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IN THE COURT OF APPEAL OF TANZANIA

AT OAR ES SALAAM

(CORAM: RUTAKANGWA, l.A" MlASIRI, l.A., And MUSSA, l.A.)-------------

CIVIL APPEAL NO. 109 OF 2013

MBEYA CEMENT COMPANY LIMITED ••••••••.••••••••.••••••••••••••••••..••.••.•••APPELLANT

VERSUS

ELLY P. MWAKABANJE ••••••••••••••••.•.••••.••.•••••••••••••••••.•.••••••••••.•.•RESPONDENT---, --------------------

(Appeal from the decision of the High Court of Tanzania

at Oar es Salaam) ~--------------

(Rugazia, l.)

Dated the 22nd day of lune, 2011In

Civil Appeal No. 18 of 2009

JUDGMENT OF THE COURT16th & 26th March, 2015

RUTAKANGWA, J.A.:

The respondent.lnstltuteda suit against the appellant in the Court of

the Resident Magistrate at Kisutu. The basis of the claim was an alleged ! --~

breach of a contract between the two parties for the supply of 338.4 tons of

gypsum worth Tshs 8,460,000/-.

In the suit, the respondent as Plaintiff, was claiming the following

reliefs from the appellant/defendant:----

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I'(a) Payment of the principal sum of Tshs.

8,460,000/-.

-----~--------.

(b) Payment of Tshs. 30,260,000/ in specific

damages.

(c) Interest on (a) and (b) at 2 (sic) from

\~-----". --~--. -----_. __ ..._ .. _ ....._---_.----- \

\December2002to thedate.nfjlldgment.

(d) Interest at 10% on (c) abovefrom the date of

judgment to the date of full payment.

(e) Costs".

The trial of the suit proceeded ex parte on account of the appellant's

total failure to file a written statement of defence. In his judgment the

learned trial Resident Magistrate found in favour of the respondent that there

was indeed a contract between the two parties for the supply of the saidI

gypsum which the appellant unilaterally and prematurely terminated, giving

rise to the cause of action. However, the learned trial Resident Magistrate

found the claim for specific damages and Tshs. 8,460,000/= not to have

been proved. He went further and held:-

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---_ .... ,. -- "'-..,--- - .-.--.-----.- ..~--..-.--

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"According to the plaint the plaintiff's prayers to this

court did not include general damagesand nowhere

________ jL.indicated-&JY- other reUefs-which toomul't-fiM-it-------

just and fit to grant. The court cannotgrant relief

which is not prayed tor":

------me SUIt wasaccordingly dlsmlssed. \,)

The respondent-was-aggrieved and lodged an appealwith -tne-HTgll---- ----------- \

Court at Dar es Salaam. Fortunately, the appeal was heard inter partes.

For the purposes of this appeal, we have found it apt to state that the appeal

was apparently successful.

In allowing the appeal, the learned first appellate judge, after carefully

reviewing the evidence in support of the claims, simply held thus:-

''In sum total, the appeal is allowed to the extent as

demonstrated Theprayers contained in the plaint

are granted excepting prayer (a)."

The judgment is starkly silent on the nature of the prayers or reliefs which

were granted and/or denied.

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There is no gainsaying here that the appeal in the High Court was

instituted, heard and determined under the provisions of Order XXXIXof the

Judgment of the learned first appellate judge, therefore, was governed by

the provisions of O.XXXIX,rule 31. This Rule provides as follows:-

''31 The]Ui:Jgmentof the court shanbe in writing and . \1,

\·iIlshall state-._ .......••.•....... __ _. __ .- .__ .-. ---

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decisions, and

(d) where the decree appealed from is

reversed or varied the relief to which the

appellant is entitled,

and shall at the time it is pronounced be signed and dated by the

judge or by the judges concurring therein. rr

[Emphasis is ours].

It hardly needs over-emphasizing here that both our Constitution and

----··various laws or the land, grant a right of appeal to this Court against the

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.-~-----.-----. - -~----- .

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decision of the High Court. This right, however, is in most cases

circumscribed. One such law, is the Appellate Jurisdiction Act, Cap 141, Vol.

___rvottbe.taws (the Act). .It.Is.partlv provided jn-section-5(--1~ (c) of.theAct ------

that:

''5-(1) In civil proceedings, except where any other

wIitten_Iaw.1orJhe1imeJ.tLforce provides otherwise, ----

-------- -------- --------~~~~-

\';

\an appeaTsfialllle fa the Court of Appeal

(a)...

(b)...

(c) with the leave of the High Court or of the Court

of Appeal, against every other decree, order

judgmenC decision or finding of the High court".

[Emphasis is ours].

In this particular case the party aggrieved by the High Court judgment in

appeal had a right of appeal against the decree of that court under paragraph

(c).

It is trite law that the decree which is to be appealed from must be

extracted from the judgment and shall agree with the judgment. According1Y__u ~ _

a decree in appeal, "shall contain the number of the appeal, the names and

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descriptions of the appel/ant and respondent and a clear specification of

the relief granted or adjudication made" : O.XXXIX, rule 35 (3) of the

...._.._.__C.PL-_ - ~ ---..--..--- --.-.-..--- -- ..-- ~ ..-.-- ..---.-.

