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Dhow Mercantile (EA) Ltd and Others v Registrar of Companies and Others (Civil Appeal No. 86 of 2004) [2005] TZCA 16 (23 March 2005)

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM: LUBUVA, J.A., MUNUO, J.A., And MSOFFE, J.A.)
CIVIL APPEAL NO. 86 OF 2004
BETWEEN

 1. DHOW MERCANTILE (EA) LTD.
2. YOHANA HILARIUS NYAKIBARI ……………………… APPELLANTS
3. GULAMALI SHAH BOKHARI

VERSUS

1. REGISTRAR OF COMPANIES
2. LUSHOTO TEA COMPANY LTD.
3. ABDIRIZZAKH S. TUKE …………………….. RESPONDENTS
4. NAWAB ABDULRAHIM MULLA
5. YUSUF N. MULLA
(Appeal from the decision of the High Court of
Tanzania – Commercial Division at Dar es Salaam)

(Kalegeya, J.)
dated the 23rd day of April, 2004
in
Commercial Case No. 62 of 2003
-----------
RULING OF THE COURT
MUNUO, J.A.:

         In Commercial Case No. 62 of 2003 in the Commercial Division of the High Court of Tanzania at Dar-es-Salaam, the present appellants unsuccessfully sought to strike out the 2nd and 3rd Respondents from the list of share holders in the first appellant company. The action to remove the 3rd, 4th and 5th Respondents from the directorship of the company in question also failed. The appellants claim for general damages was also dismissed. Dissatisfied with the dismissal of the suit, the appellants instituted this appeal.
         Meanwhile, Mr. Kilindu, learned advocate for the 2nd, 3rd, 4th and 5th Respondents filed a Notice of Preliminary Objection under the provisions of Rule 100 of the Tanzania Court of Appeal Rules, 1979 ?
gto the effect that the record of appeal is invalid as it contains a Decree which was signed by a Deputy Registrar instead of the presiding Judge, contrary to the mandatory provisions of Order XX Rule 7 of the Civil Procedure Code, 1966.h
         Counsel for the 2nd to 5th Respondent submitted that non-compliance with the provisions of Order XX Rule 7 of Civil Procedure Code, 1966 renders the appeal incompetent so the same ought to be struck out with costs.
         Order XX Rule 7 of the 1966 Civil Procedure Code, states, inter alia:
g 7. The decree shall bear date the day on which the judgement was pronounced, and when the Judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgement, he shall sign the decree.h
         Mr. Ukongwa and Mr. Luguwa, learned advocates for the appellants, conceded that the decree is defective because it was not signed by the trial judge, a fundamental irregularity which renders the appeal incompetent. Mr. Ukongwa prayed that the appellants be allowed to reinstitute the appeal. He further prayed that the parties bear their costs for this appeal.
         As the learned counsel for the appellants concede to the preliminary objection, we only wish to make a few observations.
         Order XX Rule 7 of the 1966 Civil Procedure Code states the rationale for the trial Judge or magistrate signing the decree, that is, to satisfy
g --- himself that the decree has been drawn up in accordance with the judgement ---g
         The Court reiterated the same principle in the case of Tanganyika Cheap Store versus National Insurance Corporation (T) Ltd., Civil Appeal No. 37 of 2001 (unreported) by holding;
g We are of the settled view that the Deputy Registrar had no competence to sign the decree under Order XX Rule 7. -- The use of the word gshallh in Order XX Rule 7 indicates that there is no room for any other person to sign the decree. Order XX Rule 7 has specifically designated Judges and magistrates to sign decrees as appropriate ---"
         In the Tanganyika Cheap Store Case, the Court referred to two decisions of the Court on the same subject of trial, and, or appellate Judges or magistrates, signing decrees or decrees in appeal as the case may be. In the case of Robert John Mugo (Administrator of the Estate of the late John Mugo Maina) versus Adam Mollel, Civil Appeal No. 2 of 1990 (unreported) wherein the decree had been erroneously signed by the District Registrar, the Court struck out the appeal and observed
g\that a decree in appeal which is not signed by a judge as required by Order 39 Rule 35 (4) [of the 1966 Civil Procedure Code] invalidates the purported decree. This is because such signature by a judge is mandatorily required and it authenticates the decree.h
         Again, in the case of Ndwaty Philemon Ole Saibull versus Solomon Ole Saibull, Civil Appeal No. 68 of 1998 (unreported), the decree had erroneously been signed by the District Registrar. The Court struck out the appeal with costs holding that -

gThe 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.h
         In view of the above, we sustain the preliminary objection with costs.
         DATED AT DAR-ES-SALAAM this 23rd day of March, 2005.

D.Z. LUBUVA
JUSTICE OF APPEAL
E.N. MUNUO
JUSTICE OF APPEAL
J.H. MSOFFE
JUSTICE OF APPEAL

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



( S.M. RUMANYIKA )
DEPUTY REGISTRAR

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