CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: MKUYE. J.A., KITUSI, J.A. And ISSA, J.A.: CIVIL APPEAL NO. 312 OF 2022 NORTH MARA GOLD MINE LIMITED........................................ APPELLANT VERSUS KIRIBO LIMITED................................................................ RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, (Commercial Division) at Dar es Salaam) dated the 14th day of March, 2022 in Misc. Commercial Application No. 66 of 2021 RULING OF THE COURT 13th & 20th August, 2024 ' MKUYE, 3.A.: This is an appeal against the Ruling and Drawn Order of the High Court (Commercial Division) in Miscellaneous Commercial Application No. 66 of 2021 issued by Hon. Magoiga 1 on 14/3/2022. The facts leading to this matter are as follows: That, parties to this appeal in 2015 entered into a contractual agreement, Haulage of Materials from Portal - No. CO-NMA-2015-020 in which the respondent was contracted to provide services at the appellant's mine site of loading and haulage of ore materials from its underground portal to a waste dump area. The respondent commenced work. On 1/3/2016 the parties entered into a variation agreement in which, essentially the clause pertaining to governing law and dispute resolution was amended. The governing law was changed from English Law to the laws of South Africa. It was also agreed that in resolving disputes internal mechanisms first be attempted. It would appear that the appellant was not contented with the manner in which the respondent performed its obligations under the contract and on 19/3/2020 she issued a notice of termination of the contract to the respondent. At the time of termination of the agreement, the respondent owed the appellant a sum of USD 2, 383,685.00 being outstanding back charges. The parties then entered into a Debt Acknowledgment Agreement in which the respondent also committed itself into repaying the amounts so outstanding. Upon termination of the contract, the respondent instituted a suit against the appellant (Commercial Case No. 128 of 2021) seeking damages for the wrongful withholding of the equipment by the appellant. The appellant, on her part, expressed its intention to commence arbitral proceedings before the Arbitration Foundation of South Africa (AFSA). However, the arbitral proceedings could not take off but instead the appellant filed a petition in the High Court, which is subject of this appeal, seeking to enforce the arbitration clause contained in the agreement and to stay the proceedings in Commercial Case No. 128 of 2021 to enable the parties to subject themselves to arbitration as spelt out in the agreement. Among the issues for the determination by the High Court was whether the arbitration agreement in the Haulage Agreement dated 2015 is operative after the Acknowledgment of Debt Agreement dated 13/9/2019, which was the subject of notice of arbitration to South Africa. In its determination, the High Court held that the arbitration arrangement in the Haulage Agreement which the parties had agreed was changed by virtue of the Acknowledgment of Debt Agreement and ceased to operate. Besides that, it found that the said Debt Agreement had changed the forum for dispute resolution from South Africa to Tanzania. It dismissed the petition. Aggrieved with that decision, the appellant has lodged an appeal to this Court on four grounds of appeal which for a reason to be apparent shortly, we do not intend to reproduce them. When the appeal was called on for hearing, Dr. Wilbert Kapinga appeared representing the appellant whereas Messrs. Emmanuel Msengezi and Michael Mahende represented the respondent. 3 At the outset, Mr. Msengezi rose and sought under Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to address us on the incompleteness of the record of appeal. He contended that the record of appeal is incomplete for non­ inclusion of the plaint and its annexures, the written statement of defence and rejoinder pleadings in Commercial Case No. 128 of 2021 as well as the Notices of Arbitration filed in South Africa and in this Country. He reasoned out that, those pleadings were necessary documents since they bear the claim which the two agreements subject to the petition were imbodied in. He pointed out that, the fact that the petition, subject to this appeal, was filed in view of staying the proceedings in Commercial Case No. 128 of 2021 at the Commercial Court, there was no way the trial judge could have determined the issue of staying the suit unless he was acquainted with the facts in the main case adding that the said petition could not exist on its own as it hinges on the main case. The learned counsel stressed also that unless this Court is availed with such pleadings as it happened to the trial Judge, it would be disadvantaged in comprehending on how to determine the grounds of appeal particularly, ground No.3 in which the appellant impugns the High Court Judge in determining that the Tanzania courts had jurisdiction to deal with matters 4 in connection with the Haulage Agreement which is alleged to contain an Arbitration Clause. In relation to the