aggreko international projects limited vs triumphant trade consultancy services limited 2022 tzca 351 15 june 2022

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: KWARIKO, J.A., KEREFU, J.A. And KIHWELO, J.A.^ CIVIL APPEAL NO. 83 OF 2020 AGGREKO INTERNATIONAL PROJECTS LIMITED............ APPELLANT

VERSUS

TRIUMPHANT TRADE AND CONSULTANCY SERVICES LIMITED................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Mruma, J.) dated the 17th day of July, 2019 in Commercial Case No. 26 of 2017

RULING OF THE COURT 8th & 15th June, 2022 KEREFU, J.A.: Triumphant Trade and Consultancy Services Limited, the respondent herein, successfully sued Aggreko International Projects Limited, the appellant in the High Court of Tanzania (Commercial Division) at Dar es Salaam vide Commercial Case No. 26 of 2017 for breach of an oral agreement alleged to have been entered between the parties in connection with the emergency power project concluded by the appellant and Tanzania Electric Supply Company Limited (TANESCO) in Tanzania (the project). In that case the respondent claimed for payment of the sum of US$ 7,200,000.00 being a commission for consultancy services rendered to i the appellant in respect of the said project. The respondent also claimed for payment of interest on the said amount at the rate of 5% per annum or at the commercial rate from the date when the commission became due to the date of judgment, interest on the decretal sum at court's rate, general damages and costs of the suit. The material facts giving rise to the suit and later this appeal as obtained from the record of appeal indicates that, the respondent is a company incorporated under the laws of the United Republic of Tanzania dealing with consultancy services while the appellant is a company dealing with power generation projects under the laws of the United Arab Emirates. It was alleged that, in February,

2011 the appellant and the respondent entered into an oral agreement where the respondent was requested to act as an agent/consultant of the appellant in connection with the said project in Tanzania. The said oral agreement was, subsequently, to be reduced into writing. It was the respondent's claim that, under the said oral agreement, she was specifically requested to examine possibilities for the appellant to participate in a tender for the said project which was then expected to be floated in March, 2011. The respondent stated that, it was the term of their oral agreement that, upon succeeding in securing the said tender, the appellant would pay her a commission calculated at the rate of 6% of all capacity, standby and running charges as well as the mobilization and demobilization payments at the tune of US$ 120,000,000.00 received by the respondent from TANESCO in respect of the said project. The respondent went on to state that, upon entering into the said oral agreement, she forthwith, from March, 2011 started to render various consultancy services to the appellant up to December, 2015. In particular, the respondent stated that she participated in tender preparations, conducted site visits, investigations, custom clearance, negotiations and follow-up of the payment of US$ 80,000,000.00 bank guarantee and other operational matters connected with the implementation and

installation of the project. It was the respondent's contention that due to the above services provided by her, the appellant tender negotiations were completed and ultimately, on 21st June, 2011, a contract for 100MW was signed between the appellant and TANESCO for US$ 37,000,000.00. The respondent stated further that the said contract was extended for the year 2012, 2013, 2014 and 2015 where the appellant continued, indirectly and/ or impliedly recognized the respondent as the consultant/agent but refused or neglected to conclude and execute a written agreement for the consultancy services rendered or supply her with the statement of the 3 commission due. As such, the respondent decided to institute the suit as indicated above. It is on record that, upon being served with the plaint, the appellant disputed all the respondent's claim and categorically stated that at no point in time she entered into an oral agreement with the respondent. That, the respondent never rendered any consultancy services to the appellant in connection with the said project. As such, the appellant refuted the respondent's claim that she was entitled to the payment of the commission for the said project. It was the appellant's contention that, for provision of consultancy services on that project, she contracted one company by the name of Global Associates Ltd and the said company had no pending claims

against her. The appellant contended further that, the issue of capacity, standby and running charges together with mobilization and demobilization in respect of the said project were handled by the TANESCO itself and the appellant and the respondent were not privy to those arrangements. On that basis, the appellant prayed for the dismissal of the respondent's suit in its entirety with costs. Having heard the evidence from both parties, the High Court (Mruma, J.) decided the suit in favour of the respondent and the appellant was ordered to pay the respondent the following: (a) US$ 7,200,000.00 being a commission for the consultancy services rendered in connection to the power project; (b) General damages at the tune of US$ 1,000,000.00; (c) Interest of the decretal sum at the rate of 2% per annum from the date of filing of the suit to the date of judgment; (d) Interest at court's rate of 1% per annum from the date of judgment to the date of full payment of the decretal amount; and (e) Costs of the suit. The above decision of the High Court prompted the appellant to lodge the current appeal to express her dissatisfaction. In the memorandum of appeal, the appellant has raised twenty-four (24) grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this ruling, to reproduce them herein. It is on record that on

