ose power solutions limited vs airtel tanzania limited 2023 tzca 17787 31 october 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A.. FIKIRINI, J.A And KHAMIS, J.A.l CIVIL APPLICATION NO. 45/01 OF 2022 OSE POWER SOLUTIONS LIMITED................................................ APPLICANT VERSUS AIRTEL TANZANIA LIMITED....................... ............................... RESPONDENT (Application for Review of the decision of the Court of Appeal of Tanzania at Dar es Salaam) fLila. Korosso. Kente, JJAO dated the 20th day of December, 2021 in Civil Appeal No. 206 of 2017 RULING OF THE COURT 25th Sept. & 31st October 2023 KHAMIS. J.A.: This application turns on whether the Court of Appeal having determined an appeal on merits is vested withjurisdiction to re-open the issues by way of review in terms of rule 66 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It arises from a challenge by Ose Power Solutions Limited, hereinafter to be referred to as the applicant or Ose, to the Judgment of this Court in Civil Appeal No. 206 of 2017 handed down on 20th day of December, 2021 which overturned findings of the High Court, i Commercial Division (Teemba, J), dated the 14th day of July, 2017. T ie application sought to review the decision on the ground that it was based on the manifest error on the face of the record resulting to miscarriage of justice. Airtei Tanzania Limited, hereinafter to be referred to as the respondent or Airtei, was the appellant and a successful party in the said appeal. The application was brought by a notice of motion made under section 4(4) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA), and rule 66 (1) (a), (c), (d) of the Rules, The factual backdrop against which the application arises for consideration may be summarized as follows: Throughout the time from 2009 to 2012, Ose supplied some assorted products such as generators, spare parts, fuel, batteries and other electrical goods to Airtei and rendered professional services in their installation at Airtei Tower and other sites. When parties differed on the outstanding dues in 2012, Ose filed a dispute in the High Court, Commercial Division, designated as Commercial Case No. 40 of 2012. With leave of the Court, the plaint was amended to include additional documents to be relied upon. When the amended plaint was filed on 17th day of May, 2013, annexture BLC5 was introduced but annexture BLC1-4 which were annexed in the original plaint, were left out. However, the amended plaint suggested to adopt the un - attached annextures BLC1-4 by referring to them in paragraph 5 thereof. Upon trial, the High Court found Airtel liable for breach of contract related to supply of goods and services. Accordingly, it was ordered to pay a sum of TZS. 1,920,473,771.79 and USD $ 143,484.72 as costs of goods and services supplied and further sum of TZS. 20,000,000.00 as general damages. Aggrieved, Airtel preferred Civil Appeal No. 206 of 2017 which was determined by the Court on 20th day of December, 2021. The Court held that, the High Court erred in considering and relying on the invoices and other documents which were improperly admitted. In allowing the appeal, the Court concluded that all reliefs granted by the High Court were not justified. TTie grounds upon which the application is premised are set out in the notice of motion and the supporting affidavit sworn by Tito Elisante Kingu, Managing Director of the applicant, thus: i) The decision was based on m anifest error on the face o f the record resulting in the miscarriage o fjustice. 3 ii) The Court while reevaluating the evidence it failed to take into account some m aterial points or circumstances and thereby reached to an erroneous decision. iii) Assuming that the tria l court incorrectly referred to the previous annextures B LC 1-4 which were annexed to the original plaint, which is denied, s till the Court never considered the claimed sum o f money proved by the applicant under annextures BLC - 5 and others which were annexed to the amended plain t iv) As evidenced in the contents o f the affidavit in support o f the notice o f motion, there are good grounds for reviewing part o f this Court's decision. The application was strongly contested by Airte! which presented an affidavit in reply sworn by one David Marco Lema, its principal officer on the 17th day of March, 2022. Lema deposed that, the Court properly applied and interpreted the rules on admissibility of evidence as provided in the statutes and case law. He further deposed that, as the first appellate court, this Court properly re-evaluated the evidence on record and arrived at a just and fair decision. At the hearing of the application, the applicant was represented by Messrs. Francis A. Mgare and Jethro Turyamwesiga, learned advocates. The respondent enjoyed legal services of Messrs. Deodatus Nyoni and Stanley Kalokola, learned Principal State Attorney and State Attorney respectively who worked in tandem with Ms. Jacquiline Kapinga, learned advocate. As the lead counsel, Mr. Mgare adopted the written submissions earlier on filed by the applicant in conformity with rule 106(1) of the Rules. He also relied on the list of authorities presented in accordance with rule 34 (1) and (4) of the Rules. Mr. Mgare contended that, this Court erred by faulting the trial court's findings in accepting as exhibits documents that were annexed in the original plaint but omitted in the amended plaint. He clarified that, in the amended plaint, the applicant only made reference to the documents annexed in the original plaint but did not re-attach them. The learned counsel submitted that, the applicant's approach in so doing, was accepted as a modern style of pleadings which do not require parties to repeat each and every allegation or attach documents afresh as opposed to the traditional way of pleadings which requires parties to repeat factual allegations or re-append documents that were referred to in the original pleading. 