20080310 TZCA Dar es Salaam

.' ~ [Lt:::cO ( '--.) 1 A '· IN THE COURT OF APPEAL OF TANZANIA . AT DAR ES SA.LAAM {CORAM: MSOFFE, J.A., KILEO, J. A., And KALEGEYA, J. A.) CIVIL APPEAL NO. 10 OF 2007 HARUNA MPANGAOS AND 902 OTHERS .............................. APPELLANTS VERSUS TANZANIA PORTLAND CEMENT CO. LTD ........................... RESPONDENT (An Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) · · {Manento, J.K} dated 26th day of October, 2006 in Civil Case No. 173 of 2003 JUDGMENT OF THE COURT 25th February, 2008 & 13th March, 2008 MSOFFE, l.A: This is a dispute over pieces of land comprising of Plots Numbers 1,4, and 7, Wazo Hill Area, otherwise referred to as Tanzania Portland Cement Company's Industrial Plots at Wazo Hill, located at Tegeta and Boko areas within Kinondoni District in Dar es Salaam Region. "fhe Ian~ 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 . ' 1 i. I .. 2 ~ for, among other things, a<a~daration 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 ttie 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 dated decree. Two days later, i.e. On 6/12/2007, Mr. Marando lodged a supplementary record of appeal containing the . properly dated decree. f l When the appeal was called oh 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. I Y 3 I . . . I In arguing the objection, Mr.Ro~an Mbwambo, learned advocate l,, for the respondent Company, was of t~e general view that a decree is a t · vital document under Rule 89 (1) (h} of the Court of Appeal Rules, 1979. Since this vital document . was nJt 1 present at the time of filing the ! record of appeal the appeal is incompetent notwithstanding the effort i • i .... ·.a•:· made by the appellants in filing the >".·•!supplementary •.. ·:, ... :.•·_.. _... _:,.· .. · . • . ~ .. ·· .. : · ·. . . . . . ,, . :,· ... record <·· . of appeal. . ,: ........ . .. ·......... . . . . . ·. . . . . . . . . · · ." Furthermore, Mr.Mbwambo went on. to submit, under sub. - rule I of .. I . . Rule 92 only a respondent can file a upplementary record of appeal if 71 the record of appeal is defective orlinsufficient. Under sub-rule (3) thereof, an appellant does not enjoy t !: e same right. Under this sub-rule ' I an appellant can only file a supplemehtary record of appeal containing "such other documents" as may Ijbe necessary for the further -~ 1, determination of the appeal as provid~d for under item {k) of sub-rule . I ,' (1) of Rule 89. A supplementary record of appeal containihg II a properly dated decree is not among tt e sort of "such other documents" envisaged under the item, Mr. Mbwartlbo concluded. : ' ' i; 4 ~ ~ We wish to observe from the outset that the contents of a record of appeal are spelt out 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 of an appeal from the High Court in its original jurisdiction, the record of appeal shall, subject to _the provisions. of sub-~ule (3),contai~ copies of the. following documents:- (a) an index of all the documents in the record with the numbers of the pages at which they appear: (b) a statement showing the address for service of the appellant and the address for service furnished by the respondent and, as regards any respondent who has not furnished an address for service on him of the notice of appeal; (c) the pleadings; (d) the trial judge's notes of the hearing; : (e) the transcript of any shorthand notes taken at the trial; i .I 5 i . i' I :1 (f) the affidavits Aead and all documents put in evidence at the, hearing/ or, if such documents Ii . are not in the :English language/ their certified 1 translations; (g) the judgment Of order; I 11 l (h) the decree or ofder; (i) the order, ifanr✓ giving leave to _appeal· .. .._.- ·.·.·· . . -~ : .. ·. ·..... . . . . . . .·, ·: . ' ',, . .-·· . . ·.