When the appeal was called on for hearing the Appellant made
an oral application for withdrawal of the appeal with leave to re-file under
rule 95(1) of the Tanzania Court of Appeal Rules, 1979. The oral application
was made because the order dismissing the suit, the subject of the appeal,
amounted to a decree in law and which ought to have been signed by the trial
judge (or successor judge) under Order XX, rule 7 of the Civil Procedure Code
but was signed by the deputy registrar. The same was invalid and this defect
rendered the entire appeal incompetent. The Respondent resisted the application
contending that the drawn order was not a decree and that the application to
withdraw under rule 95 (1) of the Rules was misconceived as no formal notice
had been filed and a copy served on the Respondent.