municipal director kinondoni municipal council vs nw builders limited 2016 tzca 857 2 august 2016

IN THE COURT OF A P P E A L OF TA N Z AN IA AT P A R E5 SALAAM f C O R A M : MBAROUK, J.A., MUSSA, 3.A., And 3UMA. J.A .) CIV IL APPEAL NO. 139 OF 2015 M U N IC IP A L DIRECTOR K IN O N D O N I M U N IC IPA L C O U N C IL.................................... A PP E LLA N T VERSUS N.W. BUILDERS LIMITED .............................................. RESPOND ENT (Appeal from the Ruling and drawn order o f the High Court of Tanzania Com m ercial Division at Dar es Salaam) ( Ma lea r a m bo, 3 .) Dated 24u’ day o f O ctober, 2011 R UL I N G OF THE COURT 2 1'-'- July ft 2"‘: Aucjii'jt, 201G JU K /l, J.A.: This is an appeal from the Ruling of the Nigh Court Commercial Division (Makaramba, 1) given following an application which the respondent, N.W. BUILDERS LIMITED, made under Order XXI Rules 9 and 10 of the Civil Procedure Code, Cap. 33 (CPC) to seek an Order directing the KJ NON DON I MUNICIPAL DIRECTOR (the appellant herein) to pay a total of Tshs. 1,614,742,782/-- as arbitral award in the execution of the decree arising from Commercial Case No. 14 of 2009. The dispute at the background of this appeal arose from execution of construction contract covering works at Midizini in Sub-Ward of Manzesc, in Kinondoni Municipality. Under the awarded contract, the appellant tasked the respondent company to build a 2.05 kilometre two-ways gravel road and a 2.20 kilometres one way road. The respondent was in addition contracted to build a 4.25 kilometres of road side drains, fabrication-of 4 solid waste containers; building of 4 public toilets and provide street lights. The first signs of the dispute emerged when, after the installation of street lights and issuance to the respondent of an interim certificate for payment. The contracting parties differed on which unit of measurements should have guided the streetlights installations. As a result, the respondent declined to make payments in respect of installation of the street lights. As required under the arbitration clause' of their contract, the respondent referred the matter to the Adjudicator who ruled that the measurement for item 6.04 should be Linear Metres while that of item 6.20 should be in [lumber. Despite the adjudication, the respondent was still aggrieved, and referred the matter to the Arbitrator. Meanwhile, the appellant took a decision to terminate the contract, citing failure of the respondent to perform. The respondent referred for arbitration not only both its complaint over the measurement but also the termination of the contract. The respondent was still aggrieved with the Final Award (dated 8/5/2009) which Eng. Ronald A. Lyatuu, the Arbitrator issued. This Final Award was later replaced by "FRESH AWARD REPLACING PART OF THE FINAL AWARD FOLLOWING REMISSION' both by the same Arbitrator. Upon the orders of the trial court, the respondent filed an Amended Petition on 20/4/2010. On 10!h June 2011 Makaramba, J. delivered the Ruling and issued the following orders: * 1. The unit measure "L" as appiieabie' to Ihe BOQ-Bill No. 6 items 6.04 and 6.20 should be interpreted as "Linear Metres" or (M). 2. The unit oh measure on the contract price is as agreed to by the parties as per the BOO where in item 6.04 the rate should be TZS 1000/~ per metre. 3. The computation o f the entitlements should be based on the rates agreed to by the parties and stipulated in the BOQ wherein item 6.04 the rate being TZS 1,000/= per metre and since only 4,100 metres o f cable were supplied the payment is TZS 4/100,000/-= September 2008 which were not remitted shall continue to hold unchanged as directed. 5. Each party shall bear its own costs in this petition. On 8/7/2011 the respondent lodged a tabular application for. the execution of the decree by way of a Garnishee Order to attach the appellant's bank account. Jn the Ruling that followed on 24/10/2011, Makaramba* J. among other orders, directed the appellant (as the judcjment-debtor), to pay the respondent (as the decree-holder) the arbitral award (totalling Tshs. l /C/!/l,7 /12,782/---) from the revenue of the Kinoncioni Municipal Council. It is this Ruling on the arbitral award which' prompted the instant appeal before us based on five grounds of complaints. At ttie hearing .of the appeal the appellant was represented by two learned Principal State Attorneys, Mr. Obadiah Kameya, assisted by Ms. Angela Lushagara. The respondent was represented by Mr. Gregory Lugaila learned advocate. At the very outset, Mr. Kameya explained that it was only yesterday when the conduct of this appeal and the entire record was transferred from Mr. Eustace Rwebangira, learned advocate, to the Attorney General Chambers. He sought the understanding of the Court regarding the fact that he and Ms. Lushagara have so far had very little time to read the voluminous record of appeal. But, before we allowed the learned Principal State Attorney to submit and