5 The learned counsel for the applicant strongly faulted the impugned decision of the Court and asserted that, the trial court's decision was perfect as it rested in the four corners of the overriding objectives of the civil procedure which requires courts to deal with cases justly and at proportionate costs. Further, Mr. Mgare contended that, in rejecting annextures BLC1-4, this Court failed to consider that: the procedural remedy for failure to attach a document in a pleading is not to dismiss the claim but to grant leave for amendment to reflect a more definite statement; amendment is widely available for failure to incorporate; if a party does not object to an opponent's failure to attach a document, as the respondent did, it amounts to waiver of his right to objection, and lastly; no imperfection on pleadings may affect the substantive rights of the parties in absence of any prejudice to the opponent. Mr. Mgare also attacked the impugned decision on the ground that, the Court erred in holding that admissibility of evidence was the domain of the trial court. In his view, admissibility of an exhibit is a duo process involving the parties to the case and the court itself. He argued that, parties to the case play a great role in admission of an exhibit as they can support or challenge the prayer for admission, in which case, the court acts as an umpire. In further support for review, the applicant's counsel faulted the Court for failure to address itself on the provisions of section 27 of the Interpretation of Laws Act, Cap 1, R.E 2019 which provides that, where the original document is amended, the amended document shall so far as is consistent with the tenor thereof and unless the contrary intention appears, be construed as one with the amended document. To that end, he asserted that, it was wrong for this Court to hold that the amendment of the plaint could not be resuscitated by any averments in the amended plaint or by cross reference of the documents attached to the original plaint. The learned counsel invited this Court to reverse its decision by adopting the overriding objective principles in interpreting pleadings through a modern approach and thus apply Order VI rule 17 of the Civil Procedure Code, Cap 33, R.E 2019 (the CPC) in finding the trial court was justified in admitting annextures BLC 1 - 4 as exhibits, allegedly because, those documents were referred to in the amended plaint though not attached. Mr. Mgare submitted that, the Court's decision on annextures BLC 1 - 4 to the plaint was an error on the face of the record. To buttress his point, he contended that, it was wrong for this Court to re-evaluate the evidence on record and interfere with the High Court findings allegedly because there was no indication of the trial court's failure to take into account some material points or circumstances. As regards to annexture BLC-5 to the amended plaint, Mr. Mgare contended that, even assuming that the Court had jurisdiction to re­ evaluate the evidence on record, it failed to properly do so. He expounded that, in re-evaluating the applicant's claim, this Court failed to properly analyze and evaluate annexture BLC-5 which remained intact after annextures BLC1-4 were discarded on technicality. Mr. Mgare further contended that upon rejecting the sum proved under annexture BLC1-4, this Court ought to have awarded the applicant a sum of money claimed under annexture BLC-5 whose proof was allegedly not disputed. He submitted that this Court erred in concluding that the applicant's claims shown in documents marked annexture BLC-5 to the plaint couid not be distinguished from annextures BLC-4. In support of the contentions, the learned counsel for the applicant referred us to the cases of: West Run Student Housing Associates 8 LLC v. Huntington National Bank [2013] NO. 12-2430; Karan Singh v. Chaman Paswan [1954] SC 340; Ma Shwe Mya v. Maung Mo Huang AIR [1922] PC 249; AM Abdallah Rajabu v. Saada Abdallah Rajabu & Others [1994] T .LR 133; Bomu Mohamed v. Hamisi Amiri [2020] T .LR 245, and; Kassim Salum v. Republic [2020] T .LR 507. Responding, Mr. Deodatus Nyoni adopted the affidavit in reply and the respondent's written submissions jointly prepared by Stanley Kalokola, learned State Attorney and Dr. Alexander Thomas Nguluma, learned advocate, which were filed on 28th day of April, 2022. He also relied on the list of authorities lodged on 19th day of September, 2023 thereby submitting that, the grounds elucidated in the notice of motion were not grounds of review but rather, grounds of appeal. The learned Principal State Attorney contended that, his assertion was bolstered by the applicant's submissions and the issues proposed for determination. Underpinning