· -1; ·:.. ' ·. . . . . . - .. - ... • ... __ .. _ . ~ .. ... ·-~ . , . . I OJ the notice of appeal· ! (k) such other dfcuments/ if any, as may be necessary for , the proper determination of the appeal inc/udihg any interlocutory proceedings· ;1 . which may be directly relevant. ', I 11 save that the copies referrt;d to in paragraphs (d)✓ (e) and (f) shall exclude copies of any documents or any of th~ir parts . '1, .. ::'r • i .. l that are not. relevant to the matters in controversy on the I appeal. . I Under Rule 83 (1) the record bf appeal must be lodged in the appropriate registry within a period of sixty days from the date of the 'I ' !i • ,, i - I I I 6 f ' lodging of the notice of appeal, ·subject to the exception therein. If the I . ir record of appeal containing the es·sential documents mentioned under Rule 89 (1) is not so lodged the appeal iWill be held to be incompetent. ,. Under Rule 89 (1) one of the ess~ntial documents to be contained ,,,1 I• ·j 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 appeal incompetent. In the case of Fortunat~s Masha v Wimam Shija and Another (1997) TLR 41 this Court stated:- j However, we are of (he view that where by reason of non-extraction df the decree or order, as in this case/ the appeal is rendered incompetent the issue· of insufficiency or :1 incompleteness does n1t really arise. The i position that arises is ;·simply one of non- 1, I existence of the appeal. ~ecause insufficiency or incompleteness connotes something which is in • 7 existence and which can be improved upon say by adding to it. An incompetent_ appeal is one in which in Jaw did not come into existence although efforts were made to bring it into existence. In such circumstances, therefore, one cannot properly talk of there being an insufficient or incomplete appeal which one can improve upon by filing a supplementary record, because in Jaw no appeal came into existence in the first.instance, there was only a purported appeal if you wish. (Emphasis supplied) t l It is settled law that a decree which bears a date different from the date of the impugned decision is defective and invalid. See, for instance, Abdaliah Rashid Abdallah, Civil Appeal No. 94 of 2006 . (unreported), Ami (Tanzania) Limited v :ottu on behalf of P.L. Assenga and · 106 Others, Civil Application No. 76 of 2002 ... •. '\ . 8 • .. (unreported), and Uniafrico Limited nd two Others v Exim Bank I I . . I . {T) Limited; Civil_Appeal No. 30 of 200 6 (unreported). 1 There is no dispute that the decrJe in the record of appeal filed on I I 1/2/2007 is defective. In essence Mr/. Marando concedes that much hence. the effort to file the supplemen~ry record of appeal containing a . I . properly dated decree. The crucial question in this appeal is whether or ·.·.·,.-,-_,2,:·.,_.:-:-..··.. _,.,··, ·.c,_:,,, ...... ·_·_.· ... : .· ·•.• · ·-:- ··.· .... :.. ··,·., .. ··.:·.· ·.,··,.: · .. .-. ··.,:. . ···I··. ··.·. ·. . · · ·. . , :·. · c .• · ·._~ ·._, .. ·_-. not the supplementary record of appe~I validated the already defective I record of appeal. j In answering the above questio~ it occurs to us that the starting I I point is a close examination of Rul~ 92, particularly sub- rule (3) i ! thereof. Rule 92 reads:- 92 - (1) If i'J respondent is of obinion that the recordof appeal is I defective or insufficient for the ~urposes of his case, he may lodge I . in the appropriate registry four ,copies of a supplementary record of appeal containing copies Jany further documen; or any ' I t, 9 additional parts of-documents wf?ich are in his opinion required :1 for the proper determination of the appeal. . 11 (2) The respondent shall as soon .as practicable after i 1, lodging a supplementary record iof appeal, serve copies of it on i1 . I the appellant and on each other respondent who has complied i I with the requirements of Rule 79) (3) An appellant may at Jny time lodge in the appropriate .. ·. ·:,.,._:.-_..··. ;~ . ._ .·.·.·... ·:~. ~~-.. >--·· . . : ~- - . .:·. . ' : . . ... registry four copies of a supplemr=ntary . record of. appeal . and shall as soon as practicable after doiqg so serve copies of it on every ,, respondent who has complied with the requirements of Rule 79. !! ( 4) A supplementary recqrd of appeal shall be prepared as '1 11 I, nearly as may be in the same manner as a record of appeal. j; J .-:I Ii, ·1· .