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Organization of Tanzania Trade Union (on behalf of One Hundred and Twelve Employees of National Poultry Co. Ltd) v Presidential Parastatal Sector Reform Commission and Others (Civil Appeal No. 20 of 1999) [2006] TZCA 60 (4 May 2006)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM:  LUBUVA, J.A., MROSO, J.A., And NSEKELA, J.A.)

CIVIL APPEAL NO. 20 OF 1999

ORGANIZATION OF TANZANIA TRADE UNION
(on behalf of One Hundred and Twelve
Employees of National Poultry Co. Ltd.) cccccccc APPELLANTS

 VERSUS

1. PRESIDENTIAL PARASTATAL SECTOR
 REFORM COMMISSION
2. SINGU FARM LIMITED
3. NATIONAL POULTRY CO. LTD. ccccccccccc. RESPONDENTS

 (Appeal from the Ruling and Orders of the High
Court of Tanzania at Dar es Salaam)

(Kaji, J.)
dated the 9th day of May, 1997
in
Civil Case No. 282 of 1995

28 February & 9 May 2006
---------
R U L I N G

NSEKELA, J.A.:

         When this appeal came for hearing, Mr. J. Mauggo, the fourth respondent and Mr. Maro, learned advocate for the 1st; 2nd and 3rd respondents, raised their respective preliminary objections on the competency of the appeal. However, Mr. Mauggo abandoned his preliminary objection, and so hearing proceeded in respect of the preliminary objection raised by Mr. Maro who raised two grounds of complaint in the alternative. These were –
“1. That the appeal is incompetent for want of the Order appealed against.
         Alternatively:-

                 2. That the appeal is incompetent for want of leave to            appeal to the Court.”
        
         Mr. Maro’s first complaint was straight-forward. The learned advocate submitted to the effect that the record of appeal does not contain an Order of the decision of the High Court sought to be appealed against. He added that the notice of appeal lodged in the High Court on the 15.5.1995 was against the decision of Kaji, J. (as he then was) dated the 9.5.1997. However the Order found on pages 156-157 of the record of appeal refers to a Ruling of Kaji, J. (as he then was) dated the 15.4.1997.
         Mr. Mwakajinga, learned advocate for the appellant candidly conceded that a wrong Order was included in the record of appeal. He attributed the error to the carelessness of the advocate concerned in the preparation of the record of appeal. Such carelessness, he contended, did not amount to negligence. Under the circumstances, the learned advocate was of the opinion that this was a minor technical error which would not justify vitiating the appeal.
         Fortunately, this Court had occasion to consider this point in the case of Fortunatus Masha v. William Shija and Another (1997) TLR 41. The Court stated thus at page 44 –
“The third and last ground of objection was that the appeal is incompetent because the record of appeal does not contain the drawn or extracted order in appeal, and in support of this ground Mr. Mwale cited numerous authorities of this Court and of its predecessor, the Court of Appeal for East Africa.
         In response to this submission Mr. Makani concede (sic) the non-compliance with Rule 89 (1) (h) of the Court of Appeal Rules which requires the record of appeal to include the extracted order but strenuously contended that this did not render the appeal incompetent. In his view such non-compliance was merely a procedural or administrative irregularity which could be rectified by making an appropriate order for the filing of a supplementary record.
         The law as it stands is that failure to extract the decree or order in terms of Rule 89 (1) (h) and 2 (v) of the Court of Appeal Rules renders the appeal incompetent, see for instance The Commissioner of Transport v. The Attorney General of Uganda (1959) EA 329 and Juma Mtale v. K.G. Kermali (1983) TLR 50; the finding that an appeal is incompetent has constantly resulted in striking out such appeal, see for instance The National Bank of Commerce v. Methusela Magongo (1996) TLR 394. There is no room for Mr. Makani’s view that non-extraction of the decree or order is a mere procedural or administrative irregularity. In Arusha International Conference Centre v. Damas Augustine Ndemasi Kavishe, Civil Appeal No. 34 of 1988 (unreported) it was held that such non-compliance was fundamental and went to the root of the matter. (see also: Civil Appeal No. 56 of 1997 Dr. Masumbuko R.M. Lamwai v. (1) Venance Francis Ngula (2) Attorney General” (unreported)
         As rightly conceded by Mr. Mwakajinga, learned advocate for the appellant, the record of appeal did not contain the extracted Order of the decision being appealed against. This means that there is no appeal before the Court. The appellant did not comply with Rule 89 (1) (h) of the Court of Appeal Rules. The reason advanced by the learned advocate, was carelessness. In (CAT) Civil Appeal No. 31 of 1998, Zephania Letashu v. Moruo Ndelamia (unreported) this Court had occasion to consider the absence of an Order under Rule 89 (2) (v) of the Court of Appeal Rules. The problem was the same as that now under consideration. The extracted Order in the record of appeal was that of a different application from the one being appealed against. After due consideration the Court stated thus –
“A decree is a vital and central component of the record of appeal since the appeal is grounded on it hence its absence is fatal to the whole exercise.”
         With due respect to the learned advocate, this is not a minor technical error which could perhaps be remedied by ordering that the appellant file a supplementary record of appeal. A supplementary record of appeal pre-supposes that there is a proper appeal before the Court. We are not dealing with an issue of deviation from form as provided for in rule 45 of the Court of Appeal Rules for the making of applications to this Court. The absence of an extracted Order from a record of appeal is a serious mistake which renders the appeal incurably incompetent. The fact of the matter is that no appeal has been instituted. There is a lifeless appeal lying in the Court. (See: Civil Appeal No. 11 of 1993, Abdul Masumai v. Awaichi Awinia Massawe (unreported).
         With respect, we would sustain the preliminary objection on this ground.
         As regards the second alternative ground of complaint, Mr. Maro submitted that the appellant, in terms of section 5 (1) (c) of the Appellate Jurisdiction Act, was enjoined to seek and obtain from the High Court or this Court, leave to appeal. He added that appeals against Orders are governed by section 5 (1) (b) and (c) of the Appellate Jurisdiction Act. Under paragraph (b), 9 orders are specified which do not require leave of the High Court or of this Court. The order at hand is not one of them. Mr. Mwakajinga, once again, readily conceded that it was imperative for the appellant to seek and obtain leave to appeal. The learned advocate was however of the view that non-compliance with section 5(1) (c) of the Appellate Jurisdiction Act 1979 was a mere technicality and should not be a ground for nullifying the appeal, citing Essaji and Others v. Solanki (1968) E.A. 218.
         The central issue falling for determination on this ground is whether or not this Court is vested with jurisdiction to hear the appeal. Mr. Mwakajinga, learned advocate for the appellant, conceded that the appellant had not sought and obtained the requisite leave to appeal. We are in respectful agreement with both the learned advocates, that the appellant should have sought and obtained leave to appeal to this Court. Without such leave, this Court will not have the jurisdiction to hear and determine the appeal. Once leave to appeal has been sought and obtained, it will confer jurisdiction on the Court to hear and determine the appeal. We can safely say that obtaining leave to appeal under section 5 (1) (c) of the Appellate Jurisdiction Act is a condition precedent before such an appeal is entertained by this Court.
         In the event, we also sustain this preliminary objection. Accordingly the appeal is struck out with costs.
DATED at DAR ES SALAAM this 4th day of May, 2006.


D. Z. LUBUVA
JUSTICE OF APPEAL



J. A. MROSO
JUSTICE OF APPEAL



H. R. NSEKELA
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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