20091223 TZCA Dar es Salaam

I . ---IEilm________,!1'!1",'_...,f ~~r IN TH::: CO~RT OF A,,~~L OF TANZ~NIA ~- , '\ ~.. .. , . _.- ,... r AT DAR ES SALAAM _.._......-.,. .z,-:-;~.. ~ (CORAM: KIM/l.RO,J.A., LUANDA, J.A., And MASSATI,J.AJ ,...... , .. r· CIVL APPEAL NO. 8 OF 2008 ·-1 FEDHA FUND LIMITED V INTERCHICK COMPANY LIMITED ;;, ; l :,- · TANZANIA FEEDERS &F'~ED MILLS LTD ....................... . ~ ................. ,.-,_;, APPELLANTS VERSUS GEORGET.VARGHESE . GEORGE T. THOMAS .....................................................................RESPONDE.~S 24 November & 23 Decemb , , 2009 KIMARO, J.A.: · and the ruling r;2ser ed for delivery on 15 th .June 2005, neither the ( .u.. -----·-- pleadings for the chamber application nor the ruling on the same, formed part of the record of appeal. Mr. Rutabingwa, learned advocate of:Yp~aring fqr the respondents in this appeal, and in the trial court he appeared for them as plaintiffs, informed the Court that the ruling on the chamber application was indeed written and pronounced to the parties. ~- The Court after hearing submissio~s from Mr. Lugano Mwandambo, learned counsel appearing for the appellants in t~~s appeal, on the importance and relevance of such documents forming part of the record of appeal for its determination, made a finding that they were relevant because if there was such an order for security for costs, in terms of Order XXV rule (2) of the Civil Procedure Code 1966, non compliance affected the competency of the suit. The Court said the wording of Rule 89(1) of the Court of Appeal Rules 1979 was, in acco~dance with section 53(2) of ' the Interpretation of Laws Act [CAP 1 R.E.2002], a mandatory requirement because the word used is shall. The Court observed that such record --. could only be excluded from th~ record of appeal upon invoking the provisions of Rule 89(3) of the Court Rules.. The hearing of the appeal was on that day adjourned to give the appellants time to file a complete record of appeal. 2 --- · Purporting to comply with the Court order, Mr. Mwandambo learned advocate for the appellants filed a supplementary record ofcfPJ1ea1'tmder Rule 92(3) of the Rules incorporating what was omitted from the original record of appeal, including among others, the pleadings and the whole proceedings forthe chamber application for security for costs. When the appeal vvas called ;on for hearing, Mr. Rutabingwa , learned advocate for the respondents rose to argue a prelimin~ry objection, notice of which was filed earlier on, under Rule 100 of the Rules that the record of appeal lodged offends the provisions of rule 89(1) (k) and the order of the Court dated 10th September, 2009 in that the non compliance in the original record of appeal was not cured by the supplementary record of appeal that was filed by the learned advocate for the appellants. In support of the preliminary objection the learned advocate for the respondents briefly submitted that, what were missing from the original record were the proceedings for security for costs which had to be :ncorporated into the record of appeal by virtue of rule 89(1)(k) of the Rules. Filing the supplementary record which included·· only those Jroceedings omitted from the original record, said the learned advocate for 3 the respondents, did riot alter the position as the original record still remained incomplete ir law. He cited the case of Kaping~-&Ccfntpany Advocates Vs Nation aI Bank of Commerce Limited Civil Application --------- N_o. 42 (unreported) 2nd insisted that compliance with rule 89(1) was ~andatory. What the Court ordered on 10th September 2009, the learned advocate contended, was compliance with Rule 89(1)(K)by filing a complete record of appeal and not the supplementary record filed by the advocate for the respondent. He prayed .that the app~a,I be struck out for incompetence as the record of appeai is still incomplete. > On his part, the learned advocate for the appellants said the objection is misconceived. What the Court emphasized in its order of 10th September 2009 which was not thorough, was inclusion of the proceedings for the security of costs into the record of appeal. Since his prayer to make the omission good by filing a supplementary record was not objected to, argued the learned counsel, the filing of the supplementary record 1 nder rule 92 of the Rules cured the defects in the record of appeal. He repeated what he told the Court ~arlier, on ih September 2009 that the documents were not relevant for the determination of the ··appeal. Mr. Mwandambo referred the Court to the cases of Leila Jalaludin Haji 4 ...._.. ~ ---·•··- -- ....... , lama I Vs Shaffin Ja laludin Haji Jamal . Civil appeal No .. 