20130823 TZCA Dar es Salaam

IN THE COURT OF APPE.AL OF TANZANIA I AT DAR ES SALAAM I (CORAM: MASSATI, J.A., MANDIA ,J.A., And KAIJAGE,J.A.) CIVIL APPEAL No.I s1 OF 2011 ! SAID SALIM BAKHRESA I & CO. LTD ..............................................t.................................APPELLANT I VERSUS AGRO PROCCESSING AND ALLIED PRODUCTSLTD ................................................................. 1ST RESPONDENT REGISTRAR OF TRADE AND SERVICE MARKS .............................................................. 2ND RESPONDENT (Appeal from judgment and Decree lf the High Court of Tanzania (Commercial Division) at Dar es salaani,Luanda J. delivered by Madam) I . (Bukuku, l. ) Dated the 4 th day ~f April, 2011 in 1 Commercial Case No. 31 of 2004 I .................. I RULING OF THE COURT 13th & 30 th August, 2013 MASSATI, J.A: The appellant was aggrieved by the decision of the High Court, Commercial Division (Luanda J) dated 4th April,2011, and has filed an app/al in this Court to challenge it. Al in the trial court, the appellant is rep~esented in thi1 Court jointly by Dr. Paul Kihwelo, learned counsel - from ESCO LAW CHAMBERS, ADVOCATES, and Mr. Issa Maige, learned counsel from MJ.DIAMOND, ADVOCATES, both of Dar es salaam. That appeal was set for hearing on 13th August, 2013. But on 5th July, 2013, the first respondent who, as in the trial court continued to be represented in this Court by Dr. Masumbuko Lamwai learned counsel, filed a notice of preliminary objection to question the competency of the appeal. The main contention in the said preliminary objection was that the record of appeal was incompetent, in that some documents; namely:- (i) a ruling on the application for temporary injunction dated 10/9/2004 (ii) a ruling on the preliminary objection that was delivered on the 14/11/2002 (iii) an application which was struck out on 15/11/2010; and lastly (iv) an application for review were excluded from the record, without any directions to that effect under rule 96(3) and that therefore, this exclusion was contrary the ' Rule 96(1) of the Court of Appeal Rules, 2009 (the Rules). In support 2 _) of the objection, the learned counsel relied on the recent decisions of this Court in DODSAL HYDROCARBONS AND POWER TANZANIA LIMITED PVT AND TWO OTHERS vs HASMUKI BHAGWANJI MASRAN Civil Appeal No. 93 of 2012, and JALUMA GENERAL SUPPLIES LTD STANBIC BANK (T) LTD Civil Appeal No. 34 of 2010 (both unreported). He submitted that, from the wording of Rule 96(1), all those documents listed in sub rule 1 (a) to (k) were core and that if the other party did not think that some were relevant for the purposes of the appeal that party should have sought directions under Rule 96(3). On the authorities of the above decisions and in the absence of such directions, the exclusion is inexcusable and renders. the record of appeal, incomplete and incompetent, he said. On that account, he I urged us to strike out the appeal with costs. For the appellant, Mr. Ismail Maige learned counsel, had a different view. His view was that, first, Rule 96(3) only comes into play when one seeks to exclude core documents expressly referred to in the saving provision of Rule 96(1), namely those documents listed in paragraphs (d) (e) and (f). It did not apply to documents anticipated 3 I'I I in rule 96(1)(k). Secondly, a party is at liberty to exclude documents under paragraph (k) which he considJed unnecessary or irrelevant. To him, whether a document was necJssary or relevant is a question of fact which could be determined by lobking at the grounds of appeal. He went on to submit that, in this appeii, the missing documents were neither necessary nor relevant and thJrefore the omission was of no consequence. He said that, so long al the decisions cited and relied on by the appellaiit, related to the omi~sion of core documents, other than those listed in paragraph (k) ttse cases are distinguishable Finally, the learned counsel argued thlt should the Court uphold the l substance of the preliminary objection, 'it should go on to find