20121219 TZCA Dar es Salaam

1 C,L(- "4Qj""i s -c 2QQi IN THE COURT OFAPPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, J.A., MANDIA, J.A., And KAIJAGE, J.A.) CIVIL APPEAL NO. 93 OF 2012 DODSAL HYDROCARBONS AND POWER TANZANIA LIMITED DODSAL RESOURCES AND MINING ITILIMA . .................... APPELLANTS BUSILILI (TANZANIA) PVT LTD DODSAL RESOURCES AND MINING ITING (TANZANIA) PVT LTD VERSUS HASMUKH BHAGWANJI MASRANI ......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam (Makaramba, J.) dated the 1st day of June, 2012 in Commercial Case No. 42 of 2011 RULING OF THE COURT 14 & 21 December, 2012 KAIJAGE, J.A.: Before this appeal came for hearing on 14/12/2012, Mr. Kessaria, learned advocate for the Respondent had given Notice on 16/11/2012 under Rule 107(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) raising a Preliminary Objection to the hearing of the appeal on the following ground namely; 2 "That, the record of appeal is defective and in complete in contra vent/on of the mandatoty requirements of rule 96(1) (c) and (d) of the Tanzania Couft of Appeal Rules, 2009 thereby rendering the appeal incompetent." When the appeal was called on for hearing, Mr. Kessaria rose to amplify on the ground upon which the objection is based by submitting that the record of appeal has been lodged in violation of the mandatory provisions of Rule 96(1) (c) and (d) of the Rules. He contended that several pages of an exhibit, which is part of the plaintiffs' (now appellants) pleadings and which has been referred to extensively in the amended reply to the Written Statement of Defence, are missing from the record of appeal as lodged. He said, moreover, that plaintiffs' amended reply to the Written Statement of Defence contains abOut 356 typed pages, but only 11 pages have been incorporated in the record of appeal. Referring to FEDHA FUND AND TWO OTHERS vs GEORGE T. VARGHESE AND ANOTHER, Civil Appeal No. 8 of 2008 and JULUMA GENERAL SUPPLIES LTD vs STANBIC BANK (T) LTD, Civil Appeal No. 77 of 2011 (both unreported), Mr. Kessaria maintained that the 3 decision to choose documents relevant for the determination of the appeal is not optional on the party filing the record of appeal save in situations where such documents are excluded under Rule 96(3) of the Rules. Learned counsel for the respondent has further submitted that the record of appeal is incomplete and defective for another ancillary reason. He pointed out that the proceedings taken and recorded on 29th March, 2012 and upon which the decision of the High Court dated 1/6/2012 is based, have not been incorporated in the record of appeal as lodged. He concluded by submitting that the exclusion of the said pleading and the record of proceedings in the record of appeal is fatal and has rendered the appeal incompetent. He urged us to strike out the appeal. The appellants had the services of Dr. Masumbuko R.M Lamwai and Mr. Amour Said Khamis, learned advocates. Dr. Lamwai readily conceded that the so called exhibit annexed to the amended reply to the written Statement of Defence is not included in the record of appeal. He was also quick to state that it was wrong on the part of the appellants to 4 refer the missing document as an exhibit when, in fact, it had not been admitted in evidence. However, Dr. Lamwai contended that the so called exhibit cannot be construed to be a pleading as defined under Order 6 rule 1 of the Civil Procedure Code and, that it cannot be a document' required under Rule 96(1) (c) of the Rules to be included in the record of appeal. The so called exhibit, he argued, is a mere annexture to the amended reply to the Written Statement of Defence and which the appellants craved no leave to refer to it. Upon this submission, Dr. Lamwai was of the view that the appellants have not violated the requirement under Rule 96(1) (c) of the Rules. In the alternative, Dr. Lamwai submitted that as long as it is accepted that the record of appeal contains pleadings, the appeal cannot be rendered incompetent merely on the ground that the record of appeal contains incomplete pleadings. He stressed that such a defect could be remedied by the respondent filing a supplementary record of appeal under Rule 99(1) of the Rules. 5 On the issue touching on the violation of Rule 96(1) (d) of the Rules, both learned counsel for the appellants have argued that what has been incorporated in the record of appeal, are recorded proceedings supplied to the appellants by the High Court upon request. When asked by this court as to why the appellants, after instituting the appeal, were not minded to take remedial measures under Rule 96(6) of the Rules, Dr. Lamwai responded by stating that since the respondent had already taken objection on the competence of the present appeal, the appellants had to refrain from acts designed to defeat the basis of that objection. We accept that arguments and submissions put forward on behalf of the parties relating to non-compliance with Rule 96(1) (c) of the Rules are not without significance, but we prefer to base our decision in this Ruling on the arguments and submissions touching on non-compliance with Rule 96(1) (d) of the Rules. We commence by examining the relevant provisions under Rule 96 of the Rules in the light of the relevant material before us. The said Rule provides, inter a/ia; "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 pro visions of sub - rule (3), contain copies of the following documents - (a)................................................. (b)................................................. (c) The pleadings; (d)The record of proceedings; ................................................... A justice or Registrar of the High Court or tribunal, may, on the application of any party, direct which documents or parts of the document should be excluded from the record, application for which dfrection may be made informally. Each copy of the record of appeal shall be certified to be correct by the appellant or by any person entitled under Rule 33 to appear on his behalf. 