20081007 TZCA Dar es Salaam 4

~ IN THE COURT OF APPEAL OF TANZANIA · AT DAR ES SALAAM (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And OTHMAN, J.A.) CIVIL APPEAL NO. 31 OF 2008 M/S BUNDA OIL INDUSTRIES LIMITED ......... uAPPELLANT VERSUS DUNIA WORLDWIDE TRADING COMPANY ..... :RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es salaam) (Luanda, J.,) dated the 7 th day of November, 2007 in Commercial Case No. 43 of 2006 RULING OF THE COURT 9th Day of September, 2008 & 7th \October, 2008 OTHMAN, J.A:. With prior notice, the appellant moved the Court on an informal application under Rules 3(2) (b) and 45 (3) of the Court of Appeal Rules, 1979 (hereinafter referred to as the Rules) that it will:- .. -- '1/nformally apply to the Honourable Court to adjourn the hearing so- as 1o enable the "' i'-t, ~ ,. ,tit "'1' \~i' .,/' . <::,,•,•·""' . r appellant to obtain and file the supplementary record'~ At the hearing, on 9.09.2008, learned counsel Captain Kameja and Mr. Kalolo-Bundala, represented the appellant and Dr. Lamwai and Mr. Kamara, the respondent. A frontal challenge taken up that we are constrained to address at the outset is whether or not instead of an informal ( application for an adjournment under Rule 45(3) (a), the appellant ought to have lodged a formal application under Rule 46(1) .. Dr. Lamwai submitted that a formal application should have been preferred stating the reasons for an adjournment supported by an affidavit. That there was no affidavit by Mr. Maira, Advocate that he had received from the High Court an inadequate copy of its trial \ proceedings. That the instant informal application was a convenient way to blame Mr. Maira for incompetence without calling him to defend himself or to present a true picture. The court. is left, he - urged, with learned counsel for the appellant's statement from the · bar concerning the reception of documents by another advocate who 2 is not involved in the case on appeal. Applied formally and supported with an affidavit the Court would have satisfied itself that the copies of proceedings supplied to the appellant by the Court were incomplete and that there was no lapse in the preparation and certification of the record of appeal by learned counsel for the appellant. That moreover, by an informal application, the respondent was deprived of an opportunity to answer that the parties were supplied with correctly certified copies of the trial proceedings. He submitted that an informal application is non-committed. It allows counsel to make bare statements in court which cannot be opposed at the bar. Mr. Kalolo-Bundala's short answer was that the Court may wish to direct the filing of a formal application~ Rule 45(1 ), (2) and (3) governs the form of application to the Court .. They can either . be a formal application by notice of motion . and .?upported by one or more affidavits of the applicant o~ some other person or persons having knowledge of the facts (Rule 46(i)) or 3 an informal application made in the course of hearing or made informally by the letter upon consent of all parties (Rule 45(3) (b)). Having considered the nature of the adjournment sought, the patent reasons either relied upon or on which it is being vigorously opposed, with respect, we are of the considered view that .in the circumstances and facts appearing it would have been proper for the appellant to have sought an adjournment by way of formal application under Rules 45(1) and 46(1) and (2). One, the appellant imputed acts or conduct by third. parties, including an advocate who is not on record on appeal. Two, it also impugned acts on the part of the High Court on the supply of defective copies of trial proceedings without any affidavit evidence of the Registrar or any registry staff. Third, by proceeding informally, it deprived the respondent opportunity to mount an affidavit in reply under Rule ( \ 53(1) to challenge the bare assertions made at the bar and relied upon as ground for the ,grant of an adjournment. Of course, each case must be determined on its own set of circumstances and facts. 4 ' I On our part, given the advance notice of an informal application to adjourn made unde·r Rule 3(2) (b) and 45(3) on 5.09.2008 before the hearing on 9.09.2008, and the reason contained therein; the mutual acknowledgment by the parties of the defects in the record of appeal lodged on 19.03.2008; the extent of prejudice suffered or likely to be borne by the respondent and the available material on which a just decision on the issues raised can be judiciously made, we are of the considered view that much as the proper course would have been for the appellant to have preferred a formal application the prayer for a~ adjournment of the appeal hearing can conveniently be determined on the instant informal application. Adverting to the application, Mr. Kalolo-Bundala, submitted that the adjournment ·of the .appeal hearing was being sought ,in order to file a supplementary record of appeal whose filing under · Rule 92(1) does not require leave of the Court in order to properly answer the respondent's grounds_ of cross-appeal contained in its notice of cross-appeal lodged on 11.04.2008. That the adjournment 5 - would allow a better record to supplement the current record of appeal. Learned counsel for the appellant went on to submit that the copies of the proceedings in High Court (Commercial Division) Commercial Case No. 43 of 2006 sought by and