haruna mpangaos others vs tanzania portland cement co ltd 2008 tzca 61 10 march 2008

m THE COURT OF APPEAL QF TANZANIA AT PAR ES SALAAM f CO RAN!: MSOFFE. 3.A., KILEO, 3. A., And KALEGEYA, 1. A.^ C IVIL APPEAL NO. 10 OF 2007 HARUNA M PAN GAOS AND 902 OTHERS................................ APPELLANTS VERSUS TAN ZAN IA PORTLAND C E K E NT CO. LTD ..... ...................RESPONDENT (An Appeal from the ju d g m e n t and Decree of th e High Court of Tanzania at Dar es Salaam ) (Hanento, 3JO dated 26th day of October, 2006 in Civil Case No. 173 of 2003 RULING OF T H E C O U R T 25th February, 2003 & 13th March, 2008 MSOFFE, 1. A: This is a dispute over pieces of land comprising of Plots Numbers 1, 4, and 1, Wazo Hill Area, otherwise referred to rs Tanzania Por'‘l ...u' Cement Company's Industrial Piots at Wazo Hill, located at Tegeta and \ -* Boko areas within Kinondoni District in Dar es Salaam Region. The land is currently surveyed and owned under a Right of Occupancy by virtue of Certificate of Title No. 42336. In the High Court of Tanzania at Dar es Salaam the respondent Company successfully sued the appellants for, among other things, a declaration that it is the owner of the land in dispute. Aggrieved, the appellants preferred this appeal. For purposes of our decision in the matter, the following brief background information is necessary. The record of appeal was lodged on 1/2/2007 without a properly dated decree. On 26/11/2007 Mr. Mabere Marando wrote a letter Ref. No. MM/HM/2007/1 to the Registrar of the High Court requesting for a properly dated decree. The letter was copied to Law Associates (Advocates) - the firm of advocates representing the respondent Company. On 4/12/2007 the High Court extracted a properly da'ed decree. Two days later, i.e. On 6/12/^.u07, Mr. Marando lodged a supplementary record of appeal containing the properly dated decree. When the appeal was called on for hearing the Court had to deal with a preliminary objection notice of which was given earlier in terms of Rule 100 of the Court of Appeal Rules, 1979. The objection is that the appeal is incompetent because the decree, the subject of the appeal, is invalid. In arguing the objection, Mr.Rosan Mbwambo, learned advocate for the respondent Company, was of the general view that a decree is a vital document under Rule 89 (1) (h) of the Court of Appeal Rules, 1979. Since this vital document was not present at the time of filing the record of appeal the appeal is incompetent notwithstanding the effort made by the appellants in filing the supplementary record of appeal. Furthermore, Mr.Mbwambo went on to submit, under sub - rule I of N Rule 92 only a respondent can file a supplementary record of appeal if the record of appeal is defective or insufficient. Under sub-rule (3) thereof, an appellant does not enjoy the same right. Under this sub-rule an appellant can only file a supplementary record of appeal containing "such other documents" as may be necessary for the further determination of the appeal as provided for under item (k) of sub-ru!e ( I ) o f R y le 89. A supplementary record of appeal containing a properly dated decree is not among the sort of "such other documents" envisaged under the Item, Mr. Mbwambo concluded. We wish to observe from the outset that the contents o f a record of appeal are spelt our under Rule 89 (1) and (2) of the Court Rules. For our purpose sub- rule (1) is the most relevant. The sub-rule provides as follows:- 89 - (1) For the purposes o f an appeal from the High Court in its original jurisdiction, the record o f appeal shall, subject to the provisions o f sub-rule (3),contain copies o f the follow ing documents:- s (a) an index o f ai! the documents in the record with the numbers o f the pages at which they appear: (b) a statem ent showing the address for service o f the appellant and the address fo r service furnished by the respondent ana\ as regards any respondent who has not furnished an address for service on him o f the notice o f appeal; (c) the pleadings; (d) the trial judge's notes o f the hearing; (e) the transcript o f any shorthand notes taken at the trial; (fj tilt: affidavits read and a ll documents put in evidence at the hearing, or, if „uch docu.