notices of arbitration, Mr. Msengezi submitted that the notices filed in the Arbitral Tribunal in South Africa and in Tanzania are important documents as they will enable the Court to comprehend the nature of the dispute for determination in this appeal. This is so because, he said, they are referred to in the pleadings in Commercial Case No. 128 of 2021, the petition in Miscellaneous Commercial Application No. 66 of 2021, the Ruling of the trial court in Miscellaneous Commercial Application No. 66 of 2021 and the decision in regard to the Notices. And yet, such notices and decision especially on notices is the basis of Ground No. 2 in this appeal. He thus, stressed that unless such documents are included in the record of appeal, the Court would not be in a position to determine the appeal. In this regard, he prayed to the Court to either strike out the appeal or direct the appellant or the respondent to file a supplementary record of appeal that would include those documents. In reply, Dr. Kapinga in a manner that seemed to oppose Mr. Msengezi's prayer, submitted that the appellant was not obliged under the law to incorporate such documents as it does not provide for such a requirement. He was of the view that if the respondent considered that they are necessary documents, she could have brought them under Rule 99 (1) of the Rules. The learned counsel went on contesting the respondent's prayer for striking out the appeal for the reason of missing documents contending that is not a proper remedy in the wake of the change in law allowing the filing of supplementary record of appeal and even allowing the respondent to file one under Rule 99 (1) of the Rules. He submitted further that, though the respondents have relied on Rule 96 (1) (c) and (k) of the Rules, the pleadings for purposes of this appeal are those in Miscellaneous Commercial Application No. 66 of 2021 to which the respondent has not shown as to which documents are missing. In his view, the documents under Rule 96 (1) (c) of the Rules are unnecessary and even those under Rule 96 (1) (k), he did not find them to be necessary for the determination of the appeal. In relation to ground No.3, it was submitted that it can be determined without the pleadings (plaint and written statement of defence) because it is not established on how the Court would not understand the ground of appeal. Otherwise, he insisted that the record of appeal contains all proceedings as per Rule 96 (1) (d) of the Rules and therefore it is complete. At any rate he argued that if the anomaly raised affects the appeal, it is the appellant who would suffer. 6 Dr. Kapinga argued further that according to section 13 of the Arbitration Act, very few documents are required in lodging the petition which in essence seeks to stay the proceedings and no other documents. In the end, he urged the Court to refrain from granting the prayer with no order as to costs. When probed if he was in qualms if the respondent is ordered to file such supplementary record of appeal, he welcomed such offer. In rejoinder, Mr. Msengezi, essentially joined hands with Dr. Kapinga in that if the appeal is weak, he is the one to suffer. Having examined the preliminary matter so raised and the rival submissions from either side, we think, the main issue for our determination is whether the prayer for inclusion in the record of appeal of the pleadings in Commercial Case No. 128 of 2021 and the notices of arbitration is meritorious. We are mindful that the record of appeal is lodged in Court under Rule 90 (1) of the Rules. Rule 96 of the same Rules provides for the contents of the appeal. It lists many documents to be included in the record of appeal. For ease reference, we take liberty to reproduce it as hereunder: 7 "96.- (1) For the purposes of an appeal from the High Court or a tribunal, in its originaljurisdiction, the record of appeal shall, subject to the provisions of subrule (3) contain copies of the following documents- (a)~ (b)- (c) the pleadings; (d) .... (e ) .... (f) .... ■ (9) (k) such other documents, if any, as may be necessary for the proper determination o f the appeal, including anyinterlocutoryproceedings which may be directly relevant..." The documents required to be included in the record of appeal as per Rule 96 (1) (c) are pleadings. "Pleadings" essentially mean the plaint or written statement of defence (including a written statement of defence filed by a third party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII of the Civil Procedure Code, Cap 33. In our case, these documents may be equated to the pleadings which were used in Miscellaneous Commercial Application No.66 8 of 2021 which include the petition, reply to the petition and rejoinder to the reply to the petition. On the other hand, Rule 96 (1) (k) of the Rules provides for other documents, if any, as may be deemed necessary for the determination of the appeal which, we think, may be of relevance to our case. We say so because, as opposed to the pleadings under Rule 96 (1) (c) of the Rules which would entail the documents which were used in the impugned decision, the