magambazi mines company limited vs kidee mining t limited 2022 tzca 46 22 february 2022

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA. J.A.. SEHEL, 3.A. And KAIRO. J.A.^ CIVIL APPEAL NO. 238 OF 2019 MAGAMBAZI MINES COMPANY LIM ITED ........................................... APPELLANT VERSUS KIDEE MINING (T) LIM ITED ......................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Mwaimu, J.) dated the 24th day of February, 2015 in Civil Case No. 14 of 2011 RULING OF THE COURT 15th & 22nd February, 2022 SEHEL, J.A.: Before the High Court the respondent, Kidee Mining (T) Limited, successful sued the appellant and Juma Sitta Bundara, Ivuli W. Jeremia, Marwa W. Ikware and Hamisi Msangi (the then 1st, 2nd, 3rd and 4th defendants but not parties to the appeal). The claim was based on the alleged breach of a mining co-operation agreement entered between the respondent and then 2nd and 3rd defendants. In its decision delivered on the 24th February, 2015, the High Court held that there was a valid and enforceable agreement between the parties and that, the appellant had breached the agreement. It thus, ordered the appellant and four others to jointly pay the respondent TZS. 360,000,000.00 as specific damages, T7S. 800,000,000.00 as general damages, interest at 12% per annum on the decretal sum and costs of the suit. Aggrieved, the appellant filed the present appeal advancing seven grounds which for a reason to be apparent shortly we do not intend to reproduce. The respondent after being served with the record of appeal and pursuant to Rule 107 (1) of the Court of Appeal Rules, (henceforth "the Rules') filed a notice of preliminary objection comprised of three points of law; namely: 1. That, the record o f appeal is defective fo r want o f statem ent showing the address for service o f the appellant and the address fo r service furnished by the respondent. 2. That, the appeal is incom petent and tim e barred for incorporating a defective Certificate o f delay. 3. That, grounds number 3 and 5 o f the memorandum o f appeal are legally incom petent 2 At the hearing of the appeal, Mr. Boniface Joseph and Mr. Ipanga Kimay, both learned counsel, appeared to represent the appellant whereas Mr. Mpaya Kamara assisted by Ms. Neema Mutayangulwa, both learned advocates appeared for the respondent. As is the rule of practice of the Court that before we ventured to determine the merits of the appeal, we invited parties to address us first on the preliminary objections. Mr. Kamara began his submission by informing the Court that, he opted to reserve the third point of law to the hearing of the appeal as such, he abandoned it and we marked it so. Submitting on the 1st point on the absence of the statement showing the address for service of the appellant and respondent in the record of appeal, Mr. Kamara pointed out that looking at the index of the record of appeal it is clear the same is not listed and it is nowhere to be found in the record of appeal. Mr. Kamara argued, this to be an omission contravening Rule 96 (1) (b) of the Rules that lists a statement of address of service as part of the record of appeal. It was his submission that it is not upon the parties to choose which document to be included or excluded in the record because, pursuant to 3 Rule 96 (3) of the Rules, a document can be omitted either by the direction of the Court, Registrar of the High Court or tribunal. He submitted that the option available to the appellant, pursuant to Rule 96 (6) of the Rules, was to file the omitted document within fourteen (14) days after filing the appeal, or to seek leave of the Court in terms of Rule 96 (7) of the Rules but currently there is no such application. Commenting on Rule 99 (1) of the Rules, he argued that the respondent could not have filed it because it does not know the address of service of the parties. He finally urged the Court to sustain the preliminary objection and find that the record of appeal is defective. Arguing the 2nd point that the record of appeal contained a defective certificate of delay, Mr. Kamara pointed out that the certificate of delay appearing at page 477 of the record of appeal does not reflect the correct number of days utilised in preparing and availing the requested documents to the appellant. He argued that if one counts the days from 9th March, 2015 when the appellant wrote a letter requesting to be supplied with the documents for filing an appeal to 3rd May, 2018 when the documents were availed to the appellant, the aggregate period is 1151 days and not 1143 days as reflected in the certificate of delay. He relied on the decision of 4 Godfrey Nzowa and Another v. Seleman Kova and Another, Civil Appeal No. 3 of 2015 (unreported) where it was stated that a certificate of delay should be free from any error