7 (6) Where a document referred to in rule 96(1) and (2)15 Omitted from the record, the appellant may within 14 days of lodging the record of appeal without leave include the documents in the record." It is significant to note here that the provisions of Rule 96(1) (d) are couched in mandatory terms. Under this rule, the record of proceedings isa vital document which must mandatorilyform part of the record of appeal and an omission to include it in the record renders the appeal incompetent. (See; Fedha Fund Limited case, (supra), Jalaludin Jaji Jamal vs Shaffin Jalaludin Haji Jamal, Civil Appeal No. 55 of 2003 (unreported). From the record, it is evident that the arguments and submissions made on behalf of the parties in the course of proceedings for the hearing on 29th March, 2012, formed the basis upon which the decision of the High Court which is appealed against was made. Undoubtedly, these proceedings are vital for the proper determination of the present appeal. However, it is this vital document containing the proceedings for the hearing on 291h March, 2012 which is missing from the record of appeal. 8 Apart from other documents, the record of appeal as lodged, is comprised of documents containing certified proceedings for the 6th August, hearing on various dated in the year, 2011 and those on 2012. It also contains transcripts of the judge's notes taken on 29th March, various dates, including those taken and recorded on 2012. Transcripts of judge's notes are not recorded proceedings mandatorily required under Rule 96(1) (d) of the Rules to be included in the record of appeal. In any case, such transcripts are irrelevant for the proper determination of the present appeal. The appellants have not suggested, and we see nothing in the record which indicates that they had at any time applied and obtained leave under Rule 96(3) of the Rules to exclude, from the record of appeal, the vital document relating to the proceedings conducted by 29th March, 2012. Under Rule 96(3) of the Rules, it the High Court on is either a Judge or a Registrar of the High Court who, on an application by a party, has to direct which documents to be excluded from the record of appeal. Since the appellants did not obtain such leave, it was mandatory for them to abide to the dictates of Rule 96(1) (d) of the Rules. 9 . Rule 96(6) permits the appellant, without leave, to include in the record of appeal a document or documents that might have been omitted at the time the appeal is instituted. In his rebuttal submission, Dr. Lamwai submitted that the appellants could not have taken advantage of Rule 96(6) of the Rules for fear of pre-empting the objection whose Notice was lodged on 16/11/2012. With respect, we are unable to buy Dr. Lamwai's submission on this aspect of the case in view of the facts we will attempt to unveil herein below. On one hand, we agree with Dr. Lamwai in regard to the principle that when a preliminary objection to an appeal has been lodged in accordance with Rule 107(1) of the Rules, it is improper for the appellant to seek to defeat the objection by acts designed to remove its bases. (See; Minister for Labour And Youth Development And Another VS Gasper Swal And 67 Others [2003] TLR 239). However, it is clear from the record that while the appellants lodged the record of appeal on 16/10/2012, the respondent lodged the Notice of Objection on 16/11/2012. It follows, therefore, that the appellants had no any legal inhibition to include the omitted record of 10 proceedings in the record of appeal within the period of 14 days prescribed under Rule 96(6) of the Rules. In the circumstances, the appellants could not have defeated the basis of the respondent's objection if they were minded to act under the said Rule. Further facts gathered from the record exhibits some laxity on the part of the appellants for which the Court is not to blame. It is apparent that the appellant had requested to be supplied with certified copies of proceedings, Rulings and Orders in the High Court Commercial case No. 42 of 2011. According to the certificate of delay issued by the Registrar under Rule 90(1) of the Rules, it appears that the documents requested were supplied to M.R.M 41h October, 2012. It also appears that Lamwai Advocates on pursuant to the requirement under Rule 96(5) of the Rules, both learned counsel for the appellants issued and signed a certificate dated 15/10/2012 certifying that the copies of documents comprised in the record of appeal as lodged are correct. From 4th October, 2012 when the Registrar of the High Court supplied the documents requested to appellants counsel until 11 16/10/2012 when the record of appeal was lodged, there, was sufficient time for verification of the documents before certification. We take note, for example, that the appellants requested to be supplied with certified copies of proceedings. They were, instead, supplied with uncertified copies of transcripts of the Judge's notes relating, particularly, to the hearing on 29/3/2012. We think that such lapses should not have escaped an eye of a diligent counsel before issuing and signing a certificate, pursuant to Rule 96(5) of the Rules, that the record of appeal as lodged is a true copy of the original record of proceedings, ruling, order and exhibits. Be that as it may, we are of the settled view that the Ruling and Order appealed against arose from the proceedings conducted by the High Court on 29/3/2012, but which are missing from the record of appeal lodged on 16/10/2012. We earlier observed that the missing document is vital for the proper determination of the appeal. The document has not been excluded in terms of Rule 96(3) of the Rules. So, the omission to include the said vital document in the record of appeal is fatal and violative of the mandatory provisions of Rule 96(1) (d) of the Rules. 12 Finally, we find merit in the Preliminary Objection. It is upheld and the appeal is hereby struck out with costs. DATED at DAR ES SALAAM this 19th day of December, 2012.. J.H. MSOFFE JUSTICE OF APPEAL ;1 p I W.S. MANDIA TICE OF APP ' S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. z____ TY REGISTRAR COURT OF APPEAL