his contention, he argued that the grounds of review faulted the Court on the alleged failure to evaluate certain pieces of evidence, hence a prayer for re-evaluation of the entire evidence at this stage. Mr. Nyoni submitted that, this application was brought as a second appeal under the pretext of review. He appraised this Court not to seat as an appellate Court against its own decision which is forbidden in law. He also referred us to the decisions in: The Attorney General v. Mwahezi Mohamed [as administrator of the estate of the late Dolly Maria Eustace] and Three Others, Civil Application No. 314/12 of 2020; Selemani Nassoro Mpeli v. Republic, Criminal Application No. 68/01/2020; SGS Societe Generate De Surveillance Sa & Two Others v. VIP Engineering & Marketing Limited & Another, Civil Appeal No. 124 of 2017 [all unreported]. He also cited the Kenyan case of National Bank of Kenya Limited v. Ndungu Njau [1997] KLR 24. The learned Principal State Attorney strongly submitted that, the procedure for review was not meant to correct erroneous decisions by rehearing the case after a decision is rendered by the Court. He found sound reasoning in the case of Selemani Nassoro Mpeli v. Republic [supra] wherein the Court held that no judgment can attain perfection but the most that courts aspire to do is substantial justice. He also cited the Attorney General v. Mwahezi Mohamed [supra] on the guide to determination of the applications for review, thus: it is not sufficient ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. 10 Addressing the Court on whether there is manifest error on the face of record resulting in miscarriage of justice, Mr. Nyoni asserted that, no such error was disclosed by the applicant throughout these proceedings as alleged or at all and instead, the applicant presented the grounds of appeal contrary to rule 66(1) of the Rules. He submitted that, admissibility of the evidence by the trial court was raised and determined by the Court while hearing the appeal, and therefore, as a matter of law and procedure, the same cannot be taken up for determination in an application for review. On whether the Court had jurisdiction to re-evaluate the evidence on record, the learned counsel for the respondent invited us to ignore the applicant's allegation on the ground that as the first appellate court, the Court was fully mandated to re-evaluate the evidence in accordance with rule 36(1) of the Rules and its decisions in Tanzania Cigarette Company Limited v. Mafia General Establishment, Civil Appeal No. 118 of 2017 and; the Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017 (both unreported). On whether the Court was justified in the impugned decision by allowing an appeal on the ground that it was wrong for the trial court to admit annextures BLC 1-4 which did not form part of the amended plaint, ii the learned Principal State Attorney submitted that, the applicants contention violated rule 66 of the Rules as it was a ground of appeal in disguise. On the question of amendment of pleadings which featured as a central point in the impugned decision, Mr, Nyoni contended that, the Court was right in deciding as it did for the reason that, once pleadings are amended the previous pleadings ceases to have legal force. In support thereof, he relied on the decision in Ashraf Akber Khan v. Ravji Govind Varsan, Civil Appeal No. 5 of 2017 wherein the Court indicated that, once pleadings are amended, that which stood before the amendment is no longer material before the court; and; Prof. T. L. Maliyamkono v. Wilhelm Sirivester Erio, Civil Appeal No. 93 of 2021 [both unreported] where we alluded that, once an order for amendment is made, the former pleadings cease to exist. In addition, Mr. Stanley Kalokola invited us to decline the applicant's invitation to find that the Court made an error apparent on the face of the record. He implored us to draw inspiration from the case of Selemani Nassoro Mpeli v. Republic [supra] wherein we took the view that, a court will not sit as a court of appeal from its own decisions, nor will it entertain applications for review on the ground that one of the parties in 12 the case conceived himself to be aggrieved by the decision. The learned State Attorney also urged us to be motivated by our decision in A.A.R Insurance (T) Limited v. Beatus Kisusi, Civil Appeal No. 67 of 2015 [unreported] in which we stated that, the function of admission of documentary exhibit is the domain of the trial court and not the parties to the proceedings. On the basis of those assertions, the learned counsel for the respondent submitted that, the application is farfetched and without merits. He contended that, the depositions by Tito Elias Kingu contained in the affidavit in reply are hearsay based on the information received from Francis Mgare who did not swear an affidavit to support them. He contended further that, the said omission was fatal, rendered the application incompetent and thus moved the Court to dismiss the application with costs. In rejoinder, Mr. Mgare countered that the application was not an appeal in disguise but rather, there is an apparent error on the face of the record. He argued that, the error was the Court's decision to address itself on the weaknesses of annnextures BLC 1-4 to the plaint while omitting to award the applicant the sum of money claimed under annexture BLC - 5 to the plaint which was neither disputed nor suffered any legal deficiency. 