and if it has any error then it is vitiated. He also contended that such an error in the certificate of delay cannot be glossed over as it goes to the root of the document as it was held in the case of Njake Enterprises Limited v. Blue Rock Limited and Another, Civil Appeal No. 69 of 2017 (unreported). On the scope of Rule 96 (7) of the Rules, Mr. Kamara viewed its application to be restricted to cover omitted documents as it does not apply to a document which has to be amended. At the end, he implored the Court to sustain the two points of law and struck out the appeal with costs to one advocate as it was done in the case of Basilisa Thomas Sawere v. Onest Philip and 2 Others, Civil Appeal No. 276 of 2018 (unreported). In his reply, Mr. Joseph conceded to the 1st point that indeed, the statement of address of service is missing in the record of appeal. He, however, contended that the omission was not fatal as it did not prejudice the respondent. He reasoned that the address of service is shown throughout the record of appeal. He mentioned the documents that have 5 the address for service of the respondent that: a certificate certifying the correctness of the record of appeal, the memorandum of appeal and the notice of appeal. He added that the respondent was able to take appropriate steps in the progress of the appeal as he was duly served with the record of appeal, filed written submissions and even raised a notice of preliminary objection. It was his submission that, even the respondent had an obligation under Rule 99 (1) of the Rules to file a supplementary record of appeal to cure the anomaly. In the alternative, Mr. Joseph prayed the Court to invoke section 3A of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (henceforth "the AJA") and Rule 2 of the Rules to invoke the overriding objective principle and grant leave to the appellant to file a supplementary record of appeal in terms of Rule 96 (7) of the Rules to include the omitted statement of address of service. For the 2nd point of law that the certificate of delay is defective, Mr. Joseph also conceded to the anomaly and argued that, the same can be cured by invoking the overriding objective principle as held in the case of Geita Gold Mining Ltd v. Jumanne Mtafuni, Civil Appeal No. 30 of 2019 (unreported) where it was held: 6 "... it should all along be strived to inject oxygen to an appeal so that it is not terminated on account of a defective or an invalid certificate of delay but resuscitated by allowing an appellant to seek and obtain a proper certificate of delay with a view to determine the disputes between parties on merits." He also referred us to the case of Ardhi University v. Kiundo Enterprises (T) Limited, Civil Appeal No. 58 of 2018 (unreported) where the Court injected oxygen principle and allowed the appellant to file a supplementary record of appeal so as to include a valid certificate of delay. He therefore prayed to be granted leave to file a valid certificate of delay. He further distinguished the cases cited by Mr. Kamara that the Court in those cases the appellant did not write or serve on the respondent a letter requesting for certified copies of proceedings, judgment and decree which is not the case in the present appeal. Responding on costs, Mr. Joseph urged the Court not to condemn the appellant to pay costs as, he said, the blame had to be equally shared with the Court and the parties. 7 Mr. Kamara had few issues to re-join. First, he reiterated that pursuant to Rule 96 (3) of the Rules, documents to be filed in the record of appeal can only be omitted by the direction of the Court, Registrar of the High Court or tribunal. Secondly, he submitted that as the law was not complied, the respondent was prejudiced. Thirdly, he contended that the overriding objective is not a panacea of all illness as such it should not be applied blindly. Fourthly, he distinguished the case of Ardhi University v. Kiundo Enterprises (T) Limited (supra), that it did not determine on the scope of Rule 96 (7) of the Rules and the counsel for the appellant did not reply on the word "omitted" as it appears under Rule 96 (7) of the Rules. Fifthly, on the costs, he contended, the appellant is to blame as it did not seek rectification on the defective certificate of delay. In the end, he reiterated his earlier prayer that the objections be upheld and the appeal be struck out. Having considered the submissions made by the learned counsel for the parties, the issue for our consideration is the propriety or otherwise of the appeal before us. We shall start with the second point of objection that there is a defective certificate of delay which Mr. Kamara argued that it cannot be cured by filing a supplementary record of appeal. As conceded by Mr. Joseph the certificate of delay appearing at