supplied to Mr. Maira, Learned advocate who appeared for the appellant before that court were insufficient for the appellant to reply to the respondent's cross-appeal. Leading the Court through the record of appeal he submitted that parts of the evidence of PW1 and DW1 were missing; that there was inconsistency in the chronology of the narration of witnesses such as that of PW2 and PW4 all appearing together on the same pages for example at pages 175 to 176; lack of order in the recorded cross-examination and re-examination of PW2 and PW4 and that the transcript of the testimony of the witnesses ( \ ; was not seriatim. ExplainLng why a proper record of appeal was not filed, Mr. Kalolo-Bundala submitted that copies of the trial proceedings in the 6 record of appeal were supplied as such to Mr. Maira by the High Court on 24.01.2008 (ERV 304 20685). That by the time they were instructed as counsel, time had elapsed and they had considered that the missing parts of the record had no effect on the appellant's memorandum of appeal lodged on 19.03.2008 until the respondent had filed its notice of cross appeal on 11.04.2008. He invited the · Court to grant the prayer for an adjournment in order to do justice to the appeal and as the respondent would not be prejudiced. Opposed, Dr. Lamwai, first,· submitted that the appellant had admitted to the defects having shown the Court the inadequacies of the record of appeal. That it had conveniently maintained silence how the omitted evidence of witnesses will not be required on appeal. That moreover, the appellant had known of those defects as early as 27.02.2008 when it . certified the record of appeal as a . true 11 copy of the original record'~ It was, he urged, oblivious to the defects. That mere statements at the bar. _cannot be evidence of f-ellow up by learned counsel. That the equitable seose of_ the Court cannot now be invoked to regularize an irregular record. Relying on 7 The Editor, The Guardian News Papers and Another V. Haruna Mgude, Civil Appeal No. 83 of 2001 (CA) (unreported) he submitted that the . appellant should have rectified the record of appeal before the appeal was cause listed for hearing. That an application to rectify the record cannot be made now as the respondent had come to an appeal hearing. Not to that of an application that was not there. Second, Mr. Lamwai submitted that the application for adjournment was intended to regularize through the backdoor, or otherwise a seriously defective record of appeal. That the omissions of the testimony of PW1 was about 100 pages and the missing parts of the cross-examination of PW2 was 40 pages. These defects, he insisted, went to the root of the matter. ( That apart, he went on to submit ·that the appellant was avoiding the definition of a supplementary record under Rule 92 ( 1) . . as defined in Mpangaos and 902_others V Tanzania Portland Cement Co. Ltd, Civil Appeal No. 10 of 2007, (CA) (unreported) and ,,. 8 Kiboro V Posts and Telecommunications Corporations (1974) E.A. 155. That a supplementary record is not aimed at correcting a record, but only adding to it. That the appellant was trying to circumvent a defective record of appeal in terms of the mandatory requirements of Rule 89(1) (d) and (e). Relying on Kapinga & Co. Advocate V. National Bank of Commerce Ltd, Civil Appeal No. 42 of 2007 (CA) (unreported) .he submitted that a defective record of appeal cannot be filed in order to comply with Rule 89(1) (d) and (e). A dead horse, he urged, cannot be revived. That the proper action to be taken by the appellant, having admitted that the record of appeal was fundamentally defective and having taken .the Court through the glaring defects was to. concede that the appeal is incompetent and should be struck out In rejoinder, Mr. Kalolo-Bundala relying on Arcacdo Dennis Ntaganzwa v. Buyogera J. Bunyambo, Civil Appeal No, 51 of 1996 (CA) (unreported) submitted that the defects in the record of appeal were not attr~butable to the parties but to the Court That 11 what the appellant certified as a true copy of the original"was what 9 it was supplied with by the Court as copies of the proceedings. That both parties fell into the same error and the respondent should not complain as it had an option to file a supplementary. record under Rule 92 (1), which it did not. That as the Court did in Arcada Ntaganzwa's case (supra)· it is in its discretion to order an adjournment and the filing of a supplementary record of appeal. He distinguished Haruna Mpagaos's case (supra) as it did not deal with an adjournment as the case at hand. That aside, Mr. Kalolo-Bundala submitted that given the saving clause in Rule 89(1) which covered documents referred to in Rule 89(1) (d), (e) and (f), the omitted portions of the evidence of PW1 in the record of appeal were saved and need not have been filed by the appellant as in its view they were not relevant to the determination 1 of the appeal. That the word 'sha//"in the saving clause does not necessarily connote a mandatory reference as held in Arcado Mtaganzwa-'s case (supra). He invited the Court to grant an adjotirnment which the appellant had made in good faith in order to file a supplementary record. 