13 Further, Mr. Mgare reiterated his earlier submissions and implored the Court to adopt the modern approach of preparing pleadings as he earlier on contended. Finally, he moved us to grant the application as presented. We have considered the notice of motion, the affidavit in support thereof, the affidavit in reply and respective submissions of the parties. The applicant sought an order for review of the judgment of the Court in Civil Appeal No. 206 of 2017. The application is premised on section 4(4) of the AJA and rules 66 (1) (a), (c) and (d) of the Rules. Both parties have referred the Court to various decisions upon which the Court may grant an order for review of its decision. These principles, we believe, do not need belaboring. Section 4(4) of the AJA was introduced by the Written Laws (Miscellaneous Amendments) Act No. No. 3 of 2016 and provides that the Court of Appeal shall have the power to review its own decisions. The facility of review under rule 66 (1) of the Rules is available to a person who is aggrieved by the judgment or order of the Court where: the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; a party was wrongly deprived of an opportunity to be heard; the court's decision is a nullity; the court had no 14 jurisdiction to entertain the case; the judgment was procured illegally, or by fraud or perjury. The present application is premised on the ground that, the impugned decision was based on manifest error on the face of the record resulting in the miscarriage of justice. It should be noted that, there is a distinction between a mere error and an error apparent on the face of the record. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefinite inherent in its very nature, and it must be left to be determined judicially on the facts of each case. That notwithstanding, in Chandrakant Joshubhai Patel v. Republic [2004] T.L.R 218, the Court addressed itself on the meaning of the phrase "manifest error on the face o f the record", thus: "An error apparent on the face o f the record m ust be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a iong-drawn process o f reasoning on points on which there may conceivably be two opinions...A mere error ofiaw is not a ground for review under this rule. That a decision is erroneous in iaw is no ground for ordering review ...It can be said o f an error that is apparent on the 15 face o f the record when it is obvious and se lf - evident and does not require an elaborate argument to be established..." From the legal stance given above, an error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Neither can a view which is adopted by the Court in the original decision, whether right or wrong, be an error apparent on the face of the record even though another view is also possible. Elucidating that position, Chitaley and Rao in AIR Commentaries on The Code of Civil Procedure [4th Ed. Volume 3 at 3227], writes, that: mere error or wrong or an erroneous view o f evidence or o f law is certainly no ground for review although it may be a ground for appeal The learned author, Mulla on the Code of Civil Procedure [15th Ed. Volume III at 2725] restates the law that, an error on the face of the record should be obvious and capable of being seen by one who runs and reads, that is an obvious mistake and not something that can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. 16 In this case, the decision that the applicant seeks to review addressed fifteen grounds of appeal on which the High Court was faulted by Airtel. Ground number six related to the trial court's alleged error on admissibility of documentary exhibits that were received in evidence in contravention of the law. It was alleged that the said documents referred to as annexture BLC1-4 to the plaint, namely: purchase order, invoices, site checklist and printed copies of the emails were not part of the amended plaint and that the trial court abdicated its duty in ensuring the compliancy of the requisite conditions for admission of exhibits including the test of relevancy and suitability. In response thereof, learned counsel for OSE admitted that, the disputed documents were not part of the amended plaint but the trial court had discretion to admit them notwithstanding non - compliance of the law. It was asserted that on account of lack of objection by Airtel, the documents were properly admitted in evidence. Focusing on whether the disputed documents were properly admitted, the Court relied on rule 14 of Order VII of the CPC which requires documents relied on by the parties to be attached to the pleadings and other decided cases, to point out that, upon amendment of 17 the plaint the previous plaint ceased to have legal effect. Capping the issue at page 20 - 21 of the typed Judgment, the Court stated that: "...In the judgm ent found in Vol. 3 pages 638-655 o f the record o f appeal, the trial court relied on the tendered exhibits that is, invoices and purchase orders to find that the respondent claim s were proven. The tria l Judge found that the claim s in the invoices reflected the same amount quoted in the purchase orders adm itted into evidence which included those in BLC 1-4, which was, as stated above erroneous. We are o f the