page 477 of the record of appeal has anomaly in the total number of days computed from the time the appellant wrote a letter requesting to be supplied with certified copies of proceedings, judgment and decree to the date when the appellant was supplied with the requested documents. For ease of refence we reproduce part of the extract of the said certificate of delay, it reads: "This is to certify that an aggregate o f 1143 days were required for the preparation and delivery o f copies o f proceedings and other docum ents applied for by the Counsel for the Defendants in th eir letter dated 9 h March, 2015. The said docum ents were made ready fo r collection to the Defendants on J d May, 2018." Reading from the above certificate of delay, the Registrar miscalculated the total number of days taken to prepare and supply the documents to the appellant. As rightly submitted by Mr. Kamara, the 9 aggregate number of days taken to prepare and supply the same is 1151 and not 1143. In the case of Andrew Mseul and 5 Others v. The National Ranching Company and Another, Civil Appeal No. 205 of 2016 (unreported) we echoed that: "A valid certificate o f delay is one issued after the preparation and delivery o f the requested copy o f the proceedings o f the High Court. That necessarily presupposes that the Registrar would certify and exclude such days from the date when the proceedings were requested to the day when the same were delivered." In the event, the Registrar of the High Court miscalculated the days spent in preparing and supplying the documents to the appellant. We therefore find that the certificate of delay is invalid as conceded by Mr. Joseph. The ensuing question is, what is the way forward. Mr. Kamara impressed upon us to find that the appeal is time barred and we should strike it out on account that the appellant cannot rely on the invalid 10 certificates whereas Mr, Joseph urged us to invoke the overriding objective principle particularly, to invoke section 3A (1) (c) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 to allow the appellant to file supplementary record to include a statement showing address of service and a valid certificate of delay. Fortunately, the Court had an occasion to deal with a matter similar to the one at hand. This was in the case of Absa Bank Tanzania Limited (Formerly known as Barclays Bank Tanzania Ltd) and Another v. Hjordis Fammestad, Civil Appeal No. 30 of 2020 (unreported). In that appeal, a certificate of delay had defects on the aggregate days excluded in the certificate of delay. The days were at variance with the actual aggregate number of days used to prepare and supply the documents to the appellant. The certificate of delay excluded 70 days while the actual days spent was only 56 days. Such anomaly was conceded and the question to the Court was the way forward. In deliberating on the way forward, the Court considered the two schools of thought on the consequence of a defective certificate of delay. The first school advocates that a defective or invalid certificate of delay goes to the root of the matter and therefore cannot be rectified and hence the appeal has to be struck out. The other school advocates for invocation of the overriding objection principle with the aim of timely disposal of matters, in terms of sections 3A and 3B of AJA and Rule 2 of the Rules thus the Court has been granting leave to the appellants to seek and obtain a properly drawn certificate of delay instead of striking out the appeal. At the end, the Court concluded: "We are thus o f the view that, having regard to the circum stances o f the instant case, and the decisions in the recent cases cited above which had an opportunity to determ ine the way forw ard in the wake o f a defective certificate o f delay, we are o f the firm view that invoking the overriding objective principle w ill inject the m uch-needed oxygen to the instant appeal to give it a new impetus. In the process, we allow the appellant to enjoy the exclusion o f tim e provided under Rule 90 (1) o f the Rules, in term s o f sections 3A and 3B o f AJA and Rule 2 o f the Rules ... the appellant is to seek and obtain a valid certificate o f d e la y/' We hasten to add that more than not, the Court denied to grant leave to the appellants to file supplementary record of appeal where it is 12 found that the appellant had not either written a letter requesting for certified copies of proceedings, judgment and decree or has not served the said letter upon the respondent in terms of Rule 90 (3) of the Rules that disentitles the appellants to rely on the exclusion period under the proviso to Rule 90 (1) of the Rules. As such, even if a certificate of delay is issued, it is inconsequential to the appellants. In such a situation, the Court declined to apply the overriding