal
Rules, 1979.
That, as there exists no
nexus between the judicial proceedings dated 18/2/2000 and those
resumed on 27/9/2000, the record of appeal is bad at law on grounds
of incompleteness with the result that Civil Appeal No. 77 of 2002
ought to be struck out with costs.
In the course of hearing
the preliminary objections Mr. Makange abandoned ground No. 3 after
he learned from his client that before he took over the conduct of
the appeal from Mr. Mahatane, learned counsel, his client was duly
served with the Notice of Appeal. Mr. Makange proceeded with the
remaining three grounds.
In elaborating ground
No. 1 Mr. Makange stated that, on 8.10.2001, judgment was entered in
favour of the respondent. But reasons for the judgment were reserved
till on 15.10.2001 when they were read. Before the reasons were read,
on 10.10.2001 the appellant lodged the Notice of Appeal against the
whole decision of 8.10.2001. It was the learned counsel's submission
that the decision delivered on 8.10.2001 was not a judgment which
could be appealed against. He said that the judgment of the case was
the one which was read on 15.10.2001 which contained the grounds for
the decision. The learned counsel referred us to the case of RAICHAND
& ANOTHER V ASSANAND & SONS (1957) EA 82, and the definition
of the word "judgment" under section 3 of the Civil
Procedure Code,
1966. He said that since
the grounds for the judgment which was the judgment in the case were
delivered on 15.10.2001, the Notice of Appeal which was lodged on
10.10.2001 was lodged prematurely and was legally incompetent.
Arguing ground No. 2,
the learned counsel stated that, a decree must agree with the
judgment as stated under ORDER XX Rule 6 (1) CPC. He said that in the
instant case the decree filed by the appellant, does not agree with
the judgment, especially in terms of the amount which the respondent
was awarded. He said that, whereas the amount in the judgment dated
15.10.2001 shows the amount to be Shs. 30,000,000/=, the decree shows
the amount to be Shs. 30,062,000/= which is also reflected in the
decision of 8th
October,
2001. The learned counsel further stated that, even the memorandum of
appeal was defective because it purportedly showed that it referred
to the whole decision and moreover in its heading it refers to the
decision of 8.10.2001 which was not the judgment of the case. It was
the learned counsel's submission that the decree and the memorandum
of appeal were misconceived.
Arguing ground No. 4,
the learned counsel stated that, on 18.2.2000 judgment was entered in
favour of the respondent. According to the record of appeal, nothing
is shown to have transpired until on 27/9/2000 when the case was
fixed for hearing defence on 24.11.2000. The learned counsel wondered
how a case whose judgment had been delivered on 18.2.2000 was again
fixed for hearing defence on 24.11.2000. He said that there is no
nexus between the judicial proceedings dated 18.2.2000 and those
resumed on 27.9.2000. When later it transpired from the bar that
there were some proceedings between 18.2.2000 and 27.9.2000 whereby
the judgment of 18.2.2000 was set aside, and that the said
proceedings were not included in the record of appeal, the learned
counsel stated that, in that respect the record of appeal is bad at
law on the ground of incompleteness and a breach of Rule 89 (1) (k)
of the Court Rules, 1979, and that it was falsely certified to be a
correct copy of the record. He therefore called upon the Court to
strike out the appeal with costs.
On the other hand Mr.
Shayo, learned counsel for the appellant, stated that the first
ground of objection can find its answer in logic. He said that the
decision of 8.10.2000 is what the learned trial judge had in mind.
The decision of 15.10.2000 are his reasons for his decision of
8.10.2000. The decree shows the reliefs granted. In his view, the
difference in the amount awarded in the decision of 8.10.2000 and
15.10.2000 is minor which cannot make the judgment or decree
imperfect. However the learned counsel conceded that he did not apply
for amendment of the decree. The learned counsel further stated that,
of the two decisions, the true judgment is that of 8.10.2000, and
that the one of 15.10.2000 were merely reasons for the judgment of
8.10.2000. He cited the decision of the then Court of Appeal for
Eastern Africa in the case of SHEIKHA BINTI ALLI BIN KHAMIS AND
ANOTHER V HALIMA BINTI SAID BIN NASSIB AND OTHERS (1959) EA 500. In
that respect it was the learned counsel's submission that the Notice
of Appeal is not premature nor is it incompetent.
On why there is no nexus
between the judicial proceedings of 18.2.2000 and 27.9.2000, the
learned counsel stated that, they applied before the trial court for
copies of proceedings, judgment and decree for appeal purpose, and
that they were supplied with the same minus those of between
18.2.2000 and 27.9.2000.
The learned counsel
further submitted that if the respondent felt that the record was
insufficient, he should have lodged a supplementary record under Rule
92 (1) of the Court Rules, 1979. The learned counsel urged the Court
to overrule the preliminary objection.
It is common ground that
the Notice of Appeal, the memorandum of appeal and the decree refer
to the judgment/decision and orders of the High Court (Mchome, J.)
dated 8th
October, 2001. The crucial issue is which of the two is a judgment?