55 of W03(unreported) and Paola Sibilia Vs Pierre limited ana 1ffil5erto l\1erlo Civil Appeal No. 89 of 2002 (unreported). Both cases draw a - . jistinction between documents vital for the determination of the appeal :Hid those which are not. The vital documents must mandatorily form part J'. the record of the app~al and an omission _:9 include them into the record Jf appeal renders the appeal incompetent. On the other hand, the mission to include documents not' vital for the_determination of the appeal into the record of appeal is mere irregularities which do not affect the ------ :ompetency of the appeal. Mr. Mwandambo conceded to the decision of the case of Kapinga (supra) and a lot of others decided by the Court on failure to include a valid decree into the record of appeal; that it makes the appeal incompetent. He said such vital document is important for the 1) determination of the appeal. He was adamant that failure to include documents not relevant for the determination of the appeal, as is the case with .this appeal, is a mere irregularity which does not affect the competency of the appeal. He requested the Court to take caution not to interpret rule 92 restrictively, otherwise the object behind it will be rendered useless, emphasizing .that the Court is for justice --and not an academy of the law. 5 In brief rejoinder the learned advocate for the respondents said there was no specific or jer made· by the Court on 10th Septem5e(#LZ009 for filing a supplementary ··ecord. The Court ordered the appellants to file a complete record of app?al but did not specify the procedure to be used by the appellants in filin~ such record. On the authorities cited by the le9rned advocate for th·? appellants, Mr. Rutabingwa said the cases, unlike this appeal, dealt with applications and not the main appeal and the case of Kapinga (supra) gi-1es the current position of the_ Court. As regards how rule 89(1)(K) shou1d be interpreted, the learned advocate said a party I should not be given an opportunity to ch9ose which documents should b filed and which should Je excluded but the procedure should be complie ' with. He reiterated h s prayer for striking out the appeal with costs for 1 incompetency. Having heard thr:i submissions by both learned advocates, on the preliminary objection, we -will, at the outset, agree with the learned advocate for the respondents that the Court di9 not order the appellant to file a complete record of appeal by a supplementary record. The last sentence of the order made on 10 th September, 2009 is very clear. It says: "We would in the evert adjourn tbe hearing of the appeal to enable the 6 Ill. l ,....-i - - ••• ·• Jr .·,u,~ ( :-' appellants to file a corr oiete record of appeal." The appellants by filing a supplementary record .vhich included only the documents-"Wn1tn~were excluded in the record c• appeal did not make the original record complete. In discussing what is a supplementary record, the Court in Robert Edward Hawkins and another Vs Patrice Mwaigomole Civil . Application No. 109 of; 007 (unreported), said: "... a supplementary record of' appeal, presuppos,,~s the existence of a complete record of appeal lodged by an appellant. Complete 1 '7 the legal sense that it is containing all the necessary or core documents as itemized in Rule 89(1). As rule 92(1) unequivocally directs~ the supplementary record of appeal may be lodged only for purposes of making good some minor deficiencies in the record of appeal not affecting the competence of the appeal, ...A supplementary record of appea:: 1-herefore, lodged by either the responden,_ or the appellant or both, in my settled vie!½ sho. 1/d not supplant the contents of the record of c:ppeal. It should add something to the otherwise complete record of appeal further to those mer:t1oned in rule 89(1) in order to make it easy, with a view of the party lodging it, for the 7 .I...._ - ... · -- . . :ir ~! appeal tc be properly and conclusively determinec. ,. I Similar views were expressed by the Court in the case of Kapinga (supra) where it said: '1n legal oarlance/ a supplementary record of appeal supplements the original record of appeal to include additional or further documents which are in the opinion . .of an appellant or respondent, required for a proper de termination of an ,appeal. This is evident frorn Rule 92(1) and (3) of the Court Rules'~ It is true in the cases cited by the learned advocate for the appellant 1?[1 :he Court drew a distinction between documents necessary for the jetermin~tion of ~hE:__ ~ppec1. which if excluded, makes the appeal ------ --- ~~. ~~::.-::-.:.?.si - - - ric'6mpetent, and those vvhich are not necessary for the determination of :he appeal, the omissicn of which, apart from being a mere irregularity ' i foes not affect the determination of the appeal. Although the learned 3dvocate has insisted that the documents he has filed as supplementary 8 _______ __... , .,._. . record were not vital for the determination of the appeal, we must say that he is wrong. The Court order specifically stated that: "In our view an application for security for costs is of direct relevance, because in terms of 0, XXV r. (2) of the Civil Procedure · Code, its non compliance affects the competence of the suit'~ ·~ Moreover,·\ the decision to choose documents relevant for ___the ··--~-.___ determination of the appeal is not ·optional on the party filing the record of appeal. . Under rule 89(3) of the Court Rules, it is ~ither 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 learned advocate for the appellant did not obtain such leave, it was mandatory for him to file the documents. As he was given time to file a ¼\{{t (:omplete record of appeal but he failed to use a proper procedure for doing so, the original record of appeal remains intact a11d incomplete. Under the circumstances, the preliminary objection has merit. It is upheld and the appeal is struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 16th day of December, 2009. 9 V N.P.KIMARO JUSTICE OF APPEAL. B. LUANDA JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original ~,,' J.S. MGETA DEPUTY REGISTRAR 10 I