20090924 TZCA Dar es Salaam

V • IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: NSEKELA. J.A., RUTAKANGWA. J.A. And OTHMAN, J.A.) CIVIL APPLICATION NO. 128 OF 2008 ROYAL INSURANCE TANZANIA LIMITED ...•••••.•••....•...•.••••.. APPLICANT VERSUS KIWENGWA STRAND HOTEL LIMITED ............................ RESPONDENT (Application for Amendment of the Record of Appeal in respect of Civil Appeal No. 96 of 2008 from the Judgment and Decree of the High Court of Tanzania {Commercial Division) at Dar es Salaam {Bwana, J.) Dated 25 th February, 2005 in (Commercial Case No. 68 of 2003) RULING OF THE COURT 9 & 24 SEPTEMBER, 2009 RUTAKANGWA, J.A.: By Notice of Motion under "Rules 104, 45, 46(1) and 3(2) (b) of Tanzania Court of Appeal Rules, 1979", henceforth the Rules, the applicant is moving the Court for an order that:- "The Record of appeal in Civil Appeal No. 96 of 2008 be amended by replacing the defective decree dated 1 st if ' __ ,,.,,'" ·f March, 2005 and issued on 7h March 2005 contained in Volume 2 of the Record of Appeal and appearing at pages 502 to 503 thereof with the proper Decree dated 2gh Februaf"½ 2005 and extracted and issued on the J;fh Februaf"½ 2008/ ... " [Emphasis is ours]. The respondent has strongly resisted this application. The parties were represented by· Prof. Jwani Mwaikusa and Dr. Ringo Tenga, learned advocates respectively. Before we canvass the grounds urged before us by counsel for both parties in favour and/or opposition of the granting of the order, we have found it helpful to give, briefly, the essential background to this application. The same is as follows: The respondent was the successful litigant in Commercial Case No. 68 of 2003 of the High Court (Commercial Division), at Dar es Salaam. The applicant was dissatisfied with the judgment of the High Court dated 25 th February, 2005. It duly issued a notice of appeal to this Court. Thereafter, it attempted to lodge an appeal in this Court, which was given serial number 45 of 2005. The competence of that appeal was challenged by the respondent as the record of appeal did not contain a valid copy of the decree appealed from in terms of Rule 89 (1) (h) of the Rules. The incorporated copy of the decree did· not bear the date of the judgment which was being 2 impugned as ls mandatorily required under Order XX Rule 7 of the Civil Procedure Code, Cap. 33 R.E. 2002, henceforth the C.P.C. When, on 22 nd February, 2008, the said Civil Appeal was called on for hearing the preliminary objection, Dr. Wilbert Kapinga, learned advocate for the appellant (now applicant), readily conceded the incompetence of the said appeal. The same was accordingly struck out forthwith. On 26 th February, 2008 the applicant applied before the High Court for extension of time to file a fresh notice of appeal. The High -- rd c Court granted the extension order on 23 July, 2008. The notice of appeal was lodged on 30th July, 2008. Thereafter, the applicant "instituted" Civil Appeal No. 96 of 2008 on 5th September, 2008. However, although by this date the applicant was in possession of a valid copy of the decree it was intending to appeal from, the record of appeal lodged contained the same old incurably defective copy of the decree which had indisputably rendered Civil Appeal No. 45 of 2005 incompetent. Upon discovering this fatal irregularity, the applicant filed this application. 3 • . In compliance with the requirements of the law, the notice of motion instituting this application is supported by a single affidavit sworn to by Dr. W. B. Kapinga. The most pertinent paragraphs of the affidavit, as we have found out, are paras . 15, 16 and 18. These read as follows:- "15 That the inclusion of the defective decree in the record of appeal was occasioned by inadvertence on my part; and that upon discovery of the error within hours of late Friday of gh September, 2008, the date the application was filed, I, acted promptly to rectify. the error by preparing thereon and filing an appropriate application on the next working day of the Court. 16. That the error was inadvertent can be gleaned from my effort in properly citing in item 13 of the index of the Record of Appeal in Civil Appeal No. 96 of 2008, the Court Decree given on 25h February 2008 and extracted on 12 February 2008. A copy of the said Index of the Record is annexed hereto marked Annexture WBK-7. 