Is it that of 8.10.2001 or that of 15.10.2001? Mr. Shayo, learned
counsel for the appellant, argued vehemently that the judgment of the
case is the one dated 8.10.2001 because it is what the trial judge
had in mind. On the other hand Mr. Makange, learned counsel for the
respondent, argued forcebly that the judgment of the case is the one
dated 15.10.2001 because it contains the grounds for the decision.
In our view, before
coming to the decision, we think it is imperative that we revisit the
meaning of "judgment." The word "judgment" as
defined under Section 3 of the Civil Procedure Code, 1966 has the
following meaning:-
"3 'Judgment' means
the statement given by the Judge or the Magistrate of the grounds of
a decree or order."
Let us see what the
decision of 8.10.2001 says. It is recorded as follows:-
8/10/2001
Order:
Judgment entered for the plaintiff for:-
Shs. 30,062,000/= plus
interests at 6% from 1/5/1986 till full payment.
General damages at Shs.
5,000,000/= for breach of contract.
Costs of this suit
Interest on 2 & 3
above at 12% 1/2 p.a. from date of judgment till full payment.
Reasons for judgment to be given on 15/10/2001.
We ask ourselves: is
this a judgment? We have already observed the meaning of a judgment
as defined under Section 3 of the Civil Procedure Code 1966. We ask:
what are the necessary contents of a judgment? In order to answer
this question properly we look at ORDER XX Rule 4 of the Civil
Procedure Code, 1966 which states:-
"4: Judgment shall
contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such
decision"
In the instant case the
decision of 8.10.2001 does not contain a concise statement of the
case, the points for determination and the reasons for the decision.
In that respect we are of the view that, it is not a judgment.
But the decision of
15.10.2001 has all the necessary elements; a concise statement of the
case, the points for determination, the decision thereon and the
reasons for the decision. We are satisfied that it is this decision
of 15.10.2001 which is the judgment of the case. In that respect the
Notice of Appeal, the memorandum of appeal and the decree should have
been in respect of that decision and not that of 8.10.2001 for the
reasons we have already stated. We therefore agree with the learned
counsel for the respondent that the notice of appeal, the memorandum
of appeal and the decree which were related to the decision of
8.10.2001, were premature and legally incompetent, and that legally,
there was no notice of appeal, memorandum of appeal and decree in
respect of the real judgment of the case dated 15.10.2001.
We are aware of the
decision by the then Court of Appeal for Eastern Africa in the case
of SHEIKHA BINTI ALLI BIN KHAMIS AND ANOTHER V HALIMA BINTI SAID BIN
NASSIB AND OTHERS (1959)EA 500 cited by Mr. Shayo, learned counsel
for the appellant. In that case the appeal had been heard on
8/10/1958, at the end of which the court announced that the appeal
had failed and that reasons would be given in writing later. These
were read in open court on 24.10.1958. The motion for leave to appeal
to the Privy Council was filed on Monday 8.12.1958, that is, 61 days
after the decision given at the hearing on 8.10.1958. Counsel for the
applicants argued that "judgment" in Section 4 of the Order
in Council meant, in that case, the reasons for the Court's decision
which were read on 24.10.1958, and not the decision given on
8.10.1958, and that therefore the application was well in time. In
the alternative he argued that since the last day for filing the
motion fell on a Sunday, it should be excluded when calculating the
period, and that anything done on the day following should be held to
be in time. The court held as follows:-
(i) The "judgment"
on the appeal was the decision given on 8.10.1958; the fact that the
document giving the reasons of the court for its judgment was headed
"judgment" could not alter the fact that judgment on the
appeal had been given on 8.10.1958, and the document merely set out
reasons for that judgment and was not itself judgment."
(ii)
But in that case the
court held so because the then Kenya Civil Procedure Ordinance had no
provision defining what a judgment was, unlike in the instant case
where the word "judgment" has been defined under Section 3
of the Civil Procedure Code, 1966, and elaborated under ORDER XX Rule
4 of the Civil Procedure Code, 1966. These two cases, therefore, were
decided through two different laws. That is why we are not persuaded
to adopt the holding in Sheikha
case.
As for the absence of
nexus between the judicial proceedings dated 18.2.2000 and those
resumed on 27.9.2000, the learned counsel for the appellant has
conceded the omission. He has also conceded the same to be a breach
of Rule 89 (1) (k) of the Court Rules, 1979. However he said that the
error can be cured by ordering a supplementary record of appeal under
Rule 92 of the Court Rules, 1979.
In view of the position
we have taken in respect of the first two grounds, we do not consider
it necessary to consider and determine this ground.
In the event, and for
the reasons stated, we uphold the preliminary objection by the
respondent and we hereby strike out the appeal with costs.
DATED at ARUSHA This
27th
October day, 2004.
A.S.L. RAMADHANI
JUSTICE OF APPEAL
H.R. NSEKELA
JUSTICE OF APPEAL
S.N. KAJI
JUSTICE OF APPEAL
I certify that this is a
true copy of the original.
S.M RAMUNYIKA
DEPUTY REGISTRAROF
APPEAL