^ nts are not in the English language, their certified translations; (g) the judgm ent o r order; (h) the decree or order; (0 the order, if any, giving leave to appeal; (j) the notice o f appeal; N (k) such other documents, if any, as m ay be necessary for the proper determination or the appeal, including any interlocutory proceedings which m ay be directly relevant, save that the copies referred to in paragraphs (d),(e) and (f) sh all exclude copies o f any documents or any o f their parts that are not relevant to the m atters in controversy on the appeal. Under Rule 83 (1) the record of appeal must be lodged in the appropriate registry within a pe.-iod of sixty days from the date of the lodging of the notice of appeal, subject to the exception therein. If the record of appeal containing the essential documents mentioned under Rule 89 (1) is not so lodged the appeal will be held to be incompetent. Under Rule 89 (1) one of the essential documents to be contained in a record of appeal is a copy of decree or order appealed from. From the authorities of this Court it is now settled that non- incorporation of a copy of decree or incorporation of a defective decree renders the appe-1 incompetent. In the case of F ortu n atu s Masha v William Shija and Another (1997) TLR 41 this Court stated:- Howevsr, we are o f the view that where by reason o f non-extraction o f the decree or order, as in this case, the appeal is rendered incom petent; the issue o f insufficiency or incom pleteness does not reaiiy arise. The position that arises is sim ply one o f non­ existence o f tne appeal. Because insufficiency or incom pleteness connotes som ething which is in existence and which can be improved upon, say by adding to it A n in co m p e te n t a p p e a l is one in w h ich in la w d id n o t com e in to e x iste n ce a lth o u g h e ffo rts w ere m ad e to b rin g it in to e x iste n ce . In su ch circu m sta n ce s th e re fo re , one ca n n o t p ro p e rly ta lk of th e re b e in g an in s u ffic ie n t o r in co m p le te a p p e a l w hich one can im p ro ve upon b y \ filin g a su p p le m e n ta ry record f b e ca u se in la w n o a p p e a l cam e in to e x iste n ce in th e fir s t in sta n ce > th e re w as o n ly a p u rp o rte d a p p e a l i f yo u w ish. (Em phasis supplied) It is settled law tha: a decree which bears a date different fro™ the date of the impugned decision is defective and invalid. See, for instance, Abdailah Rashid Abdaliah, Civil Appeal No. 94 of 2006 (unreported), Ami (Tanzania) Limited v Ottu on behalf of P.L. Assenga and 10S Others, Civil Application No. 76 of 2002 (unreported), and Uniafrico Limited and two Others v ExiirT Bank (T) Limited, Civil Appeal No. 30 of 2006 (unreported). There is no dispute that the decree in the record of appeal filed on 1/2/2007 is defective. In essence Mr. Marando concedes that much hence the effort to file the supplementary record of appeal c o n t a i . (g a properly dated decree. The crucial question in this appeal is whether or not the supplementary record of appeal validated the already defective N record of appeal. In answering the above question it occurs to us that the starting point is a close examination of Rule 92, particularly sub- rule (3) thereof. Rule 92 reads 92 - (1) I f a respondent is o f opinion that the record o f appeal is defective or insufficient for the purposes o f his case, he m ay lodge in the appropriate registry four copies o f a supplem entary record . o f appeal containing copies o f any further documents or any additional parts of documents which are in his opinion, required for the proper determination o f the appeal. (2) The respondent sh a ll as soon as practicable after lodging a supplem entary record o f appeal serve copies o f it on the appellant and on each other respondent who has com plied with the requirem ents o f Rule 79. (3) An appellant may a t any tim e lodge in the appropriate registry four copies o f a supplem entary record o f appeal and shall \ as soon as practicable after doing so serve copies o f it on every respondent who has com plied with the requirements o f Rule 79. (4) A supplem entary record o f appeal shall be prepared as nearly as m ay be in the same m anner as a record of appeal. We wish to observe that the above rule is similar to Rule 89 of tiic defunct Court of Appeal for East Africa