4 18. That the Applicant has seriously acted with utmost diligence regarding its appeal aforesaid and I stated that it will be fair and Just to grant the order sought in the Notice of Motion. " In support of the Notice of Motion, Prof. Mwaikusa made a spirited but understandably brief submission. He argued that on the basis of the undisputed facts (as encapsulated in the earlier given background) and the averments contained in the above reproduced paragraphs, this Court has powers to grant the order sought under Rules 104 and 18 (1) of the Rules. He took this firm position because the applicant acted to cure the defect in the record of appeal before any action was taken by the Court and/or the respondent in the pending appeal. He sought further support from the Interpretation of Laws Act, Cap 1 R.E. 2002, which in section 4 defines the word "amend" as:- ".... replace, substitute, in whole or in part, add to or vary, and the doing of any two or more of such things simultaneously or by the same written law. " 5 As already alluded to earlier, the respondent resisted this application. In the affidavit in reply to the Notice of Motion sworn to by one Aloys Bahebe, it is shown that the application is wanting in merit. It is averred therein that "there is No proper Appeal before the Court as the Record of Appeal bears a defective decree" and this application "cannot cure such a gross anomaly." This was, indeed, the nub of Dr. Ringo's short and focussed argument while pressing us to dismiss the application with costs. Dr. Ringo relied mainly on Rule 89 (1) of the Rules. It was the contention of Dr. Ringo that in an appeal from a decision of the High Court exercising originaJ jurisdiction, the record of appeal shall contain copies of all the primary or core documents enumerated in Rule 89 (1). One such document is a copy of the decree or order (r.89 (1) (h)). If such document is missing, the record of appeal is incurably defective and the appeal is incompetent, he stressed. It was his further contention that since an appeal should be instituted within 60 days of the lodging of the notice of appeal_, an amending order, as the one sought in these proceedings, 6 made after the expiry of that period of limitation, cannot save such an incompetent appeal, without an order for extension of time under Rule 8 of the Rules to file either the copy of decree or a record of appeal out of time. To buttress his argument he referred us to this Court's decision in HARUNA MPANGAOS AND 902 OTHERS vs TANZANIA PORTLAND CEMENT CO. LTD, Civil Appeal No. 10 of 2007 (unreported). We shall start our discussion with these apt observations. We have seriously and objectively considered the affidavital evidence of Dr. Kapinga and the submission by Prof. Mwaikusa. We do not doubt their forthrightness. Furthermore, the evidence and submission demonstrate the plight and the helplessness of the applicant to the extent of evoking sympathy even from the most dispassionate mind. We have no inhibitions in saying that the applicant is a hapless victim of its own counsel's "inadvertence"as claimed before us. But that is the best we can say in recognition of Prof. Mwaikusa's gallant efforts. We are further constrained to observe that our mandate to dispense justice emanates from the Constitution of the United Republic of 7 Tanzania of 1977. Under Articles 107 A and 107 B we are strictly enjoined to dispense justice only in accordance with the provisions of the Constitution and the laws of the land. Any argument or plea in a judicial proceeding, however, powerful or moving, must of necessity be jettisoned to the winds if it lacks legal backing. With all these considerations in mind, if we are to find that we have powers to grant the order being sought, we will not hesitate to exercise our judicial discretion in the favour of the applicant. But are we vested with such jurisdiction? A conclusive answer to the above posed question, in our view, can only be obtained from the Rules and case law. We shall, then, begin our travail for the answer to this germane question and others which will arise in the process, with a perusal of the governing Rules. As already shown, the notice of motion is based on Rule 