8th February, 2022 when the appeal was called for hearing, it was faced with a challenge of being accompanied with an invalid certificate of delay issued by the Registrar of the High Court on 11th March, 2020 that excluded the period for the purpose of appeal from 17th July, 2019 which was the date of judgment instead of 19th July, 2019 when the appellant requested for copy of High Court's proceedings. It was further noted that the appeal was accompanied with an incomplete record of appeal which had omitted to include two pages in the amended plaint and the electronic transcript of the High Court's proceedings. Thus, the Court invited the counsel for the parties to address it on the said anomalies. Both learned counsel for the parties conceded that the certificate of delay accompanied the record of appeal was invalid and that the two pages in the plaint together with the electronic transcript of the High Court's proceedings were missing in the record of appeal. Based on that concession, the Court (Kwariko, Maige and Mwampashi, JJA.) granted leave to the appellant, under Rule 96 (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to lodge a supplementary record of appeal, within thirty (30) days to include a valid certificate of delay, the missing two pages of the amended plaint and copy of the electronic transcript of the High Court's proceedings. Subsequently, on 8th

March, 2022 and pursuant to the order of the Court, the appellant duly lodged a supplementary record of appeal in this Court. However, the said record was confronted with a notice of preliminary objection raised by the respondent to the effect that, 'the appeal is fatally defective and liable to be dismissed on account o f there being two certificates o f delay in the supplementary record o f appeal that are diametrically opposed to each other.' At the hearing of the appeal, Mr. Gerald Shila Nangi and Omari Msemo, both learned counsel, appeared for the appellant and the respondent, respectively. As it has been the cherished practice of the Court, we had to deal with the preliminary objection first, before we could embark on the merits or demerits of the appeal. Having that in mind, we invited the learned counsel for the parties to address us on the preliminary objection raised by the respondent. Submitting in support of the preliminary objection, Mr. Msemo argued that the supplementary record of appeal lodged by the appellant on 8th March, 2022 is incurably defective for being accompanied by two different certificates of delay issued by the Registrar of the High Court on 11th March, 2020 and 28th February, 2019 respectively. Amplifying on his point, the learned counsel referred us to pages 14 and 16 of the supplementary record of appeal and argued that the said certificates of

delay are referring to different dates of the appellant's letters requesting for copy of the High Court's proceedings in Commercial Case No. 26 of 2017. He argued that, it is a principle of the law that two certificates of delay cannot co-exist in one appeal. To support his proposition, he referred us to the previous decision of the Court in Maneno Mengi Limited & Three Others v. Farida Said Nyamachumbe & Another [2004] T.L.R. 391, where the Court considered a preliminary objection that challenged the competence of an appeal for being accompanied by two different certificates of delay. The Court among others, stated that there cannot be two certificates of delay concurrently applicable in respect of the same matter. Thus, it sustained the objection and struck out the appeal for being time barred. On that basis, Mr. Msemo invited us to also sustain the preliminary objection and struck out the supplementary record of appeal together with the entire appeal, with costs, for being incompetent. Upon being prompted by the Court as whether the facts obtained in Maneno Mengi Limited (supra) are applicable to the facts and the circumstances of the current appeal on account of the first certificate issued on 11th March, 2020 having been declared invalid by the Court, Mr. Msemo, though conceded that the facts of the two appeals are distinguishable, he maintained that the principle derived

in that appeal is applicable in the instant appeal. He insisted that, it was not proper for the appellant to include the invalid certificate of delay in the supplementary record of appeal. It was his argument that, since the supplementary record was lodged contrary to the order of the Court dated 16th February, 2022, the same is defective and has rendered the entire appeal incompetent. He thus urged us to disregard the supplementary record which, he said, was lodged contrary to the order of the Court. That, if the supplementary record will be disregarded then, the record of appeal is incomplete hence the entire appeal is incompetent. On the strength of his submission, he urged us to sustain the preliminary objection and strike out the appeal with costs for being incompetent. In response, Mr. Nangi resisted the preliminary objection that it was without merit. He strongly disputed what was submitted by Mr. Msemo by arguing that there are no two certificates of delay in the supplementary record because the first certificate dated 11th March, 2020 was already declared invalid by the Court on 16th February, 2022. He contended that, the said certificate found its way in the supplementary record of appeal as an annexure to the appellant's letter dated 24th February, 2022 directed to the Registrar of the High Court to convey the gist of the Court's order and requested, among others, to