documents envisaged under Rule 96 (1) (k) of the Rules would be other than those emanating from the impugned decision. We take this view, because of the wording used in that paragraph like "such other documents, //^/"meaning that such documents may not emanate from the matter that was heard and determined, and that it would depend on their availability and their necessity for the proper determination of the appeal. In this matter, as was alluded to earlier on, Mr. Msengezi's argument is that it would be cumbersome to this Court to determine the appeal at hand unless the documents as per Rule 96 (1) (c) and (k) of the Rules are allowed to be included in the record of appeal. In other words, the pleadings in Commercial Case No. 128 of 2021 and notice of arbitration lodged in South Africa and in Tanzania ought to be incorporated in the record of appeal to enable the Court to properly determine the appeal at hand. In the first place, we note as was observed by counsel for both parties the pleadings in Commercial Case No. 128 of 2021 and notices of arbitration filed in South Africa and Tanzania are not included in the record of appeal. Secondly, we think such documents cannot fall under Rule 96 (1) (c) of the Rules because they did not form part of the petition in Miscellaneous Commercial Application No. 66 of 2021 as was rightly argued by Dr. Kapinga. They related to Commercial Case No. 128 of 2021 and the applications for arbitration concerned. Yet, looking at the memorandum of appeal it is notable that the appellant is complaining on among other things, matters which relate to the notice of arbitration and the claims in Tanzanian courts to which their pleadings are not included in the record of appeal. For clarity, we reproduce grounds of appeal Nos. 2 and 3 as hereunder: "(2) The learned High Court Judge misdirected himself in fact and law in holding that the notice ofarbitration is based on the claim that was acknowledged in the September 2019 Acknowledgment of Debt Agreement>which not only altered the choice of forum but also made the Haulage Agreement 10 2015 in terms of arbitration change from South Africa to Tanzania (3) The learned High Court judge misdirected himself in fact and law in failing to determine that the Respondent's claim in the Tanzanian courts arises out of the Haulage Agreement 2015, not the September 2019 Acknowledgment of Debt Agreement, and is therefore subject to the arbitration clause therein." [Emphasis added] As it is, much as the appellant seems to invite the Court to consider the said grounds with a view to reversing the Ruling of the High Court and order the parties to refer their dispute for arbitration, we are of the view that, we cannot be in a position to do so in the absence of the pleadings in Commercial Case No. 128 of 2021 and the notices of arbitration filed in both South Africa and in this Country. We are of a considered view that, without such documents which we find to be necessary, this Court cannot be able to arrive at a proper determination of the appeal. Nevertheless, it is notable that in the course of their submissions both counsels seemed to be at one that the said documents could be filed by the respondent under Rule 99 (1) of the Rules. Although Dr. Kapinga initially, contended that if the respondent saw such documents necessary ii for the determination of the appeal, she could have lodged a supplementary record earlier instead of waiting for such a long time since 2022 without taking any action, he did not contest the offer made by his counterpart of allowing them to do so. Much as we agree with Dr. Kapinga that he could not have included them as they did not form part of the record in the High Court, we are of the view that considering that the gist of such documents has been referred to by the High Court in the impugned Ruling, memorandum of appeal (grounds 2 and 3), written submissions for and against the appeal, such documents are necessary for the proper determination of the appeal. In this regard, we agree with Mr. Msengezi that such documents ought to be incorporated in the record of appeal. In the same vein, we do not agree with Mr. Msengezi's proposition of striking out the appeal with the wake of the change of the law allowing the rectification of anomaly by way of filing a supplementary record of appeal which will include the missing documents. In view of what we have endeavoured to discuss above, we grant the prayer. Consequently, in terms of Rule 99 (1) of the Rules, we order that the respondent should file a supplementary record of appeal which will include the pleadings in Commercial Case No. 128 of 2021 and the 12 Notices of Arbitration filed in South Africa and in this Country within sixty days from the date of this Ruling. It is so ordered. DATED at MWANZA this 19th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 20th day of August, 2024 in the presence of Ms. Rosemary G. Makori holding brief for Dr. Wilbert Kapinga learned Counsel for the Appellant and Mr. Michael Mahende learned Counsel for the Respondent, is hereby certified as a true copy of the original. 13