104 of the Rules. This Rule provides as follows:- "104 - The Court may at any time allow amendment of any notice of appeal or notice of cross-appeal or memorandum of appea~ as the case may be, or any 8 other part of the record of appeal, on such terms as it thinks fir~ We understand that to be properly constituted, a record of appeal in respect of an appeal from the High Court in its original jurisdiction, must contain copies of all those documents enumerated in Rule 89 (1). Such documents include the copy of the "decree or order"appealed from: see, item (h). Once leave to amend has been granted, the amendment (s) ought to be carried in accordance with the requirements of Rule 18, which rule was emphatically relied upon by Prof. Mwaikusa in his submission. This Rule reads thus:- "18. - {l} Where any person obtains leave to amend any document, the document itself may be amended, or if it is convenient, an amended version of the document may be lodged. (2) Where any person lodges an amended version of a document, he shall show clearly- ( a) any words or figures deleted from the original, by including those words or figures 9 and striking them through with red ink, so that what was written remains legible; (b) any words or figures added to the original, by writing them in red ink or underlining them in red ink. (3) ... not relevant. So, it is legally permissible to amend any document forming part of a proper record of appeal, including a decree. We think this is what the applicant is seeking here. However, we should hasten to add that a decree, drawn and issued in accordance with the provisions of Order XX, Rule 7 of the C.P.C., can only be amended by the trial High Court under the circumstances shown in section 96 of the C.P.C. We have carefully read both Rules 18 and 104. What has emerged from our study of the same is the conclusion that the amendment or amendments envisaged under these Rules is or are in respect of only those valid documents which are already part of the record of appeal. In other words, no order can be given under these Rules to amend a document which does not form part of the record of appeal. 10 Prof. Mwaikusa strenuously argued before us that if leave to amend "the record of appeal" were granted they will have recourse to Rule 18 (1) and substitute a valid copy of the valid decree appealed from for the defective one. Admittedly, the ·copy of the High Court decree purportedly appealed from and incorporated in the record of appeal in Civil Appeal No. 96 of 2008, does not comply with the mandatory requirements of O.XX, and Rule 7 of the C.P.C. It does not bear the date of the day when the judgment was delivered. It is incurably defective: see, for instance, ABDALLA RASHID ABDALLAH V. SULUBU KIDOGO AMOUR & SAID ISSA SAID, Civil Appeal No. 94 of 2006, JOVIN MUTAGWABA & 85 OTHERS V GEITA GOLD MINING LTD, Civil Appeal NO. 109 of 2005, HARUNA MPANGAOS & 902 OTHERS V. TANZANIA PORTLAND CEMENT CO. LTD; Civil Appeal No. 10 of 2007, KAPINGA & COMPANY, ADVOCATE V. N.B.C. LTD, Civil Appeal No. 42 of 2007 and ZANZIBAR INSURANCE CORPORATION VS PAUL M. CHACHA, Civil Appeal 11 No. 83 of 2006 (all unreported), among innumerable others. Fortunately, Prof. Mwaikusa does not contest this settled legal position. What, then, are the legal consequences of incorporating an invalid decree in a record of appeal?· Is this a mere technical irregularity which can be conveniently disregarded or easily cured or is it fatal to the appeal? The case of .NGONI -MATENGO CO-OPERATIVE MARKETING UNION LTD V. ALIMOHAMED OSMAN [1959] E.A. 577, is one of the earliest reported cases on the issue. The Court of Appeal for Eastern Africa, held that under the laws of Tanganyika an appeal is incompetent, unless it is accompanied by an extract of a copy of the decree appealed against. It unequivocally stated:- "... failure to extract and lodge with the memorandum of appeal tv this court a copy of the relevant formal order or decree is not a mere procedural defect, but goes to jurisdiction and renders the appeal incompetent, unless the municipal law gives a right of appeal notwithstanding that such order or decree has not been drawn up, as it does in Kenya in the case of decrees ... , but as it does not in Tanganyika ... " 12 The Court then went on to