phillip tillya vs vedastina bwogi 2016 tzca 894 13 october 2016

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CORAM: MBAROUK, J.A., MASSATI, 3.A., And MUGASHA, J.A.l CIVIL APPEAL NO. 88 OF 2014 PHILLIP TILLYA ...............................................................APPELLANT

VERSUS VEDASTINA B W O G I....................................................RESPONDENT (Appeal from the judgment and decision of the High Court of Tanzania Land Division at Dar es Salaam) (Sambo, J.^ Dated the 8th day of December, 2012 In Land Appeal No. 82 of 2008

RULING OF THE COURT 13th September, 13th October, 2016 MASSATI, J.A.: This appeal originates from Kinondoni District Land and Housing Tribunal Land Application No. 51 of 2007 on a dispute over ownership of a piece of land known as Plot No. 82 Wazo Hill Industrial Area, where, where the respondent was declared the lawful owner. This was followed by an order to the appellant to demolish whatever structures he had erected on the disputed premises. Aggrieved, the appellant took his grievance to the High Court (Land Division) where it was featured as Land Appeal No. 82 of 2008. On 8th December, 2012, Sambo J, dismissed the appeal. Still aggrieved, the appellant has come to this Court on a second appeal, which was filed on 9th October, 2014. When the appeal came up for hearing, we first took up with Mr. Anthony Mark, learned counsel for the appellant, on certain deficiencies in the record of appeal which effectively crippled our ability to properly, effectually and completely determine the appeal. The major deficiency was that some documents which were put in evidence at the hearing, such as Exhibits P3, D1 and D2 were not contained in the record of appeal. This, we pointed out to him, went contrary to Rule 96(1) (f) and (k) of the Court of Appeal Rules 2009 (the Rules). Caught unaware^, Mr. Mark first admitted the deficiency, and its crippling effects, and after throwing in several

suggestions to remedy the situation, settled with a prayer for leave to file a supplementary record of appeal under Rule 96(6) of the Rules or extension of time to apply and obtain the said leave. Mr. Cleophas Manyangu, learned counsel for the respondent reacted by submitting that since the appellant had admitted that 2 the record of appeal was incomplete, he would not object to the prayer for extension of time in which to apply for such leave, but would insist on getting his pound of flesh, by way of costs for the adjournment. It cannot be gainsaid that the purpose of Rule 96(1) and (2) of the Rules, is to assist the Court in accessing to as complete a record of what transpired in the lower courts or tribunal as possible, for it to properly, effectually and completely determine the appeal before it. Unless expressly excluded by the Registrar of the High Court or a Justice, under Rule 96(3), the presumption is that every document listed under Rule 96(1) and (2) of the Rules is necessary and must be contained in the record of appeal where appropriate. It is against this background that, in a number of its decisions, this Court and its predecessor, East African Court of Appeal, have repeatedly held that a record of appeal which misses such essential documents is defective, and renders the appeal incompetent and liable to be struck out. (See KIBORO Vs POSTS AND TELECOMMUNICATION

CORPORATION (1974 E.A 156; SAID SALIM BAKHESSA AND CO. LTD Vs AGRO PROCESSING AND ALLIED PRODUCTS LTD AND ANOTHER, Civil Appeal No. 51 of 2011, EQBAL EBRAHIM Vs JOHN MASENGA Civil Appeal No. 5 of 2012 (both unreported). Ordinarily, we would have struck out the present appeal on account of incompetency. But the present case is unique in several ways. Firstly, no preliminary objection has been raised on this point by the respondent. Secondly upon the Court raising it, the appellant immediately (informally) applied for leave to file a supplementary record of appeal outside the 14 days he is allowed to do without leave under Rule 96(6) of the Rules. Thirdly under the Court of Appeal Rules 1979 (the old Rules) there was no provision in Rule 89 (now Rule 96), similar to Rule 96(6). Supplementary records could only be filed under Rule 92. Under rule 92(3) of the old Rules:- "■ an appellant m ay a t any tim e lodge in the appropriate reg istry four copies o f a supplem entary record o f a p p ea l " However, the phrase " supplem entary record "was restricted to copies of such "further o r additional docum ents o r parts thereof which are required fo r the proper determ ination o f the appeal". A supplementary record could not therefore have contained a "core document" so to speak, listed in Rule 89(1) of the Rules. (See ROBERT EDWARD HAWKINS AND ANOTHER Vs PATRICE P. MWAIGOMOLE Civil

Application No. 109 of 2007 (unreported) But Rule 96(6) of the current Rules, provides:- " where a docum ent referred to in rule 96(1) and (2) is om itted from the record o f appeal the appellant m ay w ithin 14 days o f lodging the record o f appeal w ithout leave, include the docum ent in the record" So, under the present Rules, which was not the case under the old Rules, an appellant may file a supplementary record of appeal containing any document referred to in Rule 96 (1) and (2) (that is to say, any core document) within 14 days after lodging the record o f appeal. In our view, the intention of this new rule is to enable a genuine and prudent appellant to make good an otherwise defective record of appeal. In a recent decision in THE GENERAL MANAGER KAHAMA MINING CORPORATION LIMITED Vs KHERI KADU Civil Application No 13 of 2015 (unreported), this Court held that under Rule 96(6) of the Rules, it was implicit that an appellant could apply for extension of time in which to file a supplementary record of appeal. But earlier on in JACKSON MABULA NJILE Vs CRDB BANK PLC AND BADUGU GINNING CO. LTD, Civil Appeal No. 21 of 2014 (unreported), the Court also appreciated that the appellant had such opportunity under Rule 96(6) of the Rules, and that if one felt that he could not do so within the time stipulated by the Rule, he ought to file a formal application for extension of

time in which to do so, instead of waiting until the date when the appeal is slated for hearing. We entirely subscribe to this view, but would add that if an appellant is minded to do so, he should do it before any preliminary objection is taken on the point. Unlike the JACKSON MABULA NJILE case (supra) which was strongly, resisted by the respondents, the present application for extension of time is not opposed. In the circumstances, we allow the application. Although Rule 96(6) of the Rules does not anticipate a formal application, we encourage and adopt this 6 wholesome practice recommended in the NJILE case (supra) and order that the appellant lodge a formal application for extension of time within 14 days from the date of this order in which to apply for leave to file a supplementary record. Costs should be in the cause, DATED at DAR ES SALAAM this h day of 'J j M.S. MBAROUK

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL