msafiri pharmacetical others vs national bank of commerce ltd 2017 tzca 335 15 december 2017

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MJASIRI. J.A., MWARIJA, J.A.. And MWANGESI, J.A.^ CIVIL APPEAL NO. 104 OF 2016 MSAFIRI PHARMACETICAL & ASSOCIATES LTD ...................... 1st APPELLANT NELVIN AGUSTINO MALETO.................................................... 2nd APPELLANT SYLVANUS PAUL MALETO........................................................ 3rd APPELLANT JANETH CHARLES.................................................................... 4th APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED............................. RESPONDENT (Appeal from the Judgment of the High Court of of Tanzania at Arusha) (Nvanqarika, J.) Dated 20th day of February, 2013 In Commercial Case No. 17 of 2012 RULING OF THE COURT 12th & 15th Dec, 2017 MWARIJA. J.A.: This appeal arises from the decision of the High Court of Tanzania (Commercial Division) in Commercial Case No. 17 of 2012. In their four grounds memorandum of appeal, the appellants are challenging the summary judgment entered against them in the ruling dated 20/2/2017. At the hearing of the appeal on 12/12/2017, the appellants were represented by Mr. John Shirima, learned counsel while Mr. Edwin Dialo, learned counsel appeared for the respondent. The learned counsel for the i respondent had earlier on, by a notice filed on 6/12/2017, raised a preliminary objection consisting of the following three grounds: " 1. That the record o f appeal is defective for want o f a statement showing the address for service o f the appellant and the address for service furnished by the respondent contrary to Rule 96(1) (b) o f the Tanzania Court o f Appeal Rules, 2009 G.N. 368 o f2009... 2. That the record o f appeal contains documents (pages 230-363) that are not relevant to the matter in controversy on the appeal as provided by Rule 96(i) (k) o f the Tanzania Court o f Appeal Rules, 2009 G.N. 368 o f 2009.... 3. That the Appellant failed to include the statement o f address within 14 days from the date o f lodging the appeal, 15th July, 2015 as provided by Rule 96(6) o f the Tanzania Court o f Appeal Rules, 2009 G.N. 368 o f2009...." In his submission, Mr. Dialo dropped the 2nd ground of the preliminary objection and proceeded to argue the 1st and 3rd grounds together. He submitted that upon his perusal of the record of appeal, he found out that the statement showing the address for service of the appellant and statement of the address of service furnished by the respondent are not included in the record. According to the learned counsel, by virtue of the provisions of Rule 96(6) of the Rules, the appellants could have rectified the anomaly by including the said missing documents within 14 days from the date of lodgment of the record of appeal without seeking the leave of the Court and if they failed to do so, should have applied for extension of time under Rule 10 of the Rules. He went on to submit that if the appellants found that the documents were not necessary, they ought to have made an application to a Justice or the Registrar of the High Court under Rule 96(3) of the Rules for the same to be excluded from the record. Mr. Dialo argued thus, that since the appellants did not exercise any of these options, the omission to include the said documents renders the appeal incompetent. He prayed that the same be struck out. Responding to the submission made by the learned counsel for the respondent, Mr. Shirima did not dispute that the said documents have not been included in the record of appeal. He argued however, that the omission is not fatal because the addresses of service are contained in the 3 notice of appeal lodged by the appellants and on the record of appeal. For that reason, he argued, the omission did not prejudice the respondent. He prayed that the objection be dismissed. There is only one issue which arises from the preliminary objection. It is whether or not the omission to include in the record of appeal, the statements showing the address of service of the appellant and the address of service furnished by the respondent, renders the appeal incompetent. As pointed out by the learned counsel for the respondent the requirement of including the said documents is provided for under Rule 96 (1) (b) of the Rules. The provision states as follows:- "96 (1) For the purposes o f an appeal from the High Court or a tribunal\ in its original jurisdiction, the record o f appeal shall[ subject to the provisions o f sub-rule (3), contain copies o f the following documents - (a) .... (b) a statement showing the address for service o f the appellant and address for service furnished by the respondent ana\ as regards any respondent who has not furnished an address for service as required by Rule 86f his last known address and proof o f service on him o f the notice o f appeal." From its wording, Rule 96 (1) of the Rules, makes it mandatory that the documents specified therein including the statements at issue, must be contained in the record of appeal. The requirement is not without purpose. They are necessary for determination of an appeal. In the case of Said Salim Bakhresa & Co. Ltd v. Agro Processing and Allied Products Ltd & Another, Civil Appeal No. 51 of 2011 (unreported), the Court had this to say: "From the numerous decisions of this Court and other Courts in East Africa o f similar jurisdiction on the provision, there are two categories of documents for the purposes of appeal. The first category is that o f primary or core documents, which are all those listed in Rule 96 (1) o f the Rules in the case o f first appeal, and, in addition those listed in Rule 96 (2) in the case o f second and third appeal . . . . The second category is those such other documents which a party may consider necessary for the purpose o f determining an appeal // [Emphasis added] 5 On the effect of a failure by the appellant to include any of the primary or core documents listed in Rule 96 (1) of the Rules, the Court held as follows:- " . . all the documents listed in Rule 96 (1) (a) -(k) are primary or core documents, and unless expressly excluded under sub-rule 3, they must be in the record of appeal, if there is to be a competent appeal" [Emphasis added] Having further, considered the decision in the case of Kiboro v Posts and Telecommunications Corporation [1974] E.A. 156, the Court stated as follows: "Compliance with that rule constitutes a condition precedent to the propriety o f the appeal lodgment. This has been taken to mean that the omission o f any part o f a document in the primary category renders the appeal incurably defective and therefore incompetent" The same stance was taken in the case of Mariam Idd (as an Administratrix o f the Estate o f the late Mbaraka Omari) v. Abdulrazack Omary Laizer (as an Administrator o f the Estate o f the late Abubakar 6 Omari & Another), Civil Appeal No. 82 of 2014 (unreported). In that case, the appellant omitted to include in the record of appeal among others, the documents mentioned under paragraph (f) of Rule 96 (1) of the Rules. The Court held that the omission rendered the appeal incompetent. On the basis of the above stated position, we similarly find this appeal incompetent for the appellants' failure to include the statements showing the address of service of the appellant and the address for service furnished by the respondent contrary to Rule 96 (1) (b) of the Rules. As a consequence, the appeal is hereby struck out. Each party shall bear its own costs. DATED at ARUSHA this 14th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true codv of the original. DEPUTY REGISTRAR COURT OF APPEAL