In our present case, the decree forming the basis of this appeal which

was extracted from the judgment in appeal reads as follows:-

".._----------- OECREEIN APPEAL -

\WHEREAS,the Appel/ant prays this honourable court-- ... - ... -.-------.~~~--~~ --.-----.-~-~~-

to quash the decision delivered in the Resident

Magistrates Court of Dar es salaam at Kisutu by H.S.

Msongo (R.M.)

This appeal coming for judgment before Hon.

P.A.Rugazia,J. in the presence of Miss Tausilearned

advocate for the Respondent and Appel/ant in

person.

THIS COURT DOTH HEREBY ORDER THAT

The appeal is aI/owed, the prayers in the plaint are

granted excepting prayer (a).

BY THE COURT

----------·~-Date[lth1S"L~dayof7une;2orr:-·--- -.---.---- ..-.- ....-----....-------

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Sign.P.A. Rugazia

JUDGE"

__________The mernorandum.ot.appeal of the appellant listed-two-Qf-Ounds---Of---.---------

appeal against this decree. However, in its written submlsslonstheappellant

categorically abandoned the secondground of appeal. The surviving ground

d.oLcomplaint is to the effect that:-- ..... _ -._ _--_ _ _----

--liThelearned judge erred in law and in fact in holding______···· ·u_· ·_··-------

that specific damages were proved"

The appeal was argued. before us on behalf of the appellant by Mr.

Sam Mapande, learned advocate. For the respondent, Mr. January

Kambamwene, learned advocate, had appeared to resist the appeal.

During the course of hearing the appeal, an issue of law arose

regarding the validity of the impugned judgment and decree on record

having regard to the mandatory provisions of O.XXXIX, rules 31 and 35

referred to above. Counsel for the appellant was of the firm view that the

judgment and decree are defective as they offend the provisions of O.XXXIX

\,____ ..__ ..... ~._ _ 1

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rules-31 and 3S-C~}-ufLPC. He accordingly invited us to InvoKeS~4(3ror-n.----~-----

.. - .._.- ~." ... --.------- ~--.------.----~--- ~-.., ..-.. --.- ... -_._._--_ .._----- ..._- ----------.' .... __ .- ..---_ ...'-_. -.-----------------------------~.---- .-.

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the Act to quash the judgment. On this hewas supported by Dr. Masumbuko

Lamwai, learned advocate, who readily accepted the Court's impromptu

invitation,_ID-BCt..aS-a£riead.oftbaCourLand givebis-opJnion.on-this...cruciaL .u __ ,um ----

issue.

Dr. Lamwai, in his usual flair, stressed that the omission to specify the

.."._..reJie£s....grantedin .the.Hiqh Court judqment.wasa serious issue.of law which

renderedffie judgment incurably defective. He advised that the judgment..... \,

, --~,- ------- ._. _. --_.- . -- -------"----- ,,~be quashed and set aside and in the circumstances of this case, the learned

High Court judge be directed to-prepare and deliver a judgment conforming

with the mandatory requirements of the law.

On his part, Mr. Kambamwene, after some initial hesitancy, eventually

conceded that the judgment was defective. He grudgingly asked that it be

quashed and the High Court be ordered to write a fresh judgment while the

parties' rights under the same judgment being left intact.

The issue whether the judgment of the High Court meets the basic

requirements of a judgment in appeal need not detain us. As already clearly

demonstrated in this judgment, the learned first appellate judge allowed the

appeal thereby reversing totally the trial court's decree which had denied the

respondent herein any relief: He was, therefore, mandatOrily reqUlre(fTo ..--·---n--

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state specifically the reliefs granted to the parties in compliance with

a.XXXIX, rule 35(3) of the C.P.C.

___._.._..... Jhe duty todoso.becomes.unavoidable.qtven the fact.that the--Cfecree--------.. d

to be extracted from the saidjudgment is the one which would be executed- - .. -----

under the provisions of a.XXI of the C.P.C. Without specifying the reliefs

granted thedecree.in.tavourof the respondent, as-jt-r-eadS--AOW,-WOU-ld-be

.._._---_. ----.

\'\,.non executable. -The truth behind this arrestion becomes more apparent

when one reads rule 10(2) and the proviso to rule 15 of a.XXI of the C.P.C.

It is unequivocally provided in rule 10(2) (g) that every application for

execution of a money decree shall state "the amount with interest (if any)

due upon the decree or other relief granted thereby", otherwise it would be

liable for rejection (rule 15 (1) ).

All in all, we are of the respectful finding that the conceded non-

compliance with the mandatory provisions of a.XXXIX, rule 31 of the C.P.Cf -

"vitiates the impugned judgment in appeal. It is incomplete. We are

accordingly constrained to invoke our revisional powers under S.4 (2) of the

Act. We agree with counsel's opinions that the judgment be quashed and

set aside which we hereby do. We remit the record to the High Court with

---.--- directions to the learnedfirst appellate Judgeto write a Judgment conforming

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... _ .._ ..._--------

wbolly with the requirements of O.XXXIX, rule 31 of the C.P.c. We make no

order as to costs.

E.M.K. RUTAKANGWAJUSTICE OF APPEAL

S. MJASIRIJUSTICE OF A~~EAL

\"',,K.M. MUSSA

3US~IGE-0F-APPEA-I:;;---- . --- -- ----- \~

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

-- -... ---~--~~~--~~~~ ~~- --_ .. -- ..-.-.---------~

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