CVIL APPEAL NO 312 OF 2020 MURTAZA MOHAMED RAZA VIRANI VS MEHBOOB HASSANALI VERSI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: NDIKA. J.A., KEREFU, J.A., And NGWEMBE, 3.A.1 ) CIVIL APPEAL NO. 312 OF 2020 MURTAZA MOHAMED RAZA VIRANI ........................................ APPELLANT VERSUS MEHBOOB HASSANALI VERSI................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) fMruma, 3.1 ) dated the 13th day of December, 2016 in Commercial Case No. 281 of 2002 RULING OF THE COURT 10th & 17th July, 2024 NDIKA, J.A.: The appellant, Murtaza Mohamed Raza Virani, filed this appeal (hereinafter "the appeal") in this Court against the respondent, Mehboob Hassanali Versi, upon being dissatisfied by the decision of the High Court, Commercial Division (Mruma, J.) dated 13th December, 2016 in Commercial Case No. 281 of 2002. On 19th August, 2022, this Court (Mkuye, Korosso, and Maige, JJ.A) granted Civil Application No. 449/01 of 2020, which was filed by the appellant herein together with Mrs. Rubab Mohamed Raza Virani (hereinafter "Mrs. Virani"). The purpose of that application was to seek leave to amend the record of appeal in relation to the appeal to cite Mrs. Vi rani as the second appellant in multiple sections of the record. Despite the Court's order that the amended record of appeal be lodged within fourteen days, none was submitted by the end of the said period on or around 2nd September, 2022. Nevertheless, the appellant and Mrs. Virani filed Civil Application No. 428/01 of 2023 (hereinafter referred to as "the application") to extend the said prescribed period. Their motion was based on the claim that they were unaware that the Court had issued the aforesaid order in their favour until 26th May, 2023. Consequently, they were unable to submit the intended amended record of appeal within the designated timeframe. On 10th July, 2024, we heard both the appeal and the application. At first, we reviewed the application and reserved our decision. Subsequently, we extended an invitation to the parties to discuss whether the appeal would remain valid if the application came to naught. Surely, the application has been unsuccessful, as we have determined that: "... we conclude that the supporting affidavit is insufficient to substantiate the assertion that the applicants waited to be informed o f the ruling date in Civil Application No. 449/01 o f 2020 and only became aware o f the status o f the matter on 2&h May, 2023. We entertain no doubt that the applicants dawdled in taking steps to perfect the record o f appeal after the Court made the order in their favour." Mr. Sylvester E. Shayo, learned counsel, who, with the assistance of Ms. Bernadetha Shayo, also learned counsel, appeared for the appellant, addressed us on the aforementioned issue. He downplayed the applicants’ failure to modify the record of appeal, arguing that the amendment sought was inconsequential since it was solely intended to reflect the name of Mrs. Virani in four portions of the record as the second appellant. He further stated that the appeal could still be considered and decided on its merits in the absence of the said amendment. Given this, he urged us to apply rule 96 (8) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), as amended by Government Notice No. 188 of 2024, and proceed with the hearing and determination of the appeal on the merits. Mr. Thomas E. Rwebangira, the learned counsel for the respondent, argued that the appeal should be dismissed with costs because the appellant failed to comply with the Court's order to amend the record of appeal, which resulted in the order lapsing in accordance with rule 50 (2) of the Rules upon the expiration of the prescribed period. He was unwavering in his conviction that the appeal record was incomplete in the absence of the proposed amendment. He further stated that the facts of the case rendered Rule 96 (8) of the Rules inapplicable. 3 We have duly considered the contending submissions of the learned counsel for the parties. At first, we would underline that the record of appeal is deficient, but it could have been perfected by effecting the amendment for which leave was duly granted. Indeed, the breadth of the amendment sought was so exceedingly restricted. For it was meant to insert the name of Mrs. Virani in four areas of the record of appeal as the second appellant. However, given the fact that the Court was moved by the appellant and Mrs. Virani to issue an order for perfecting the record of appeal, we have a strong aversion to trivializing the said order, which the appellant and Mrs. Virani brazenly disregarded. In our view, since they passed up the chance to cure the defects in the record of appeal without any good cause, we are unprepared to hear and determine the appeal based upon an imperfect record of appeal. This situation raises the question of whether the appellant and Mrs. Virani had any intention of genuinely and seriously prosecuting the appeal. As previously mentioned, Mr. Shayo implored us to disregard the failure to amend the record of appeal and instead proceed with the hearing and determination of the appeal on its merits in accordance with rule 96 (8) of the Rules. The said provision specifies that: "(8) Where leave has been granted under subrule (7) o f this rule, and the supplementary record is lodged, no subsequent application for filing a supplementary record shall be entertained by the Court, and the Court shall strike out the appeal unless it is satisfied that the incompleteness o f the record does not vitiate the appeal\ in which case the Court may proceed with hearing and determination o f the appeal." [Emphasis added] Certainly, the above provision must be considered in conjunction with sub-rule (7) of rule 96. The Court is granted the authority to order the filing of a supplementary record of appeal to introduce any document that has been omitted from the record of appeal, either on its own motion or upon an informal application made by a party, as outlined in sub-rule (7). Sub-rule (8) above requires the Court to strike out an appeal that remains incomplete, even though a supplementary record of appeal has been submitted with leave granted under sub-rule (7). However, the Court may only spare a deficient appeal and proceed with its hearing and determination if it is satisfied that the incompleteness of the record does not vitiate the appeal. With respect, sub-rule (8) is not pertinent to the current situation. It is explicitly stated that it is only pertinent to an appeal for which leave to file a supplementary record of appeal under sub-rule (7) was granted and the supplementary record was submitted. Leave to amend the record of appeal was granted by the Court in this instance under rule 111 of the 5 Rules, not rule 96 (7). In accordance with Rule 50 (2) of the Rules, the leave to lodge the amended record ceased to exist upon expiry of the prescribed period of fourteen days. In sum, we are not convinced by Mr. Shayo's argument that we should disregard the failure by the appellant and Mrs. Virani to amend the record of appeal and instead proceed to hear and determine the substance of the appeal. We conclude that the appeal is incompetent due to the defective record of appeal. Consequently, we strike it out with costs. DATED at DAR ES SALAAM this 15th day of July, 2024. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 17th day of July, 2024 in the absence of the Appellant and Mr. Thomas Eustace Rwebangira, learned counsel for the Respondent is hereby certified as a true copy of the original.