20171017 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MJASIRI, J.A., MZlRAY, J.A., And NDIKA, J.A.) CIVIL APPEAL NO. 87 OF 2015 BARCLAYS BANK TANZANIA LIMITED ............................................. APPELLANT· VERSUS TANZANIA PHARMACEUTICAL INDUSTRIES LIMITED ........ FIRST RES PON DENT RAMADHANI MADABIDA ................................................ SECOND RESPONDENT SALUM SHAMTE .............................................•................. THIRD RESPON:DENT ZARINA MADABIDA ...................................................... FOURTH RESPONDENT (Appeal from the ruling of the High Court of Tanzania, Commercial Division at Dar Es.Salaam) (Nchimbi, ,L) dated 2 nd day of Jule 2014 in Commercial Case No. 147 of 2012 ····-·. --:::-;~ 1st August & 19th October 2017 -~ NDIKA J.A.: -~-~=--~·· -~:;.·• :~ This appeal originates from Commercial Case No. 147 of 2012 that the appellant instituted against the. respondents before the High Court, Commercial Division at Dar Es Salaam. The appellant's claim was essentially for recovery of loaned funds in resp_ect of several credit facilities it availed to the first respondent whose repayment was guaranteed by the second, third and fourth respondents. As it turned out, the suit did not go through trial as 1 . - the High Court (Nchimbi, J.) dismissed It with cos_ts. on 2nd June 2014 on the /""') ,._ ground that the appellant failed to prosecute its case when it came up for hearing on 14th May 2014. The Court took the_ ·view that the appellant's failure·to comply with the ma.ridatC?ry ._provisions _of rules 48 a~d 49 of the · ~figh Court (Commercial Division) Procedure Rules, · 2012 to file witness statements as evidence in chief in support of its claim within seven days of . . 4 . completion of mediation amounted to want of prosecution. Aggrieved, the . ~---' appellant now challenges the said dismif~1. • • I :\ At the hearing of the appeal, the Court had to deal, at first, with a i . • ·~-'" . . pren~inary objection take_n at the inst~ ~f M~: Dennis Michael Msafiri,. · learnled Counsel for the respondents,. nclic~·of which was given earlier in line . . wit~the prov;sions of rule -107 (f/ of the T~nz~nia Cou~ Of AppeaiRules,. 200~~1·· ("the Rules''). The ;aid-9reliminc1ry _opjection is grounded on four points as fa. lows: .' I .. . i ~- ..- -· ·- . :- "1. That the purported appeal is 'in/slfinceived in that the order I I I )dismissing the suit for default to prosecute is not appealable in l terms of the provisions- of sections 74, 75 and Order XL of the ~ lCivil Procedure Code and as such the order did not-constitute a _:_;j . ' -- . - '=1~ecree in view of the provisions of section 3 of the Civil· -jProcedure [CAP 33 R.E. 2002] as held in the case of Tanzania . ]Elect_ric Suppfy Company Limited. v Interbest -\:i ... :i 2 1 ... ·:·-~- -~- . · --=r;j ·.. ·_ -_-_ . _· . .. . . -· --- - - - 1 1----! i Investment Company Limite4 Civil Appeal No. 43 of 2012 (') ...... .(unreported). 2. That the Certificate of Delay at page 909 of the Record of Appeal is · incorr_ect, improper and erroneously certified consequently the appeal is time-barred and liable to . be dismissed with costs. See D. 7: Dobie & Co. {T} Ltd. v N.B,, Mwatebele [1992] TLR 152 at page 154D; National Social Security Fund v·New Kilimanjaro Bazaar Limited [2005] TLR 160 and Kantibhai M. Patel v Dahyabhai F. Mistry [2003] TLR 437. . 3. That the appeal is incompetent for contravening the mandatory provisions of Rule 96 (1) (d), (h) and (k) of the Tanzania Court of Appeal Rule~ 2009 as its record does not -~ contain r;:opies j of the proceedings of the application for leave ' to .. ·~.;,. appeal 1n Miscellaneous Civil Application No. 142 of- 2014 and ':- . ~ . . · :,::\ proceed(ngs transcribed from electronic recording· made on ·;~ t -~ 14.05.2f14 during.the hearing of Commercial Case No. 147 of S20f2 a1d dra~fl;, £!ffiif_C_cc5,0Uf!ht to be appealed against and for ~1 non-compliance with Rule 96 (3) and 96 (6) of the Rules. See ' : the case of Mining Agriculture & Construction Service Ltd_ j v Palefon .Constructio11- Limited, Civil Appeal No. 79 of ; . 