10 It is common ground that the record of appeal is incomplete. The extent of the irregularities and whether or not it can be cured by a supplementary record for which an adjournment of the appeal hearing is sought by . the appellant or for that matter incurably defective as urged by the respondent is what the parties are at variance. This must take us to a close examination of the record of appeal. Therein, the trial proceedings reveal that following the framing of issues on 11.07.2007, the first witness to be produced and examined by the respondent (the plaintiff) was PW6 (Salvan Chinkambi),not PW1 (Murtaza Dewji). PW6 is also recorded as having testified after PW2, PW3 and. PW4 (at p. 275). PW2 is recorded as Simba Nigulile Kivinge (at pp 170-175) while the respondent's final submissions has Narendra C. Sheth as PW2 ( at P~ 423). The recorded evidence _9f PW2 ·and PW4 appears inter twined on the same page in numeroys pages .(p.p 175- 176,181,186,188-189). The evidence of PW1 has been glaringly 11 ommitted. In sum, the trial proceedings show that witness testimony is neither chronological nor coherent; it is at time widely sparced out one witness recorded as testifying in between several witnesses and reappearing thereafter and that of two witnesses (PW2 and PW4) interwoven on one and the same page. With respect, the record is an incomprehensible giz-saw puzzle from which we are unable to discern the witnesses narration of the cases pleaded ·by the parties. Mr. Kalolo-Bundala principally submitted that these defects were curable by a supplementary record. On the other hand, Dr. Lamwai forcefully submitted that incurably defective, nothing could be added to them in order to correct a record that was irregular in terms of Rule 89(1) (d) and(e). The issue boils down to whether or not in the circumstances and facts a supplementary record of appeal· can validly be filed by the appellant on adjournment of t_ne aQ_peal hearing to cure the admitted, and in our judgment, serious irregularities in the whole trial 12 proceedings mandatorily contained in the original record of appeal. Rule 89 (1) (d) and (e), requires that the record ofappeal contain as documents, the trial Judge notes of the hearing and the transcript of any shorthand notes taken at the trial, respectively. In Robert Edward Hawkins and Another V. Patrice P. Mwaigomole, Civil Application No. 109 of 2007, (CA) (unreported) decided on 26.02.2008, the Court in construing the expression ( "supplementary record of appeal" under Rule 92 had this to state:- "a supplementary record of appeal; presupposes the existence of complete primary record of appeal lodged by an . appellant. Complete in the legal sense that it is containing all necessary or core documents as itemized in rule 89(1). As rule 92{1) unequivocally directs, the supplementary record of appeal may be lodged only for the purpose of making good some minor deficiencies in the re_cord_ of appeal not affecting the competence of the appeal. Hence the deliberate use of the words "containing copies 13 of any further documents or additional parts of documents which are, in his opinion, required for the proper determination of the appeal. " A supplementary record of appeal, therefore lodged by either the respondent or appellant or even both, in my settled view, should not supplement the contents of the record of appeal. It should add something to the otherwise complete record of appeal further to those mentioned in rule 89(1), in order to make it easy in the view of the party lodging it, for the appeal to be properly and conclusively determined'~ [Emphasis added]. In Haruna Mpagao's case decided on 10.03.2008, the Court pertinently echoed thus: ''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· 14 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 inay be lodged for the purpose of making good deficiencies in the record of appeal not affecting the competency of the appeal. A supplementary record of appeal should, therefore, add something to the otherwise complete record of appeal'~ [Emphasis added]. In both cases the Court applied Kiboro's case, which it considered to have rightly interpreted Rule 89(1) of the Court of Appeal for East Africa Rules, 1972, which is in pari materia with Rule 92(1) of our Rules. With respect, the above considered Haruna Mpagaos's case cannot be said to be inapplicable because it did not deal with an adjournment as strenuously argued by learned Counsel for the appellant. Bearing in mind the settled mear}ing of a supplementary record :j~ of appeal, in our considered view the appellant cannot validly file 15 .. under Rules 92(3) a fresh supplementary record of appeal to i supplement the contents of the original record of appeal, incomplete, incomprehensible and seriously defective in order to make it good. Commutatively, the deficiencies we have pointed out are not trivia!, They go to the root of the record of appeal and to the competency of the appeal in terms of non compliance with the mandatory requirement of Rule 89 (1) (d). In an attempt to clinch an adjournment in order to file a supplementary record of appeal, Mr. Kalolo-Bundala advanced the argument that the omission of the evidence of PWl in the record of appeal was proper as under the.saving clause of Rule 89(1) it was not necessary to the matter in controversy on the appeal to have· his recorded evidence in the record of appeal. We would agree with Dr . . Lamwai that there was no showing at all in what way the omission of that witness's testimony in the record of trial proceedings was not relevant to the. appellant's nine (9) grounds of appeal contained in its memorandum of appeal lodged on 27.02.2008. 16