expound on the grounds of appeal, we asked him and later Mr. Lugaila, to address us first on the whereabouts of several Rulings which were shown to have been delivered during the course of proceedings in the « Nigh Court, but which were not inclucleci in the record of this appeal. These Rulings, are alluded to on page 1260 (delivered on 11/5/20:12), page 1273 (delivered on 29/11/2012) and on page 1279 (delivered on 13/2/2013). After looking at the index of all the documents in the record of appeal perusing through a total of J/1S6 pages divided in two volumes of the record of appeal, Mr. Kameya conceded that the mentioned Rulings were indeed not included in the record of appeal in compliance with the mandatory Rule 9G (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Accordingly, the learned Principal State Attorney urged us to strike out the appeal, pointing out that an incomplete record makes the entire appeal incompetently before us. On his part, Mr. Lugaiia agreed as much about tl'ie incompleteness of the record by submitting that in so far as the record of this appeal was not accompanied with mentioned Rulings which were duly delivered, the appeal is not sustainable in law and should be struck out. As the two learned counsel have correctly conceded, with some documents missing from the record, the appeal before us is anything but incompetent. The position of the Court is now well settled on proposition that appellants filing records of appeal in appeals from the High Court in exercise of its original jurisdiction as this appeal is, arc obliged to include in the record the prirnaiy documents that are specified by Rule 96 (1) of the Rules. In so far as the duty to include Judgments or Rulings is concerned, the relevant Rule 96 (1) (g) 96 (1)- For the purposes o f an appeal from the High Court in its original jurisdiction, the re co rd o f a p p e a l shall, s u b je c t to the p ro v isio n s o f sub-rule (3), contain copies o f the following documents- (g ) the jud g m e n t o r order; .... [Emphasis Added]. The words "the record o f appeal shall, subject to the provisions o f sub-rule (3), contain" in above Rule 96 (1) of the Rules are couched in mandatory terms. An intending appellant who desires to exclude any mandatory record from the record of appeal must satisfy the conditions set under Rule 96 (3) of the Rules. While considering Rule 89 (1) of the Court of Appeal Rules, 1979 [which is in pari materia with Rule 96 (1) of the Rules the Court in NJ.KO In s u r a n c e 9 (T) vs. Jo se p h 0-. ICayoma Civil Appeal Number 2 of 2008 (unreported) emphasized that: "Rule 89 (1) (f) o f the [1979J Rules is dear that the re co rd o f a p p e a l must: co n tain in te r alia/ a ll d ocu m en ts te n d e re d in co u rt d u rin g trial. The vsord S H A LL is m andatory. So failure to include the document in the record o f appeal renders the appeal incompetent. "[Emphasis Added], In so far as documents specified under Rule 96 (1) are concerned, sub-rule (3) o f Rule 96 of the Rules has insisted that it is not for the intending appellant to unilaterally opt on which documents to include, and which to leave out. The relevant Rule 96 (3) o f the Rules states: (3) A Ju stice or R e g is tra r o f the H ig h C o u rt or tribunal, may, on the a p p lica tio n o f a n y patty, d ire c t yjhich docum ents o r p a rts o f docum ents s h o u ld he e x clu d e d from the record, application for which direction may be made informally. [Emphasis addedj. In Ja fu m a G en e rad S ap [3lie s Ltd vs. S T A N B IC B a n k (T) Ltd, Civil Appeal No. 77 of 2011 (unreportcd), while determining a preliminary objection predicated on failure to include in the record of appeal of documents referred to under Rule 96(1) (d) and (f) of the Rules, the Court was referred to an earlier decision in Fedha Fund L im ite d and tw o O thers v George T. Varghcse and Another, Civil Appeal No. 8 of 2008 (unreportcd) where the Court restated that: "...the decision to choose documents relevant for the determination o f the appeal is not optional on the party filing the record o f appeal. Under Rule 89(3) (now Rule 96(3) o f the Cot /ft Rules, it is either a Judge or a Registrar o f the High Court who, on application by a party, has to direct which documents to be excluded from the record o f appeal. Since the learned advocate for the appellant did not obtain such leave, it was mandatory for him to file the documents..." In upshot, having failed to include copies of the Rulings in compliance with Rule 96 (1) (g) of the Rules, the record of this appeal is incompetently before us. This appeal is as a result struck out. Each party shall bear its own costs. D ATED at P A R ES S A LA A M this 10'h day of August, 2016. M. S. MBAROUK JUSTICE O F A P P E A L K. M. MUSS A JU S T IC E O F A P P E A L ]. IT JUMA JU S T IC E O F A P P E A L 1 ccrtify_lhat this is a true copy of the original. A P.W. BAMP1KYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL y