Dissatisfied with the Ruling and Orders of the High Court, the vendor and purchaser of the property on the material plots, now the
co-appellants, through the services of Mr. Marando, learned advocate, instituted Civil Appeal No. 31 of 2006 to challenge the decision
of the High Court.
At the hearing, the Court suo motu, asked counsel for the appellant whether the Drawn Order was signed by the learned judge who passed
the decision appealed from, as is mandatory under the provisions of Order XXXIX Rule 35(4) of the Civil Procedure Act, Cap 33 R.E.2002
which states, inter-alia;
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"Ru/e 35 (4) The decree shall be signed and dated by the judge or judges who passed It: Provided that where there are more Judges
than one and there is a difference of opinion among them, it shall not be necessary for any judge dissenting from the judgment of
the Court to sign the decree."
Counsel for the appellant conceded that the Drawn Order was not signed by the learned judge. He, however, doubted whether a decree
is synonymous with an order, implying that the Drawn Order appealed against was rightly signed by the District Registrar of Dar es
Salaam Zone instead of being signed by the judge who decided the matter.
Mr. Galikano, learned advocate for the respondent, contended that the appeal is incompetent in view of the defective Drawn Order
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which was not signed by the judge who decided the case. He therefore urged the Court to strike out the appeal with costs.
We found Mr. Marando's distinction of decree and order novel so we considered the same. Such distinction was considered by the Court
in the case of Cleophace M. Motiba and 6 others versus The Permanent Secretary Ministry of Finance and 2 others Civil Appeal No.
17 of 2003, Court of Appeal of Tanzania (unreported). In that case the Court affirmed its decision in the case of NBC Holding Corporation versus Mazige Mauya and another, Civil Appeal No. 36 of
2004 wherein it held that a decree which was not signed and dated by the judge who gave the decision was invalid for non-compliance
with the provisions of Order XXXIX Rule 35(4) of the Civil Procedure Act, Cap 33 R.E 2002. However, the Court distinguished an order
from a decree by observing that:
"The order in the record of appeal in the present matter was signed by an acting District Registrar who was "Registrar"
under
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the High Court Registries Rules, 1985 (Government Notice No. 335 of 1991). To invalidate it on the mere argument that an "order"
should be treated as a "decree" will result in the appeal being declared incompetent. We think, with respect, that such
a drastic consequence should come about only from a clear and unambiguous legal requirement in the Civil Procedure provisions or
in decided cases. There is at present no such requirement and we are not inclined to create one in this case. We dismiss the preliminary
objection with costs."
In the case of Cleophance M. Motiba cited supra, the Court referred to the cases of Robert John Mugo (Administrator of the Estate
of the late John Mugo Maina) versus Adam Mollel, Civil Appeal No. 2 of 1990, Court of Appeal of Tanzania (unreported); Ndwaty
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Philemon Ole Saibul versus Solomon Ole Saibul, Civil Appeal No. 68
of 1998, Court of Appeal of Tanzania (unreported), and Tanganyika
Cheap Store versus National Insurance Corporation Ltd., Civil Appeal
\ No. 37 of 2001, Court of Appeal of Tanzania (unreported) in which
V
decrees in appeals had not been signed by the trial judge whereupon the Court affirmed the decision in Ndwaty Philemon Ole Saibul's
case cited supra to the effect that:
"777e 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 judgment."
The Court further distinguished a decree from an order by categorizing orders in appeal which: -
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".
apparently will need to be
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