hold that when an appeal is not properly constituted, the court ought strictly to strike it out. The position in Tanzania did not change with the advent of the C.P.C. and/or this Court. The law in Kenya was subsequently changed to be identical with ours. Unlike criminal appeals to this Court which, under Rule 61(1) of the Rules, are instituted with the lodging of a notice of appeal, a civil appeal to this Court is only duly instituted under Rule 83 (1). This sub-rule directs, in mandatory terms, inter alia, that: "... an appeal shall be instituted by lodging in the appropriate registry within sixty days of the date when the notice of appeal, was lodged- - (a) a memorandum of appeal, in quintup/icate; (b) the record of appeal, in quintuplicate; (c) the prescribed fee/ and (d). security for the costs of the appeal, ... "[Emphasis is ours]. As already shown herein, the record of appeal contemplated by Rule 83 (1) (a), must contain a copy of the valid "decree or order'~ 13 the subject of the appeal. We should hasten to point out here that the same situation obtains in Kenya and Uganda. It goes without saying, therefore, that the requirement to incorporate a copy of the decree or order appealed from is not a legal norm developed by judges who desire simplification. On the contrary, it is a compulsory legislative requirement, which we are strictly enjoined by the Constitution to give effect to. We are aware of a plethora of cases by this Court, reported and .unreported, which haye followed_ the path of NGONI-MATENGO V. OSMAN (supra). It is enough to cite a passage from the judgment of this Court in FORTUN.ATUS MASHA V. WILLIAM SHIJA & ANOTHER [1997] TLR 41. The Court thus succinctly held:- "... However, we are of the view that where by reason of non-extraction of the decree or order, as in this case, the appeal is rendered incompetent, the issue of insufficiency or incompleteness does not arise. The position that arises is simply one of non- existence of th.e appeal. Because insufficiency or incompleteness connotes something which is in existence and which can be improved upon, say by adding lo it. /ln incompetent appeal is one which in 14 law did not come into existence although efforts were made to bring it into existence... There was only a purported appeal if you wish. .. " fEmphasis is ours.] Drawing inspiration from the case of MASHA V. SHIJA (supra), the Court in the case of ABDALLA RASHID ABDALLA V. SULUBU KIDOGO AMOUR & SAID ISSA SAID (supra), emphatically held:- "... there is no difference between extracting an invalid decree, as was the case in the present appeal and failure to extract a valid decree. In all such cases the appeal is incompetent and is struck out. " We again associate ourselves fully with this stand, as we understand and appreciate that this position has been consistently taken by the Court all along. We have maintained this stand because it is the only one which is consonant with the provisions of the prevailing law. We are, indeed, not alone on this. Rule 85 (1) of the Kenya Court of Appeal Rules is identical with our Rule 89(1). In the case of R. V. KENYA POSTS AND TELECOMMUNICATIONS (1999) 1 E.A. 250, a copy of the 15 impugned order incorporated in the record of appeal had not complied with the requirements of order XX, Rule 6(1) of the Kenya Civil Procedure Act, Cap 21, which is identical with Order O.XX, Rule 6 (1). Deciding on the competence of the appeal, the Kenya Court of Appeal, held that an order or decree "is a primary document in the appeal and which must comply with certain requirements" of the Civil Procedure Act. It went on to hold unequivocally, at page 252, thus:- "This admitted mistake in the order ... is not a minor clerical error or one thaC as suggested by leading counsel for the Appellant , could be cured by this court under sections 100 of the Civil Procedure Act or section 3(2) of the Appellate Jurisdiction Act (Chapter 9). This defect is a serious and fundamental one in a primary document like the order, which certified or otherwise, or accidental or otherwise, deprives the order of any validity for the purposes of the present appeal as an order which is mandatorily required by rule 85(1} {h} of our Rules to be included in the record of appeal. This alone makes the present appeal