12014 (uftreported). -... _., _•-~•· / - -:'!I ! ,~.:.-1~J 4. That the app€3?Jljsjncompetent as the erder graflting leave l _.: · ~- : ,: .· ·· · - . _,:_ '1was improperly (sic) as it contravened the mandatory -,\provisions of R'l:r/e 46 (1) of the Tanzania Court of Appeal Rule~ i 12009 Yn that the chamber summons was filed j 3 ~: - l . ... - ...... ·-· - · · · -· · -· · -· · - ·- · -- - - - - - .... i . '\ ·------ --~--~ -:----- -- contemporaneously. with the Appellant's Notice of Appeal · ~7 instead of being made after lodging a notice of appeal. See Selemani Seif v Yahaya . Delo and Fred Ged~ Civil Application No. 6 of 2015 (unreported) and Aloyce Msel/e v Consolidated Holding Corporation1 · Civil Appeal No. 11 of 2002 {unreported). " Before us, Mr. Msafiri canvassed all the four points of preliminary objection seriatim. Nonetheless, we find it convenient to deal, at first, with the third point, which, as reproduced above, contends in effect that the . 'f appeal is incompetent due to the incompleteness of the record of appeal. i It was Mr. Msafiri's argument on the third point of objection that the . \a-. appeal was incompeteot .~~cause the record of appeal that instituted the appeal was nJn-compHandwjth the provisions of r_ule 96 (1) (d), (h) and (k) l l · 1 i • of the Rules. !He :) elaborat~d.that ',., ··.7 '· . . . the ~ ·- said . record - -· - was deficient.due to its ! • • - - 1 ! omission of three mandat~ry documents: first, a copy of the proceedings -of · :,_. the High Court in respect of the application for leave to appeal to this Court in Miscellaneous Civil Appljcation No. 142 of 2014; secondly, a. copy of the ·· r •· L- . proceedings ttanscribed t.rqm . ~_lectronic recording made on 1~.05.2014 ~- ~ f ; - . -:..· ...,. '-=" • ,__ ,,,-~-during-the hea.ring of thei,mair;t,.su1t between· the parties"(i.e:, Cor-omercic)I . :_:,,- -;- . ·t Case No. 147 of 2012); an~ finally, a copy of the drawn order dated 2 nd June 2014 sought to be appeale~ against . . .L i ' 4 \ j -··'-----·-------· ---- ' f While acknowledging that the record of appeal contains the chamber summons, ruling and drawn order of the High Court granting leave to appeal~ Mr. Msafiri maintained that the proceedings in respect of that application for leave were omitted .. As regards the proceedings on the main suit, he contended that the record of appeal does not include the electronically recorded proceedings of the High Court dated.14th May 2014. It was his view that the proceedings appearing from page 900 onwards of the record of appeal, recorded by the trial Judge (Nchimbi, J.), constituted only a part, not li;i~-the whole, of the proceedings. He further argued that the record of appeal contains no drawn order that dismissed the appellant's suit on 2nd June 2014, i ·\ _ · .' ·r·-_ . . . from which the present appeal arises. Although he acknowledged that the . i • ~ 1 ;_;;;.}Z:Jt:.j:7f r:.. , • ..:.. _ - = - ·-· __ . i !, ' , ' . • . ' record contair,s, at pages vJ.7,.aQ~;t718, a c9py of the purpo~ed decree gf t_h_e ___ ~ ; ~::...-·; :-. .. ·.,_,.,.-_.,-;,.=•--~- ·- - - -·- ~-- ·- • Court dated d' June 2014,.dtwas nd I his view that the appellant ought to have-- , - included a copy of the dratirn~'6rdJr, ·not 1copy of a decree, because·thE{Riglf'-- - ' Court's dismissal of the suit by its ruling of 2nd June 2014 for want of prosecution d~d i not amount _·j to_·-•-,a"decree ~ . but an order. Counsel cited the i • unreported d~cisions of t~is Courf in Tanzania Electric Supply Company Limited v In~erbest In~stn,~~t Company Limited, Civil Appeal No. 43 of 2012 and CRDB Bank Limited v George M. Kilindu and Another, Civil 5 .·. f- ---- -· __. __ . 1· ----·----- ----------------··--------- ~----- ---·- -·------·- --- ---·-----··- . ------ ··- .. ----- ~- - --- . - ; i . Appeal No. 137 of -2008 to support his conclusion that the appeal was ,_.,,,.