view that had the tria l judge carefully considered the law which governs the process where there is an amended piaint, she would not have arrived at the conclusion she did. In essence, relying on documents not attached to the plaint before her was a fatal anom aly." Tine above extract of the judgment was attacked by the appellant on the ground that, even assuming that the trial court incorrectly admitted and relied on annextures BLC 1-4, still the Court failed to consider the sum claimed by Ose under annexture BLC-5 which were annexed to the amended plaint. The question for consideration is therefore, whether the Court failed to consider annexture BLC-5 to the plaint. Upon perusal of the record, we could not be convinced by the applicant's counsel assertions. This is because at pages 19, 20, 22 and 23 18 of the typed Judgment, the Court pronounced itself fully on the disputed annexture BLC-5 and gave reasons as to why it did not allow the claim founded on the said exhibit. For the ease of reference, we reproduce the relevant extracts starting with page 20 of the impugned judgment, thus: "In the instant case, the record shows that the tria l court's decision that found that special claim s were proved, relied on documents found in annextures BLC1, BLC-2, BLC-3 and BLC4 apart from those supported by annexture BLC-5. In paragraphs 3, 5, 6, 7, 8, 10, 12, 14 and 18(a) o f the amended plaints, a ll the claim s are referred to jo in tly notwithstanding the fact that the invoices and purchase orders o f those supported by annexture BLC1-4 were not attached in the amended plaint..." At pages 22 to 23 of the typed judgment, the Court analysed details of the claim and observed that: "In the instant case, going through the record, undoubtedly, annextures BLC1-4 were for the purposes o fproving special damages claim s amounting to TZS. 1,506,190,715.99 and USD 117,119.98 as found in the original plaint. In the amended plaint, the claim ed amount for special damages was TZS. 1,920,998,371.79 and USD 143,484.74. As alluded in paragraph 5 o f the amended plaint the claim s relied upon by the respondent, purchase orders issued to appellant to 19 authorize execution o f the agreed works were collectively annexed BLC-1 and some in BLC-5 amount to TZS. 990,701,277.78. The said purchase orders are listed on page 98 o f the record. On the part o f supply o f m aterials and spare parts and installation o f machinery, copies o f purchase orders are found in BLC-2 and some in BLC-5 amounting to TZS. 137,661,805.48 and for supply o f fuel, purchase orders are found in annextures BLC-3 and partly in BLC-5 and amount to TZS. 792,635,288.53 a t page 99 and 100 o f the record. Other m aterials supplied including spare parts and installation o f machinery purchase orders were annexed as BLC-4 and some in BLC-5 with claim s o f USD 143,484.72 (page 100 o f the record)." Further at page 23 of the typed judgment, the Court grounded its stance, thus: "As it can be discerned a ll the claim s relied on exhibits P l- P12 which included documents annexed to original plaint and the amended plaint to prove claim s shown. Proof o f a ll the claim s was dependent on documents attached to the amended plaint means the claim s remained unproved. In essence, in relying on the im properly adm itted documents, a ll the claim s against the appellant were notproved and had the tria l judge considered this fact, she would have found the same. This is also reflected in the judgm ent o f the High Court where it is impossible to separate claim s found and 20 supported by annexture BLC-5 only, since the exhibits referred to by the trial judge and tendered to prove the claim s are those from BLC1-4 and BLC-5. Therefore, com plaint number 6 has m e rit" It is clear from the above extracts that, the Court properly exercised its jurisdiction under rule 36(1) of the Rules by re-appraising the evidence on record and drawing inferences of fact. In our view, the conclusion reached by the Court took on board the applicant's concerns on annexture BLC-5 and did not spare a thorough discussion of the said exhibit. It follows that, the applicant's argument cannot be sustained. We think, the line of reasoning advanced by the applicant is better suited to an appeal. The fundamental flaw in the applicant's argument is on its failure to appreciate that, reasons for appeal are not necessarily reasons for review. This Court has no power to preside over the appeal of its own decision. In short, the arguments given, are not good and sound grounds for review. In so far as this application is concerned, we find that, the applicant has not satisfied the requirements for grant of an order for review of the Court's Judgment under rule 66 (1) (a), (c) and (d) of the Rules. 21 Accordingly, the application is hereby dismissed with costs to the respondent. DATED at DAR ES SALAAM this 26th day of October, 2023. B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 31st day of October, 2023 in the presence of Mr. John Carol Chogoro holding brief for Mr. Francis Mgare, learned counsel for the applicant also Ms. Rosemary Maajar holding brief for Mr. Alex Thomas Nguluma learned counsel and Mr. Maroa Jones Wambura, learned State Attorney both appeared for the respondent, is hereby certified as a true copy of the original. S. J. KAINDA REGISTRAR COURT OF APPEAL 22