incurably incompetent and should be struck out... 16 ( ' ... Our decision in the present appeal, might have been different if we were not dealing with an issue of jurisdiction, but with merely one that involved a deviation from form ... " [Emphasis ours]. This position was re-affirmed with greater emphasis by this Court in the case of AMI {TANZANIA} LIMITED V. OTTU ON BEHALF OF P.L. ASSENGA & 1.06 OTHERS, Civil Appeal No. 76 of 2002 (unreported). We said:- "The complaint herein is that the appeal is incompetent because of a defective decree in the manner explained earlier on in this ruling. Article 107 A (2) (e) of the Constitution does not in anyway command that procedural rules should be done away with in order to advance substantial Justice. Each case will be considered on its own peculiar facts and circumstances (See: Civil Application No. 100 of 2004, Zuberi Mussa V. Shinyanga Town Council (unreported); Civil Reference No. 22 of 2005, China Henan International Cooperation Group V. Salvand K.A. Rwegasira (unreported). A decree is a vital document in an appeal in terms of Rule 89 (2) (2) (v) of the Court Rules, for without a decree there is no appeal. Such non compliance is fundamental and goes to the root of the matter 17 and in our humble view, Article 107 A {2} {e} cannot resurrect a non -existent appeal". This holding was followed by the Court in the case of THE ATTORNEY GENERAL V. REV. CHRISTOPHER MTIKILA, Civil Appeal No. 20 of 2007 (unreported). So, in view of this glaring sea of authorities, it is our opinion that it is settled law that there can never be a Civil appeal instituted under Rule 83(1) of the Rules if the record of appeal does not contain a copy of the valid decree appealed from .. The law is now so entrenched in our jurisprudence that it can, again in our humble view, be altered by legislative amendment of the Rules. We are very much alive to the fact that in Uganda such amendments have been made in Rules 90 and 86 of their Court of Appeal and Supreme Court Rules respectively. These are in pari materia with our Rule 92. A new sub-rule (4) has been added to each one of them. It reads this:- 18 "(4) A supplementary record may be lodged to cure defects in the original record of appeal due to want of compliance with Rule 87 of the Rules. " As similar provision can be added to our Rule 92 but with a slight improvement. There must be a time limit within which to file such a supplementary record, in our opinion. In the light of the foregoing discussion, it will be accepted without any further elaboration that, the record of appeal of Civil Appeal No. 96 of 2008, the subject of this application, does not contain a copy of the decree the applicant wishes to appeal against. This legal situation is not disputed. As that appeal is not before us, we are enjoined to refrain from commenting on its legal status. But we are sure the applicant is mindful of what happened to Civil Appeal No 45 of 2005. All the same, we are being urged to grant an order under the Rules to amend the decree, to be appealed from, in terms of Rule 18 (1). In view of the clear stance of the law and the clear peculiar undisputed facts of this case, is this legally possible? Our considered answer which accords with logic, common sense as well as the prevailing 19 laws of the land is in the negative. We have two substantial reasons in support of this stance. First of all, it is our considered opinion that the applicant is not genuinely seeking the amendment of any document incorporated in the record of appeal of Civil Appeal No. 96 of 2008. We are saying so advisedly because it is mindful of the reason behind the striking out of Civil Appeal No. 45 of 2005, with its consent. The applicant should be conscious of the fact that the document it is seeking to amend by way of substitution is not in this-record of appeal. This application is a disguised way of seeking to introduce a new but vital or core document into the record of appeal which has never been in that record of appeal, since the said appeal was "instituted" on 5th September, 2008. In the case of ROBERT E. HAWKINS AND ANOTHER V. PATRICE P. MWAIGOMOLE, Civil Application No. 109 of 2007 (unreported), the applicants were seeking an identical order and for 20 identical reasons. In a ruling