Rules, 1972 which used to read as follows;- 89 - (1) I f a respondent is o f opinion that the record o f appeal is defective or insufficient for the purposes o f his case, he m ay lodge in the appropriate registry four ' copies u, a supplem entary record o f appeal containing copies o f any further docum ents or any additional parts o f documents which are, in his opinion, required for the proper determination o f the appeal. (2) The respondent sh a ll as soon as practicable after lodging a supplem entary record o f appeal, serve copies o f it on the appellant and on each other respondent who has com plied with the requirem ents o f rule 78. (3) An appellant m ay a t any time lodge in the appropriate registry four copies o f a supplem entary record o f appeal and shall as soon as practicable thereafter serve copies o f it on every respondent who has com plied with the requirem ents o f rule 78. (4 ) A supplementary record o f appeal sh all be prepared as nearly as m ay be in the same manner as a record o f appeai.. It seems to us that the catch - word in Rule 92 of the Court Rules, and Rule 89 of the defunct Court of Appeai for East Africa Rules for that matter, is "su p p le m e n ta ry''’. In the Oxford Advanced LS&rners Dictionary of Current English, 6th Edition, the word "supplem ent^ is defined as:- "Provided in addition to som ething else in order to im prove or com plete it" So, a supplementary record of appeal presupposes the existence of a complete record of appeal lodged by an appellant. Complete in the sense that it contains ail the essential documents itemized under Rule \ 89 (1). Under Rule 92 (1) the use of the words "containing copies of any further documents or additional parts of documents which are, in his opinion required for the proper determination of the appeal" mean in effect that the supplementary record of appeal may be lodged for the purpose of making good deficiencies in the record of appeal not affecting the competence of the appeal. A supplementary record of \ i appeal should, therefore, add something to the otherwise complete record of appeal. In the case of Kiboro v Posts and Telecommunications Corporation, (1974) EA 155, the defunct Court of Appeal for East Africa had occasion to discuss the import and sense of a supplementary record under Rule 89 {supra). In that case the appellant had filed a supplementary record which did not contain a copy of the decree appealed against. Before the appeal was heard, the appellant filed another record of appeal containing a proper decree arguing that he was entitled to file it under Rule 89 (3) {supra). The Court held that a supplementary record of appeal cannot contain one of the essential documents required by the Rules. Law, Ag. V. P. stated:- \ "The meaning o f a supplem entary record o f appeal is made d ear in r. 89 (1). It m eans a record containing copies o f 'further documents or any additional parts o f documents which are... required fo r the proper determination o f the a p p e a l T h e word 'fu rth e r" mustr in m y opinion; mean further to i the documents required by r. 85 (1) to be contained in the record o f appeal. Any other construction w ould mean that any appellant■, who h a f i l e d a . . — ord om itting one o r more o f the basic documents required by r. 85 (1) couid, a t any tim e before the hearing, file a fresh record containing those documents, without having to apply 13 to the court for an extension o f tim e under r. 4. I f M frM uite is right, a record o f appeal could be file d in complete disregard o f r. 85 (1), and the m atter put to right by filing c new record complying with that rule at any tim e before the hearing. I cannot accept such a submission. I have no doubt that the record filed ju s t before the hearing o f this appeal was not a supplem entary record, but a re- nling out u, ume o f the original record containing one o f the basic documents \ om itted from the original record, and that the appeal is incom petent unless this court extends tim e either for filing the copy o f the decree as p art o f the original record, or for filing the fresh record as the record o f appeal in place o f the original csfective record, as prayed in (a) o f Mr. Muite's am ended appHfation. Before the court can do this, it must I be satisfied that