objective principle - see: the cases of Njake Enterprises Limited v. Blue Rock Limited and Another (supra); Basilisa Thomas Sawere v. Onest Philip and 2 Others (supra); Martin D. Kumalija & 117 Others v. Iron and Steel Ltd, Civil Appeal No. 70/18 of 2018 and Mohamed Issa Mtalamile and 3 Others v. Tanga City Council and Another, Civil Appeal No. 200 of 2019 (both unreported). For instance, in Martin D. Kumalija & 117 Others (supra) where after the appellant lodged the notice of appeal took no further action in requesting for copy of proceedings, judgment and decree. Thus, the Court observed that: "As m atters stand, there is no p roo f that the appellant requested for a copy o f proceedings 13 from the High Court fo r the purpose o f h is intended appeal within thirty days o f delivery o f the im pugned decision. Moreover, even if it is assum ed that such a request was ever made, there is no indication that the respondent copied and served that letter on the applicants in term s o f Rule 90 (2) o f the Rules for it to be availed with the exclusion under the exception to Rule 90 (1) o f the tim e required fo r preparation and delivery o f the copy from the sixty days' lim itation fo r instituting an appeal." The Court then went on to say on the overriding objective principle: "F in a lly w e wish to comment on Mr. Seka's plea that the overriding objective principle be applied to save the notice o f appeal. We are aware that the Court is enjoined by the provisions o f sections 3A and 38 o f the Appellate Jurisdiction Act, Cap. 141 RE 2018 introduced recently vide the W ritten Laws (M iscellaneous Amendments) (No.3) Act, No. 8 o f 2018 to give effect to the overriding objective o f facilitating the ju st, expeditious, proportionate and affordable resolution of disputes. W hile this principle is a vehicle for 14 attainm ent o f substantive justice, it w iii not help a party to circum vent the m andatory rules o f the Court We are loath to accept Mr. Seka's prayer because doing so would bless the respondent's inaction and render superfluous the rules o f the Court that the respondent thrashed so brazenly." In the present appeal, the situation is different. As alluded earlier, the anomaly is on the aggregate days excluded in the certificate of delay which invalidated the said certificate. Given the circumstances of the case and in the interest of justice, we are of the view that the overriding objective principle is applicable to the appellant. Coming to the 1st point of objection, we think we need not be detained much in determining whether the omission to include the statement of address of service was fatal or not. It is settled law that irregularities or non-compliance which do not go to the root or substance of the matter can be overlooked, provided that there is substantial compliance with the rule and no prejudice is occasioned. In Maneno Mengi Limited & Three Others v. Farida Said Nyamachumbe and Another [2004] T.L.R. 391 the Court said: 15 "'Suffice it fo r us to observe that not in every situation that an irregularity or non-com pliance with a rule renders the appeal incom petent sim ply because the word "shall” is used in the rule ... irregularities o r non-com pliance which do not go to the root or substance o f the m atter can be overlooked provided there is substantial com pliance with the rule read as a whole and no prejudice is occasioned. In this case having regard to the fact that the respondents were served with the memorandum and record o f appeal in term s o f Rule 90 (1), we do not think that in the circum stances o f the case, failure to furnish the statem ent o f address in the record was fatal to the appeal and that prejudice was occasioned to the respondents." Likewise, in the present appeal, the respondent was served with the memorandum of appeal and record of appeal in terms of Rule 90 (1) of the Rules, and in fact, it filed written submissions and raised a notice of preliminary objection. We, therefore, find that, in the circumstance of this appeal, the respondent was aware of the presence of the appeal and was 16 not prejudiced by the failure on part of the appellant to include the statement showing the address for service. The omission is not fatal. In the end, we overrule the preliminary objections and grant leave to the appellant to file a supplementary record of appeal in terms of Rule 96 (7) of the Rules within forty-five (45) days from the delivery of this Ruling to include a proper certificate of delay. DATED at ARUSHA this 22nd day of February, 2022. S. E. A. MUGASHA JUSTICE OF APPEAL This Ruling delivered this 22nd day of February, 2022 in the presence of Mr. Ipanga Kimaay, learned counsel for the Appellant and Mr. Henry Simon, learned counsel for Respondent, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 17