general manager kahama mining corporation ltd vs kheri kadu 2016 tzca 242 21 april 2016

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA fCORAM: MASSATI, J.A., MUSSA, J.A. And MWARIJA, J.A.^ CIVIL APPLICATION NO. 13 OF 2015

THE GENERAL MANAGER KAHAMA MINING CORPORATION LIMITED.................................................... APPLICANT

VERSUS KHERI K A D U .................................................................................RESPONDENT (Application arising from the Judgment and decree of the High Court of Tabora at Tabora) f Mjemmas, J.~) Dated the 5th day of November, 2014 In Civil Case No. 1 of 2006

RULING OF THE COURT 13th & 22nd April, 2016 MWARIJA. J.A.: By a notice of motion filed on 20/4/2015, the applicant brought this application seeking for the following:- "1. The Court may be pleased to allow amendment o f part o f the record o f appeal so that the appellant can supplement the written i submissions on the preliminary objection by parties to the case before the Trial Court as part o f the records o f appeal.

2. And for an order that the costs if and incidental to this application abide by the result o f the said appeal." The application which is supported by the affidavit of the applicant's counsel, Yusuf Sheikh, learned counsel is shown to have been brought under Rule 111 of the Tanzania Court of Appeal Rules, 2009 (the Rules). Upon service on him of a copy of the application, apart from filing his affidavit in reply, the respondent filed a notice of preliminary objection challenging the competence of the application. The objection is to the following effect "The application to amend is wrongly filed under Rule 111 o f the Tanzania Court o f Appeal Rules, 2009 as there is no record that could be amended." When the application was called on for hearing on 13/4/2016, we decided to consider first, the preliminary objection. Mr. Yusuf Sheikh, learned counsel appeared for the applicant while the respondent had the services of Mr. Kamaliza Kayaga, learned counsel. Submitting in support of the preliminary objection, Mr. Kayaga argued that the application is incompetent for having been brought under inapplicable provision of the Rules. He said that Rule 111 which must be read with Rule 20, applies to amendment of documents which are already filed in Court. He contended that since the gist of the application is to file a missing part of the record, that is, the written submissions filed

in support of the preliminary objection in the trial Court, the applicable provision is Rule 96 (6). This, he said, is because what the applicant seeks to be granted is leave to file part of the proceeding which is missing in the record of appeal. He prayed that the application be struck out with costs. In response, at first Mr. Sheikh opposed the preliminary objection by arguing that the application is competent because his interpretation of Rule 111 was that it allows amendment of a record of appeal by filing a missing document or part of the record. However, on reflection he conceded that 3 inclusion of a missing document or part of the proceeding in the record of appeal does not amount to amendment of the record and that therefore, the application was, for that reason, brought under inapplicable provision of the Rules. He therefore conceded that the application is incompetent thus liable to be struck out. He however prayed that the costs should abide the outcome of the appeal. In rejoinder, Mr. Kayaga pressed for costs arguing that the applicant was served with the preliminary objection long before the application was fixed for hearing. As a result he said, his client has incurred expenses including the costs of travelling to attend the hearing. From what has been submitted by the learned counsel for the parties, we agree that the application was brought under a wrong

provision of the Rules. Rule 111 under which the application was brought states as follows:- "The Court may at any time allow amendment o f any notice o f appeal or notice o f cross-appeal or memorandum o f appeal, as the case may be, or any other part o f the record o f appeal, as such terms as it thinks f it " Properly interpreted, the provision empowers the Court to allow any party to amend the document named in that provision or any other part of the record. This means that there must be in existence, a record of appeal filed in Court for a prayer to amend to be granted. According to Collins COBUILD Advanced Learner's Dictionary, 2006, the word "amend" is defined as follows:- "If you amend something that has been written such as a iawf or something that is said you change it in order to improve it or make it more accurate."[Emphasis added]. Where therefore, like in this application, a party seeks to be allowed to file a missing document in the record of appeal which has already been filed in Court, the process amounts to an inclusion of that document, not amendment of the existing record. For this reason therefore, as submitted by Mr. Kayaga, the applicable provision is Rule 96 (6) which provides as follows:- "Where a document referred to in rule 96 (1) and (2) is omitted from the record, the appellant may within 14 days o f lodging the record o f appeal without leave

include the document in the record." The Rule allows an appellant to include in the record of appeal, any of the documents stated under Rule 96 (1) and (2) which was omitted at the time of filing the record of appeal. The missing document or part of the record can thus be included without leave of the court if it is done within 14 days from the date of filing the record. It is implicit that after expiry of the prescribed period of 14 days, the appellant has to apply for extension of time. - See the case of Ms. Henry Leonard Maeda & Anr. v. Ms John Anael Mongi & Anr., Civil Application No. 31 of 2013 (unreported). Given the above stated reasons, we find the application incompetent for non-citation of enabling provision of the Rules. As to the costs, the principle is that the same follows event. A successful party cannot be denied the costs incurred in the case without sufficient reason. We do not see any reason for so doing. In the event, the application is hereby struck out with costs. DATED at TABORA this 21st day of April, 2016. S.A. MASSATI

JUSTICE OF APPEAL K.M. MUSSA

JUSTICE OF APPEAL A.G. MWARIJA

JUSTICE OF APPEAL ’Per I certify t^at this is a true copy of the original. vr\\ /{•Jjj /•*// P7VATT BAMPIKYA * SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 7