be issued with a valid certificate of delay. He thus challenged the submission of his learned friend by arguing that there is only one certificate of delay in the supplementary record which was issued by the Registrar of the High Court on 28th February, 2022 in compliance with the Court's order. He thus distinguished the case of Maneno Mengi Limited (supra) cited by Mr. Msemo by arguing that, the facts in that case are not relevant to the current appeal. He said, in that appeal the issue was on two certificates of delay both issued by the Registrar prior to the hearing of the appeal and the second certificate purported to extend time to institute the appeal, while in the current appeal the first certificate issued by the Registrar was declared invalid and the second certificate was issued in compliance with the Court's order. He further contended that even the principle emanated from that appeal is inapplicable in the current appeal. He however argued that, if the Court will find that it was not proper for the appellant to include the impugned certificate in the supplementary record of appeal, the same is not fatal because, the said certificate had already been declared invalid by the Court. He thus invited the Court to be pleased to invoke the principle of overriding objective under section 3A of the Appellate Jurisdiction Act, [Cap. 141 R.E 2019] (the AJA), which is geared

towards expeditious and timely resolution of all matters. Finally, Mr. Nangi urged us to overrule the preliminary objection with costs and proceed to hear the appeal on merit. 10 In a brief rejoinder, Mr. Msemo challenged the contention of his learned friend that the defects identified in the supplementary record are curable under the overriding objective principle. He contended that the said principle is not designed to disregard the mandatory provisions of the procedural law. He thus reiterated his previous prayer by urging us to sustain the preliminary objection and strike out the appeal with costs. Having considered the arguments for and against the preliminary objection advanced by the learned counsel for the parties, the issue for our determination is whether the supplementary record is defective and if so, whether the defect is fatal to the appeal. We wish to begin by stating that, we are aware of the settled principle referred to us by Mr. Msemo that two certificates of delay cannot co-exist in one appeal. There are numerous decisions of this Court to this effect and one of them has been cited by Mr. Msemo, but we also wish to add on the list to include Godfrey Nzowa v. Selemani Kova & Another, Civil Appeal No. 3 of 2015, Vodacom Tanzania Public Limited Company v. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 117 of 2019 and White Star

Investment li and Another v. Zein Enterprises Company Ltd, Civil Appeal No. 114 of 2019 (all unreported). We are mindful of the fact that in his submission, Mr. Nangi argued that the above principle is not applicable in the circumstances of this appeal. We are in agreement with him on this point. We say so because, it is on record that, on 8th February, 2022 when this appeal was called for hearing, the Court, among other things, found that the certificate of delay issued by the Registrar of the High Court on 11th March, 2020 was invalid for failure to indicate the correct date when the appellant requested for the High Court's proceedings in Commercial Case No. 26 of 2017. It is also not in dispute that, upon making such a finding, the Court, on the same date, granted leave to the appellant under Rule 96 (7) of the Rules to approach the Registrar of the High Court to obtain a valid certificate of delay. That, in its letter dated 24th February, 2022, the counsel for the appellant informed the Registrar of the High Court the gist of the Court's order and indeed requested to be availed with a valid certificate of delay. The said letter, which was also included in the supplementary record of appeal, attached the invalid certificate of delay which is the subject of the respondent's objection where Mr. Msemo 12 implored us to believe that the appeal is accompanied by two certificates

of delay. With respect, we are unable to agree with the submission of Mr. Msemo on this point. In our considered view, and again, as rightly submitted by Mr. Nangi, the said certificate having been declared to be invalid, it has no legal effect and it is as good as it does not exist. In that case and as argued by Mr. Nangi, even the case of Maneno Mengi Limited (supra) is not applicable in the circumstances of this appeal, because in that appeal there were two different certificates of delay issued by the High Court Registrar to support the appeal which is not the case herein. Before we conclude, we wish to state that we have observed that in his submission, Mr. Msemo, among others, he challenged the competence of the supplementary record for being accompanied by two different certificates of delay. With profound respect, we find the submission by Mr. Msemo on that aspect to be legally untenable because, in terms of Rule 96 (7) of the Rules, documents which are included in the supplementary record of appeal are intended to complete the record of the appeal itself and not otherwise. Likewise, the certificate of delay is for the purpose of 13 computing the period of instituting an appeal and not the supplementary record of appeal. As such, we find the argument of Mr. Msemo under the circumstances, unfounded. In the event, and for the foregoing reasons, we do not find merit in the preliminary objection raised by the respondent. The same is hereby overruled. Costs to abide the outcome of the appeal. DATED at DAR ES SALAAM this 14th day of June, 2022. M. A. KWARIKO

JUSTICE OF APPEAL R. J. KEREFU

JUSTICE OF APPEAL P. F. KIHWELO

JUSTICE OF APPEAL The ruling delivered this 15th day of June, 2022 in the presence of Mr. Omary Msemo, counsel for the appellant and Ms. Jaqueline Mazula holding brief for Mr Gerald Nangi, counsel for the respondents, is hereby certified as a true copy of the original.