(CORAM:
MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.)
1. SALUM ABASS SALUM
2. ABDALLA HIJA SHAMTE
……………………….. RESPONDENTS3. ALI SEIF ALI
(Appeal from the Judgment and Decree of the High
Court of Zanzibar at Vuga)
(
Mbarouk, J.)dated the 1
st day of March, 2006in
Civil Appeal No. 36 of 2005 -------------- JUDGMENT OF THE COURT10 & 17 November 2006 MSOFFE, J.A.:
This is an appeal from the judgment and decree of the High Court of Zanzibar (Mbarouk, J.) dated the 1st day of March, 2006 in Civil Appeal No. 36 of 2005 allowing the 1st respondent’s appeal thereto.
Briefly, in the District Court of Zanzibar at Mwanakwerekwe the appellant sued the 3
As already observed, the decree the subject of the appeal to the High Court was not signed by the Regional Magistrate who passed it. Hence, at the hearing of the appeal the following issue
We think it is pertinent to begin by quoting the provisions of Order XXIII Rule 7 of the Civil Procedure Decree. The Rule reads as follows:-
(Emphasis added)
The question we ask ourselves here is whether the judge envisaged under the above provision covers a Regional Magistrate.
Article 134 (1) of the Constitution of Zanzibar
The Interpretation Decree, Cap 1 of the Laws of Zanzibar, also defines a magistrate. The definition under S. 2 (1) thereto reads:-
It follows that in the light of the Constitution of Zanzibar,
In our considered opinion, the answer to the above question is to be found in the Decree itself. S. 2 of the Decree gives,
“judge” means the presiding officer of a civil court.
Our view above is further fortified by the scheme of other provisions of the Decree. For example, Rule 4 of Order
Having said so, the question is whether it was proper for a magistrate other than Mr. Kazi to sign the decree in Civil Case No. 2 of 2005 which was the subject of the appeal to the High Court. Our answer to the question poses no difficulty. The decree was, no doubt, passed by the Regional Magistrates’ Court of Vuga in exercise of its original jurisdiction. Therefore, under Rule 7 above the “judge” (Mr. Kazi, RM) was required to sign the decree because he was the one who passed it. After all, the above Rule is couched in mandatory terms! We may add here that there was no room either, for invoking the provisions of Rule 8 of Order XXIII because there is no evidence that Mr. Kazi had vacated office at the time the invalid decree was signed by Mrs. Rabia Hussein Mohamed.
In
With that end in view, we hereby direct that the appeal be struck out from the register under Rule 82 with costs. ----”
So what happens to this appeal and the appeal to the High Court t
If the 1st respondent wishes, he is still free to pursue an appeal to the High Court by filing an application for enlargement of time to file a notice of appeal. He can do so after obtaining a valid decree of the Regional Magistrates’ Court at Vuga.
DATED at ZANZIBAR this 17th day of November, 2006.
J.A. MROSO
JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEALI certify that this is a true copy of the original.