} incompetent due to the .incompleteness.of the record of appeal. On his-part, Mr. Dilip Kesaria, learned Counsel for the appellant, denied that the record of appeal was .. incomplete. He .contended thaf'the· omitted ' proceedings in Miscellaneous Civil Applicatio_n No. 142 of 2014 are not mandatory because. they do not have any bearing on the main suit but the . subsequent application for leave to appeal. It was, therefore, his view that . the omitted document of proceedings was irrelevant to ·the matters in controversy and that it was unnecessary for the proper determination of the pr_esent appeal. As regards the proceedings dated 14th May,_l0l4 in respect . . - ' I of the main s'.uit (i.e.; ·-Commercial Case No. 147 of 2012), he said that the . .i . . . . ' . said proceedi~gs r werePnof b'rnftted but was. :part of the record ··of ·appear as· t __, _. . -.. :,. ,. ., . - . .. _ : . ·-· . -- . -. -. shown betwe~n pagesi6S:8;::ahd:9o8:·of the reco~d. He finally maintained. that ~ '. ! .the order of the . ~- HigtP'e6ut't 1di'srrfis·srng the· ~~,-u-,t:is showri ::at ~pages 717- and' . 718 of the record. Rejoining, Mr. M'safiri-•emphasized that under rule 96 (1)· (d) of the -i' . . . . .' . : . Rules, the appe_llant was:'re'qi/i'recL to file all the p~oceedings induding those in . . I.·'· _r~spect of the japplicatioh~ f0rqeavEd~o· appeal. ~H~. said that it was ·not opeff to the appellant to choose~whicfr p'rbceedings to file:. 6 Before determining the points of controversy in the light of the le.arned () submissions of the parties, we find it necessary to examine the rel'evant provisions of rule 96 of the ~ules, which stipulate as follows: · "96.-(1) For the purposes of an appeal from the High Court or a tribunal, in its original Jurisdiction, the record of appeal shall, subject to the provisions of sub-rule (3), contain copies of the following documents: (a) [Omitted] (b) · -:-{Omitted] - - ......... ,.. , -.=.. ~!:::-.?-: (c) [Omitted] ' . ( d) :the record of proceedings; i. ' (e) (Omitte8Jcuru {~(HTlci,; - \ l C1'ii.:i-J .. c..t::~1?~>; ._/.: (f) !{Omitted] ·· ' ·i nci u(le,,_ l .·; -:. ·--· -- 1 (g) (Omitted] (h) the decree or order; (i) (j) (k) such other ·documents, if any, . as may be necessary---for the proper determination or fife 7 appeal, including any interlocutory proceedings which ,,..,,,...~, may be directly relevant L) save that the copies referred to in paragraphs (d), (e) and (f) shall exclude copies of any documents or any of their parts that are not relevant to the matters in controversy on the appeal. (2) [Omitted] (3) A Justice or Registrar of the High Court or tribunal may, on the application of any party, direct which documents 1 or parts of documents should be excluded from the i record, application for which direction may be made informally. 1 1 J j I j ( 4) [Omitted] . -- J ' . :,.~ (5) [O~itted] Sd;U 0iTH:.:t:c(j,:ri. - I , . -.~.~J ! . . ' . 1 --~ (6) wAere a ll8ftfft,~1fiij feferfed to-in rule 96 (1) andi2J -~ is omitted frdh12tb'i!J~ecord, ·the appellant may within 14 I i days of lodging the record of appeal without leave ! include the document in the record. "[Emphasis added] I 1 -1 . 1 As inte~reted in nu::;ous decisions of this Court, all documents I'· .: ..,.: ...-.-_;_. -;:-_ ·.· - - menfloned un~er rule 96 (1) are primary or core documents that must be :~ ! ,_· i ,,;:;:.;5,.;,;._,~~;\.. ,._;;,- ·i:.~; ·~ :~ ,, . ·1 l. inclujed in thf recorQ_of appeal in case of a first appeal to this Court. (See, . for irar:ice, tre unreported deGision in Said Salim Bakhresa &. Co. Ltd v ' 8 . -1 I t --.. ----.----· ·-- .-.. L. . I 1.. ! Agro Processing and Allied Products Ltd and Another, Civil Appeal No. 0 51 of 2011. See also Robert Edward Hawkins And Another v Patrice P. Mwaigomole Civil Application No. 109 of 2007 (unreported); and Haruna Mpangaos and 902 Others v Tanzania Portland Cement ~o Ltd., Civil Appeal No. 10 of 2007 (unreported) referred to in Said Salim Bakhresa & Co. Ltd (supra)). An omission of any part of a primary or core document renders the appeal incurably defective and therefore incompetent: (See, for . instance, Said Salim Bakhresa & Co. Ltd (supra), Jaluma General -.;~-~Supplies Ltd v Stanbic Bank (T) Ltd, Civil Appeal No. 34 of 2010 (both . unreported); Fedha Fund Limited and Others v George T. Varghese and Another, Civil Appea:I No. 8 of 2008; and Dodsal Hydrocarbons and 1 ~ Power Tanz~nia Limitetl ·pvr ·and--Two Others v Hasmuki Bhagwanji . ; . i ~ ' Masran, Civil !Appeal No. 936of ~ t . ~012}.=It ha·s further. been held that it is not i ...J is fJliJ'n .,-:r-,--~l -.· '"' --~ ... ' r -.~--;:-.;.• --~...J. - ] ; rf -/.,. . .·=> j .... ' ' • upon a party filing the re~ord of·appeal to ·decide ~which of the primary or core documents are relevant;Ji~·-.;.....:ii,/ for ·,.determination - . of the appeal and that if that party is in doLiibt as to wh~t documents or parts of the document to exclude t J ;~~t:-.. ~ t~ L --· - i .J i . from a recordJ he or she $hould apply to a Justice or Registrar of the High ! ' . i tT:;~. :~~1\.,., ~,_,;___, -.A··. ~- - Court or Tribu~al under ruie 96 (3) for a direction in that regard. (See Said Salim Bakhresa & Co. l Ltd (supra), Jaluma General Supplies Ltd . .i . . j' . (~upra),_ a_nci Ff.E!_clb~. fun~ Li_111jted a_nd Oth_ers {supra-}}. Alternativel.y;. a 9 ··- --- - - - - - - - - - - ·· party, having filed a record of appeal, could act under the provisions orf rule -~ ..,J 96 (6) of the Rules by filing, without leave, the omitted documents within fourteen days of lodging the record of appeal. In the light of the -above position· of the law, we are enjoined to determine whether the record of appeal lodged by the appellant is complete in terms of the requirements of rule 96 (1) of the Rules. As already indicated, it is the respondents' argument, which is contested by the appellant, that the record of appeal is deficient for omitting three documents: first, a copy of the proceedings of the 'High Court in _respect of the application for leave to ,appeal to· 'Ehis Court in Miscellaneous Civil Application No. 142 of 2014; secondly, a copy of the· proceedings transcribed from electronic recording made on 14.05.2014 during the hearing . .i ..· _.., __ . . . . . t/;;-'-: . . ' of the main suit between _the . parties (i.e., Commercial Case No. 147 of l. - ~~ ti~- J, '."z-·.- ...·-·-.. ~-:: ~::.:~. t - 2012); and fi~ally,- a copy of the drawn order dated 2nd June 2014 sought to be appealed against. ,I • ' . . ~- ' •- - • ' ·- •• il ! . When a<;fdressing l . .the . .-Court.regarding . the, first document, Mr. Kesaria - ~ • l •.._ • admitted that) the said docurneRt ·was mi~s1ng but claimed that it was ). irrelevant to t~e matters in controversy and that it was unnecessary for the - proper determiiiatlon ·of:tfie ·appeal. With respect~ we-·dTsagree· with him; We _:: . ._ ____ -····· -· ··-- -------··~- . ·--- ······-. ····· - 10 -------·-•···--•·.---·- - .. - - - - - - - - - - - - - -----·-· ----- -- · · are of the view that the aforesaid proceedings_ in the application for leave to {7 ~"'"".,. appeal to this Court are relevant because they have a bearing on the competence of the present· appeal, which qJuld only lie upon leave being· sought and obtained according to the law. More importantly; what matters is not whether the appellant considered the said document of proceedings relevant or necessary for the determination of the appeal. For the appellant had no right to decide to exclude the proceedings in the application for leave to appeal. If it was in doubt as to what documents or parts of the document to exclude fro,rn· a recot<d9:tdti:should have applied to a Justice or Registrar of the High Court under rule 96 (3) of the Rules for a direction in that regard. We find it instructive it©l,;reG:athwhat we stated in Said Salim Bakhre$a & Co. Ltd (supra) that thev,decisiQrhof the Court- in an application under rule 96. (3): : qnnn ?. r-~,..:'..'., '-·:·· - --, .' - . ''could best be made upon'tu/1 arguments /ram the parties. The rationale is that, now that since the said· documents are not . .;-'\-' :--:-: ' ' - ~.-- ·-, 1 before this Coult }tis· cf/ft/cult torthis Cai/rt, to decide whether or not they are relevant.~~B~;Jdes, it is onlyffaii that both parties . -,. -.~'"' =: ~ -! should be called upon to decide as to· Which document are necessary or relevant, because · as it is clear in the present 11 -·----·-· -· - - - - - - ---~----- 4 · proceedings/ what may be irrelevant to one parf:Yt inay be <:J relevant to the other, and even to the Court. 