·, ' . We wish to observe thatlhe above rule is similar to Rule 89 of the defunct Court of Appeal for East Afrid Rules, 1972 which used to read as follows:- I ,, 89 - {1) If a respondent is· of opinion that the record of appeal is defective or insufficient :tor the purposes of his case, he may lodge in the appropriate registry four copies of a supplementary record of appeal containing copies of any further documents or any additional parts of documents which are, in his opinion, required for the proper determination of the appeal. (2) The respondent shall as soon as practicable after lodging a supplementary record, of appeat serve copies of it on the appellant and on each other respondent who has complied with the requirements of rule 78. (3) An appellant may at ,any time lodge in the appropriate registry four copies of a supplementary record of appeal and shall as soon as practicable thereafter serve copies of it on every respondent who has comp/led with the requirements of rule 78. ( 4) A supplementary record of appeal shall be prepared as nearly as may be in the same manner as a record of appeal. It seems to us that the catch - word in Rule 92 of the Court Rules, and Rule 89 of the defunct Court of Appeal for· East Africa Rules for that I 11 matter, is "supplementary". In the Oxford Advanced Learners Dictionary of Current English, 6th Edition, the word "supplementary" is defined as:- "Provided in addition to something else in order to improve or complete 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 all 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 tt,e competence of the appeal. A supplementary record of t ·1 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 •:.. ,. 12 ' • ~ Africa had occasion to discuss the import and sense of a supplementary record under Rule 89 (supra). In that case the appel_lant 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:- 11The meaning of a supplementary record of appeal is made clear in r. 89 (1). It means a record containing copies of 11further documents or any additional parts of documents which are... required for the proper determination of the 11 appeal'~ The word further" musl in my opinion, mean further to the documents required by r. ps (1) to be i l contained in the record of appeal. Any other construction would mean that any appellanl who has filed a record omitting one or more of the basic documents required by r. 85 (1) could, at any time before the hearing, file a fresh record containing those documents, without having to apply ·,, '.... ~·. I j 13 r to -the court for an extensio~ of time under r. 4. If Mr. Muite 1 is right, a record of appeal could be filed in complete i- disregard of r. 85 (1), and the matter put to right by filing a new record complying with 1that ,,,, rule at any time before the hearing. I cannot accept such a submission. I have no doubt that the record filed just before the hearing of this appeal ' was not a supplementary record, but a re- filing out of time - -.. _·:- ----, _:;..·c_: ___ ,--_-. _-_:-------.--:"------ ::·--- :f•-, .- ---- _._ -. __ -, - ... --:-- _.,-._-,·,:,.-:_--:_-.-. ... _ !I of the original record containing one of the basic documents ·i ' ' I omitted from the original i: record, and that the appeal is i' incompetent unless this cdurt extends time either for filing I i,, the copy of the decree as part of the original record, or for !, ,: i filing the fresh record as the record of appeal in place of the i; :I original defective record, ~sprayed in (a) of Mr. Muite's amended application. Before the court can do thi~ .it must ··- i be satisfied that there is ''sufficient reason" for granting . A ,J ,, i 1nuu1gence..... 1: I' 'I I In similar vein, Mustafa, J. A. stated:-! 11 / am satisfied that a supplementary record, in terms of r. 89 of the R,ules, can only include - , '! 14 r I additional or further documbhts; which are, in the opinion of an appellant or respondent, 1 I required for a proper determination of.an appeal. -I ' '.i jl j It supplements the original' record of appeal - I :i 1 which has to be filed within ,, the prescribed time, l ,, ,, and which has -to contain theI basic documents - as I ;, provided in rule 85 of the Rules.-::--If----,_ a.--,_'basic ----~:----:-- __ -_ ---,-:_--_ -'-.----- ,_ ::..:-------- - cs:;_.:-.