dated 26th February, 2008, a single Judge of the Court held, inter alia, thus:- "The amendments contemplated under rules 18 (1), 47 and 104 of the Rules presuppose the existence of a document or documents sought to be amended ... From these categories of amendments, it is crystal clear that one cannot amend what does not exist. It goes without saying, therefore, that since the applicant is seeking leave to amend a decree which is not part of the record of appeal, that is, which does not exist, the application is totally misconceived and legally unmaintainable..... " We wholly subscribe to this holding. Secondly, there is the issue of limitation whose significance Prof. Mwaikusa downplayed. While admitting that leave to amend if granted would not operate retrospectively, he went on to assert with 21 confidence that once leave to amend was granted, the issue of limitation would not arise. We, respectfully, disagree with him. As already sufficiently demonstrated, all appeals under Rule 83 (1) "shall be instituted by lodging .... within sixty days of the date when the notice of appeal was lodged", a memorandum of appeal and a record of appeal, among other things. A copy of the decree appealed from, as already shown, is one of the core documents to be included in the record of appeal at the time of lodging it. If that is not done, the purported appeal will be rendered incompetent. If _the, applicant were to press us for authority, we would quickly refer it to Civil Appeal No. 45 of 2005 between itself and KIWENGA STRAND HOTEL LTD. If that, then, be the letter and spirit of the law, can such a core document be lodged anytime thereafter, particularly after the expiry of the stipulated sixty- day period? We think that the answer to this question was provided by the Court of Appeal for East Africa in the case of KIBORO V. POSTS & TELECOMMUNICATION [1974] E.A. 155. 22 The conceded facts in the above cited case were that the appellant had filed a record of appeal which did not contain a certified copy of the decree as was mandatorily required under Rule 85 (1) of the Court's Rules. The Court unanimously found the appeal to be incompetent and struck it out. In its seminal ruling, the Court lucidly said:- "... If a basic document, like a copy of the decree, is omitted from the original record of appeal, that cannot be introduced into the record ·- of appeal, when the prescribed time has expired. In this case the appellant could only file the omitted decree out of time with leave .... under rule (4) of the Rules." (Emphasis is ours.) Our current Rules are a replica of the defunct Court of Appeal for East Africa Rules 1972, save for the numbering. Rules 8, 89 and 92 of the Rules are wholly identical with Rules 4, 85 and 89 of those 1972 Rules. This Court in the cases R.E. HAWKINS v. P.P. MWAIGOMOLE, HARUNA MPANGAOS vs. T.P.C. CO. LTD, KAPINGA v. N.B.C. LTD (all supra), among many others decided 23 • .. .:,r..:- ·• 4 J'";/.! . , .;, . ,., • thereafter, has unreservedly adopted the above quoted holding in the KIBORO case (supra), and it is therefore part of our law. In MPANGAOS' case the Court unequivocally ruled that "[IJf time had expired the appellants ought to have resort to Rule 8 for extension of time... " All said and done, we can now confidently assert that the law governing applications of this nature is well settled. The applicant can only file the omitted core document, i.e. the copy of decree, it is wishing to appeal from, not under Rules 104 and 18 and/or Rule 92 (by filing a supplementary record of appeal) but with leave of the Court under Rule 8 as correctly argued by Dr. Tenga. This is because the sixty- day limitation period has long expired. In fine, we hold that this application lacks merit as it has no legal leg to stand on. We can now safely answer our original question saying that we have no powers to grant the orders sought. The application is accordingly rejected with costs. Indeed this.is what the Court did in a similar application in TANINGRA CONTRACTORS v. 24 DATED at DAR ES SALAAM this ................. day of ........ ;. 2009. _. H.R. NSEKELA JUSTICE OF APPEAL E.K.M. RUTAKANGWA JUSTICE OF APPEAL M.C. OTHMAN JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL . 24 -~ i; .' i \- r1 1 I i: I' I /' ·, ,l I I_ I