11 It is upon the foregoing reasoning that we find .that the record of appeal is incomplete for the o_mission -of the proceedings jn respect of the ·application for leave to appeal· to this Court (Miscellaneous Civil Application. No. 142 of 201_4). That infraction is ·a violation of rule 96 (1) (d) of the Rules. As regards the second document alleged to have been omitted in the record of appeal, which is a copy of the proceedings transcribed from . -~ : ' I eled,ronic recbrding made on 14.05.2014 during the hearing of the main suit • I be~een the :parties (i.e., Commercial case No. 147 of 2012), we wish to ex~,;ss at o1ce that;_w,e agreewith. Mr, Kesaria that the said ~ocument .is . pa~ of the r;ecord qf appeaL _As -rightly stated by Mr. Kesana, the said do_Cient apJears fn~.; J?,a~~688' to 708 of the record. We thus reject the apPj1ant's coinplaint ! t~ .. this regard. . . l As already indicated, the final document alleged to be omitted from the reco~d of appral is. the order which ought to have been extracted from the ~ .. . r~li1 of the ➔ igh Court th~t "dismissed the appellant's suit on 2nd June 2014, - ---:--i . ;. -~ ~ o •• • : ~-- ~ • .• ~ "I'. - • • • . -· fro4 which t~·e present, appeal arises. Mr. Kesaria denied that allegation, c::lair,j1ing that the said document was part of the record of appeal. In this 'II . . . . . - . _, -reg?):r1a,-Me-fefer-red·-the- Court-to- pages· 7-17 a:nd·7t8 of the· tecorcL But"what ]· . 12 j .. ·-·- --.. - l _. .,J _____________ -t ____ -· --- ---·· '·-··--· ----- ---·· _____ . ·····-· ···-· ~------· -------- ! I ! .. '• we find in that part of the record is not a copy of the drawn order but a copy ~) of a purported decree of the High Court dated 2 nd June 2014 stating In its operative part that when the said suit came up.for final disposal on 2 nd June 2014 "before Hon. G. Herbert, Deputy Registrar, in the presence of Mr. Kamala, Advocate .for the Plaintiffs and Mr. Polycarp, Advocate for the Defendants", it was "dismissed with costs, for want of prosecution. ✓r We .agree with Mr. Msafiri that the High Court's dismissal of the suit by its ruling of 2 nd June 2014 for want of prosecution did not amount to or result into a ' , decr~e but an order. For in terms of section 3. of the Civil Procedure Code l Act, \Cap. 20 RE 2002 a decree is the formal expression of an adjudication j that-iconclusively determines -the -rights and·· obligations of the parties but it -4 ..._::_:j : .. doe:~! not include, inte?-:_alia'f'atiy'order of ais'rnissar of a suit for default. On thislieasonin~, we arefof the view that what the appellant included- in the ""1 i recor!fd l of appeal . labeled as '~,Decree" - - -- was, - without - ·- -doubt, - a wrong document. . ! By dqing so, the appellant wrongly excluded from the record of appeal a copy I ' • \ I of thEe order of the High Courtextracted from the ruling rendered on 2nd June ~ ·' '. ·. . ,_ - ,· ,.~ ' ' ' ·. . 201.4~from which this appeal ha~ arisen. That sorry state of affairs amounts _j ' ' to a'lear violation of rule 96 (1) (h) of the Rul_es and we so hold. i ' _\we are mindful that rule 90 (1) of the Rules provides that an appeal is instit~ted . -;r. -·· -·-···by ---- lod:gJfl:9 ·- . . ir, _the appropriat~ .r~_gi~try tb_e re_cord of appeal., among 13 ·,; other documents. As we have held that the record of appeal by which this =} · appeal was instituted is ·defective on account of its incompleteness in violation of rule 96 (l} (d) and (h) of the Rules, we find that the appeal is inc:ompetent. ·· As our above determination is sufficient to dispose of this matter, we _· -do not think it is necessary beyond academic posturing to deal with the rest · of the points of preliminary objection. The appeal is accordingly struck out with costs due to its --1f:'::". : . ,~--"- -incompetence~. DATED;at DAR.ES SALAAM this lih day of October 2017. I certify 1that thi~ _is aj true copy of the original. _ _(' . _ ret:.:uf; .Gr 3Pr~ · · . ;: ~ . - \ .· ._r1-1h'.":l,:·r.•> f : r ~ . \ . . ,_. , -~ P.W. BAMPIKYA ... ~-S-ENibR DEPUTY REGISTRAR ·] COURT OF APPEAL 14