---:-----~--_-------:- - _:--:-: ---:-,-__ : __ ;: document, like a copy of t~e decree, -is omitted II from the original record of Jppeal that cannot be j! j introduced into - the r~cord \ by filing a • I, 1, supplementary record of/ appeal,: · when the i -! " prescribed time has expired In this case the - I - I appellant could only file th,e omitted decree out - ' - - -I of time with leave...... To_~ucceed he mustshow .~r !'•· :1 -·· ''sufficient reason'~ I - !1 ' Applying Masha and Kiboro, -amd also the interpretation of Rule I, " ~ . i1 92, to this case it is evident that the defect in the record of appeal filed - . Ii: - on 1/2/ 2007 was not cured under Rule 92 (3) by the supplementary - I I .I 15 ,. record of appeal .filed on 6/12/2007. The Fopy of a valid d_ecree_ ought to I have been filed with the record of app,~al within the time prescribed ,1 under Rule 83 (1) of the Court Rules. i· If such time had expired the . . . !,, appellants ought to have resorted to Rute 8 for extension of time either ,,' for filing the copy of the decree as part :'of the record filed on 1/2/2007 1, or for filing the fresh record as the r~cord of appeal ,in place of the original defective record. All said and done, we uphold thJ respondent on the preliminary I objection. The appeal, being incompeteht, is accordingly struck out with I Ji ~ts. I I: . i, In the justice of this matter how~ver, we think we should not end 1: up there. We realize that for quite sdme time appellants have always I, resorted to Rule 92 (3) as a remedy i~ filing supplementary records of . I: appeal containing valid decrees wh~re the already . filed records of ' ' . i appeal had (no valid decrees. Part of th~ reason for doing so was a result ;11 ;, of this Court's decisions in a number @f cases advising appellants to do so. For instance, in NBC .Holding C9rporation v (1) Mazige Mauya ,. .!., ~ .I· 16 I' . \., I (2) Mwanahamisi M. BilaH, Civil Appeal No. 36 of 2004 (unreported) 11 I in a situation where the copy of the decrtee in the record was invalid for ,, being signed by the District Registrar the,' Court had this to say:- 11With regard to pending:: appeals not yet scheduled for hearing, parties would be well advised to resort to Rule 92 (3) of the Court of ,, I, Appeal Rules, 1979, to rectify defects and :..... .. ·.· .·.:-.· _.·:·. . . . . .·. . ·:'•'· . . . . .. regularize the same in conformity 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 i, advice would have been to the effect :;that appellants should resort to Rule 8. It is for this reason that we thiqk it is fair to adopt the wisdom in ·' Robert John Mugo (Administrator bf the Estate of the late John . t ! ~t Mugo Maina) v Adam Mollel, Civii Appeal ,, No.2 of 1990 (unreported) I,' where, in an issue revolving around a defective decree, the Court I " stated:- ''But bearing in mind the fact that practically all the judges of the High ~ourt have consistently 17 ·" omitted to comply with tne requirements of I . I . .. Order 39 Rule 35 (4), an/ that the Court of . Appeal has also consistent/Yi until now failed to I notice the omission since it ~as established over I I ten years ago, thereby encduraging members of I I • the legal profession to bet/eve that all was in .· .. :·_,_;_·.-._ .. '. order . with the ...decree .· ··- .. ·. •' -_ in apJeal, : ·-::.-.--.· ·. ·,:· ,.·.:·-.·- "• we think -~_-:_ . .... ··' -. justice ....:.:: .::. .;_._ . demands that the appellant be put in a position to re-institute his appeal to this court should he so wish'~ Therefore, adopting the wisdom in Mugo, the appellants are I accordingly directed to re- institute thJ ·appeal if they so wish without further payment of Court fees. We will hasten to add, however, that re- __ I .. . r - . . -i .. . . . .,· c··· . -·1 .. instituting the appeal will be subject t<D compliance ·with Court Rules - I . See Robert John Mugo (Administrator of the Estate of the· late I John Mugo Maina) v Adam; MoHef, Civil Appeal No. 15 of 1991(unreported). We order accordingli. .l 18 . . I DATED at DAR ES SALAAM this 10 th !day March, 2008. I J. H. MSOFFiE JUSTICE OF APPEAL i .I E. A. KILE<D JUSTICE OF APPEAL -. - - .- - :;,.- --"' . -- L. B. --kALEG . A JUSTICE OF APPEAL I certify that this is a true copy of KA RAR ,. I'