20170622 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUANDA, J.A., MZIRAY, J.A. And LILA, l.A.) CIVIL APPEAL NO. 50 OF 2013 1.LATIFA RAMZAN WALJI 2.AZMINA LATIF WALJI 3.FARZIN LATIF WALJI 4.SHAHEER LATIF WALJI ................................ APPELLANTS 5.NOORSHIN LATIF WALJI 6.RAMZAN DHARAMSI WALJI Co. LTD VERSUS 1.ADMINISTRATOR OF THE ESTATE OF THE LATE , ELIJA MWAIPAJA .......... RESPONDENTS 2. MKUMBI CIVIL CONSTRUCTION CO. LTD 3. NATIONAL INSURANCE CORPORTION OF {T) LTD (Appeal from the judgment and decree of the High Court of Tanzania at Dar es Salaam.) (Shangwa, l.) dated the 14th day of August, 2012 in Civil Case No. 127 of 1998 RULING OF THE COURT 12th & 28 th June, 2017 LUANDA, J.A.: The above. named appellants are dissatisfied with the decision of the High Court of Tanzania sitting at Dar es Salaaam (Shangwa, J) which dismissed· their suit for the claim of damages against the respondents 1 II arising from a motor vehicle accident. The trial learned judge was of the settled view that the driver of the appellants was the one who was negligent to the . accident and not the late Elia Mwaipaja, Managing Director of the 2nd respondent, who was driving another mqtor vehicle from the opposite direction· who is reported passed away sometime, (not known exactly) but alter the conclusion of the trial. It appears so far the administrator of his estate is yet to be appointed. Be that as it may, in this appeal Mr. Joseph Rutabingwa advocated for the appellants; whereas Mr. Samson Mbamba learned Counsel appeared for the 3rd respondent. The 1st and 2rid respondents were unserved. When this appeal was called on for hearing, the Court wished to satisfy itself, in the absence of the 1st and 2nd respondents, as to whether the appeal was _ competent. We did so as the record shows a number of exhibits namely Exht Pl, Exht P2, Exht P3, Exht P4, Exht PS, Exht P6, Exht P7, Exht P8, Exht P9, Exht PlO, Exht Pl 1, Exht P11, Exht P12, Exht P13 . . ,. ' and Exht P14 are missing in the record of appeal. The omission of those documents which were tendered in Court as exhibits were required in law 2 to be in the record of appeal as spelt out under Rule 96(1) (f) of the Court of Appeal Rules, 2009 (the Rules). Both Mr. Rutabingwa and Mr. Mbamba joined hands to the Court's observation and said the record of appeal is incomplete as such the appeal is incompetent. The same is liable to be struck out, they submitted. Before we handed down the order of striking· out the appeal, Mr. Mbamba drew our attention to another legal anomaly in that this suit was first heard by Bubeshi, J. But for undisclosed reasons, it landed in the hands of Shangwa, J. As Shangwa, J did not disclose the reason for the taking over as demanded by Order.18, Rule 10 of the Civil Procedure Code, Cap. 33 (the CP,C), then Shangwa, J had no jurisdiction to conclude the trial. He invited the Court to invoke its revisional powers and quash the proceedings taken by Shangwa, J and remit the record to the High Court so that another judge to take over who should state the reason for doing so. This position was supported by Mr. Rutabingwa who added that if the Court merely strikes out the appeal, in view of the obvious legal anomaly, the subsequent appeal would not survive at all. The way forward, he said, was that presented by Mr. Mbamba. 3 We start with the omission of exhibits in the record of appeal. As said earlier on, the record of appeal does not contain a number of exhibits enumerated above: Rule 96 (1) (f) of the Rules dem~nd all document put in evidence should be included in the record of appeal. The Rule reads:- 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 provisions of sub-rule (3) contain copies of the following documents ~ (a) N/A (b) N/A (c) N/A (d) N/A (e) NIA (f) the affidavits read and all documents put in evidence at the hearing, or, if such documents are not. in the 4 English language/ their certified · translations. [Emphasis supplied] Since the .appellants at no given time applied for exclusion of any document as provided under sub rule 3 of Rule 96 and granted, then they were required to include the aforementioned documents in the record of appeal. Failure to do so renders the record of appeal incomplete and hence the appeal to be incompetent. An appeal which is incompetent is liable to be struck out. As to failure to disclose the reason as to why Bubeshi, J did not conclude the trial, we have the following to say. It is true that Bubeshi J, did not conclude the trial and Shangwa, J took over. Indeed Shangwa, J. took over at the time when PW4 had yet to conclude his testimony and when Bubeshi, J reserved ruling in respect of an objection rais_ed by Mr. Msemwa learned counsel who then appeared for the 3rd respondent as to admissibility of an insuranc~ cover note and receipt in relation. to the motor vehicle of the appellants. And before Shangwa, J proceeded with the suit, Prof Shivji who advocated for the 5 appellants withdrew from the conduct of the suit. In his stead Mr. Rutabingwa took over and prayed for the supply of the proceedings which he was granted. It was after Mr. Rutabingwa was supplied with the typed proceedings where the case continued when he reminded the Court that the Ruling which was reserved to be delivered by Bubeshi, J was yet to be delivered. We reproduce that part for ease of reference. "10/11/05, Coram: Shangwa, J. For the plaintiffs: Mr. Rutabingwa, Adv. For the 1st Defendant -~ Mr. Mwaipaja Director 1 t· i For the Z1d Defendant _J For the :l'd Party - Msemwa, Advocate (Absent) Cc. Kombq Mr. Seme:I hold brief for Mr. Msemwa for the :l'd Party. Mr. Rutabfngwa: My Lord, we have already received the typed proceedings. We have discovered that on 7.5.2004 Bubeshi, J. {Rtd} reserved a ruling on an objection which was raised in the course of hearing. It was to be delivered on ' 3dh June, 2004. I wonder whether it was delivered. [Emphasis supplied] 6 Court: It was not delivered Sgd. Shangwa/ J. 10.11.2005 Order: The undelivered ruling will be written by me tomorrow 11.11.2005. Sgd. Shangwa/ J. 10.1 l.2009N ~ Then the case proceeded and eventually judgment was composed and delivered. In the judgment, Shangwa, J gave the historical background, inter alia , the judge who dealt with the case first. He mentioned Bubeshi, J as the one who commenced hearing. Upon retirement he took over from her. Order 18, Rule 10 of the CPC permits a judge or a magistrate to take over from his predecessor who was prevented from concluding the trial by any cause including death or transfer. The Rule reads. 10 - (1) Where a Judge or magistrate is prevented by death/ transfer or other cause from concluding the 7 trial of a suit his successor may deal with any evidence or memorandum had taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. It is on record that before Shangwa, J. resorted meaningfully to proceed to hearing the case while the parties to the case were aware why he took over; Bubeshi, J had retired. This was said by Mr. Rutabingwa as we reproduced the relevant extract above. And retirement is no doubt one of the grounds envisaged under Order.18, Rule 10 of the CPC for the predecessor judge to take over the trial of the suit. The reason for the takeover was known by the parties. Under these ci.rcumstances, we are not prepared to go along with both learned counsel who claimed that no reason was disclosed when Shangwa, J took over. The parties were very much aware. The point raised has no merit. In fine, as the record of appeal is incompetent, we strike out the appeal with no drder as to costs. 8 . ' DATED at DAR-ES-SALAAM this 22 nd day of June, 2017. B.M. LUANDA JUSTICE OF APPEAL R.E. MZIRAY JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL J certify that this is a true copy of the original. E.F. DEPUTY R RAR COURT 0 EAL 9