Bryson Nina vs Michael Hayshi (Civil Appeal No. 6 of 2013) [2014] TZCA 2277 (14 March 2014)

\ IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: BWANA, J.A; MANDIA, J.A; And ORIYO, J.A.) CIVIL APPEAL NO. 6 OF 2013 BRYSON NINA .......................................... .. APPELLANT VERSUS MICHAEL HAYSHI ........................................ RESPONDENT 11 th & 14 th March, 2014 BWANA, J.A. (Appeal from the decision of the High Court of Tanzania at Arusha) (Chocha, J.) Dated 13 th day of October, 2008 In Civil Appeal No. 1 of 2006 RULING OF THE COURT The present appellant, Bryson Nina, was the appellant before the High Court of Tanzania at Arusha after being dissatisfied with the decision of the Housing Appeals Tribunal of Tanzania at Arusha (hereinafter referred to as the Appeals Tribunal). In its decision, the Appeals Tribunal had dismissed all the four grounds of appeal raised by the appellant. Earlier on, he had been unsuccessful in Application No. 45 of 2003 before the then Regional Housing Tribunal of Arusha, at Arusha. 1

In its decision, the Appeals Tribunal held that the appellant was a rent defaulter and was, as ordered by the trial Tribunal, to vacate the suit premises as well as pay rent arrears. Still dissatisfied, the appellant filed an appeal before the High Court, Civil Appeal No. 1 of 2006, where, again he lost. He has now preferred this appeal. Both parties to this appeal were unrepresented. In the course of hearing this appeal, some matters were realised by the Court suo motu, matters that may determine the appeal before us at this early stage. One such matter was whether the judgment of the Appeals Tribunal, dated 30 th September, 2005 has ever been delivered in the presence of the parties. The respondent herein told the Court that the said judgment was indeed delivered but that the appellant, although summoned, never entered appearance in court to receive the judgment. On his part, the appellant was adamant that the said judgment has never been delivered. He got a copy of the same from court clerks at the High Court. 2

Having perused through the case file, there is no proof that the said judgment was indeed delivered. After composing the said judgment, the chairman of the Appeals Tribunal made the following Order:- "Order: It is hereby ordered that a certified copy of this judgment should be sent together with the original record to the honourable Chairman of the Arusha District Land and Housing Tribunal so that the judgment may be read over to the parties/advocates. Signed Chairman 3dh September, 2005" There is no proof on record that this important Order of the Appeals Tribunal was implemented and or read to the parties, after which an entry on the record should have been made to that effect. In the absence of such judgment being read/delivered to the parties, the accompanying decree is invalid. It could have been prepared only after 3

delivery of the judgment ( as provided under Order XX R. 7 of the Civil Procedure Code - (the CPC). The said Rule 7 sates: 11 The decree shall bear the date of the day on which the Judgment was pronounced and, when the Judge or Magistrate has satisfied himself that the decree has been drawn up in accordance with the Judgment he shall sign it'~ (Emphasis provided). Therefore, in our considered opinion, the purported decree on the case record, dated 30 th September, 2005 is not a decree in a legal sense as it was drawn up before judgment was delivered. Further, it is our considered view that the appellant could not lodge his appeal to the High Court against the Appeals Tribunal's decision prior to the said decision being first delivered to the parties as directed by the Chairman of the Appeals Tribunal on 30 th September, 2005. Therefore the subsequent proceedings before the High Court are vitiated because they 4

are based on a judgment which has yet to be pronounced. Such proceedings are a nullity and accordingly should be struck out as we hereby do. As a consequence of the foregoing, there is no appeal before us - the High Court's proceedings having been struck out. What remains, in these long and protracted proceedings, is the Appeals Tribunal Judgment dated 30 th September, 2005 and an Order for its transfer and delivery by the Arusha District Land and Housing Tribunal (supra). Accordingly, we invoke section 4(2) of the Appellate Jurisdiction Act, Cap 141, and make the following orders. First, as stated above all the proceedings in the High Court consequent to the Order of the Appeals Tribunal are declared a nullity. Second. Being left with the Appeals Tribunal's judgment and Order as the valid decisions in this case, the said judgment be delivered by the Arusha District Land and Housing Tribunal in the 5

presence of the parties hereto. To avoid doubts, we direct that the court official who shall deliver the said judgment, endorse so, after delivery. Only then a party not satisfied with that decision may embark on a fresh appeal process, if he so wishes. DATED at ARUSHA this lih day of March, 2014. S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL M.A. M. LE DE UTY REGIST R COURT OF APPEAL I 6