there is "sufficient reason" for granting indulgence ...." In similar vein, Mustafa, J. A. stated " I am satisfied that a supplem entary record, In term s o f r. 89 o f the Rules, can only include additional or further documents, which are, in the opinion o f an appellant or respondentr required for a proper determ ination o f an appeal. It supplem ents the original record o f appeal, which has to be filed within the prescribed time, and which has to contain the basic documents as provided in rule 85 o f the Rules. I f a basic document; like a copy o f the decree, is om itted \ from the original record o f appeal that cannot be introduced into the record by filin g a supplem entary record o f appeal, when the prescribed Lime has expired. In this case the appellant could only file the om itted decree out o f time with leave;,.... To succeed he m ust show I "'sufficient reason Applying M a sn s and Kiboro, and also the interpretation of Rul'e 92, to this case it is evident that the defect in the record of appeal filed on 1/2/ 2007 was not cured under Rule 92 (3) by the supplementary record of appeal filed on 6/12/2007. The copy of a valid decree ought to have been filed with the record of appeal within the time prescribed under Rule 83 (1) of the Court Rules. If such time had expired the appellants ought to have resorted to Rule 8 for extension of time either for filing the copy of the decree as part of the record filed on 1/2/2007 or for filing the fresh record as the record of appeal in place of the original defective record. s All said and done, we uphold the respondent on the preliminary objection. The appeal, being incompetent, is accordingly struck out with costs. In the justice of this matter however, we think we should not end up there. We realize that for quite some time appellants have always tt resorted to Rule 92 (3) as a remedy in filing supplementary records of appeal containing valid decrees where the already filed 'records of appeal had no valid decrees. Part of the reason for doing so was a result of this Court's decisions in a number of cases advising appellants to do so. For instance, in f\f3C Holding C orp o ratio n v (1) M azige Mauya (2) Mwanahamisi M. Bilaii, Civil Appeal No. 36 of 2004 (unreported; in a situation where the copy of the decree in the record was invalid for being signed by the District Registrar the Court had this to say:- "With regard to pending appeals not yet scheduled for hearing, parties would be w ell advised to resort to Rule 92 (3) o f the Court o f Appeal Rules, 1979\ to rectify defects and regularize the same in conform ity with the law". \ We are of the view that if the attention of the Court in Mauya, and in other cases of similar nature, had been brought to Kiboro, the advice would have been to the effect that appellants should resort to Rule 8. It is for this reason that we think it is fair to adopt the wisdom ;~ Robert John M ugo (Administratonof the Estate of the late 3ohn Mugo Maina) v Adam MolIeS, Civil Appeal No.2 of 1990 (unreported) where, in an issue revolving around a defective decree, vthe .Court stated:-- "But bearing in mind the fact that practically a ll the judges o f the High Court have consistently om itted to com ply with the requirem ents o f Order 39 Rule 35 (4), and that the Court o f Appeal has also consistently until now failed to notice the om ission since it was established over ten years ago, thereby encouraging members o f the legal profession to believe that a ll was in order with the decree in appeal, we think ju stice • demands that the appellant be put in a position to re-instiiute his appeal to this court should he so wish Therefore, adopting the wisdom in Mugo, the appellants are accordingly directed to re- institute the appeal if they so wish without further payment of Court fees. We will hasten to add, however, that re- k t instituting the appea1 will be subject to compliance with Court Rules - See Robert Jo h n M ugo (A d m in istra to r of the Estate'of the late John Mugo Mains) v Adam Mallei, Civil Appeal No. 15 of 1991(unreported). We order accordingly. DATED at DAR ES SALAAM this 10th day March, 2008. J. H. MSOFFE JUSTICE OF APPFj&f E. A. KILEO jU S T IC E OF APPEAL Oo L. B. KALEGEYA Ju s t i c e o f a p p f a i I certify that this !s a true copy of ^