that, the irregularity only made the record inbomplete which is curable by rectification of the record/and /or amJndment under Rule 111 of the Rules. Mr Maige also referred to us slveral decisions of this Court to I support his stance ; namely; THE PIRESIDENTIAL PARASTATAL SECTOR REFORM COMMISSION Vs THE IMPALA HOTEL LIMITED Civil Appeal No. 100 of 2003; FEDHA FUND LIMITED I AND OTHERS Vs GEORGE T. VARGHESE AND ANOTHER Civil I Appeal No. 8 of 2008, JOHN NAIMAN MUSHI Vs KOMBO RURAL COOPERATIVE SOCIETY LIMITED Civil Appeal No. 49 of 2006, 4 _) LEILA JALALUDIN HAJI JAMAL Vs J5HAFFIN JALALUDIN HAJI JAMAL, Civil Appeal No. 55 of 2003 (all unreported) FORTUNATUS I MASHA vs WILLIAM SHIJA AND ANOTHER (1999) TLR 41, and I I BUNDA OIL INDUSTRIES LIMITED V DUNIA WORDWIDE TRADING COMPANY Civil Appeal No. 31 of 2008 (unreported). On the strength of those authorities, the learned counsel urged us either to dismiss the preliminary objection with costs; or allow the respondent to amend or rectify the alleJed shortcomings. In his brief rejoinder, Dr. Lalwai submitted that, on the I authority of JALUMA and FEDHA FUND cases, it was not open for a party to choose which documents to elclude, without directions under I Rule 96(3) of the Rules. If counsel wished this Court to depart from these decisions, he would have given /otice under Rule 106(3) of the Rules. He went on to submit that theI cases cited by the appellant regarding rectification of the record, wJre no longer good law, because ' ) they were based on Rule 92(3) of the revoked 1979 Court of Appeal Rules; (old Rules) but there is no prLsion similar to Rule 92(3) of those Rules in the present Rules. Laily, it was his further view that since Rule 111 of the Rules, relates to lmendment of documents in the 5 .' record of appeal it cannot be stretched to include adding new documents in the record. He thus reiterated his prayer that the appeal be struck out on account of an incomplete record. We are of the settled view that Rule 96 plays a central role in the administration of civil appeals to this Court. It governs the preparation and contents of a record of appeal. Sequel to a notice of appeal, the next important document that has to be lodged in order to institute an appeal is the record of appeal, along with other documents; mentioned in Rule 90 of the Rules (See MANENO MENG! LTD AND OTHERS Vs NYAMACHUMBER AND ANOTHER (2004) IEA. 116 (CAT). This explains why Rule 96 ( 1) has received a strict interpretation by the Court. From the numerous decisions of this Court and other courts in East Africa of similar jurisdiction on that provision, there are two categories of documents for purposes of appeal. The first category is that of primary or core documents, which are all those listed in Rule 96(1) of the Rules in the case of first appeals, and, in addition those listed in rule 96(2) in the cases of second and third appeals. (See ROBERT EDWARD HAWKINS AND ANOTHER Vs PARTICE P. 6 J MWAIGOMOLE Civil Application No.I 109 of 2007; HARUNA MPANGAOS AND 902 OTHERS 'V TANZANIA PORTLAND I CEMENT CO LTD, Civil Appeal No. 10. of 2007 (both unreported and I KIBORO V POSTS AND , TELECOMMUNICATIONS I CORPORATION (1974) EA. 156. The,· second category is those such I other documents which a party may consider necessary for the ' purpose of determinding an appeal. These could be· brought in by I what is known as a supplementary recqrd. In the old Rules (Rule 92) either party, with leave of the Court could file supplementary record. Under the present Rule 99 of the Rules.~ only the respondent can file a : I I supplementary record. ; I ' I It has been held in KIBORO's <ase and religiously followed by I Court of Appeal in East Africa ever since, that, compliance with that I ' rule constitutes a condition precedent to the propriety of the record of appeal at lodgment. This has been taken to mean that the omission of I ; any part of a document in the primary category renders the appeal curably defective and therefore incompetent. (See FEDHA FUND LIMITED AND OTHERS V GEORGE T. VARGHESE AND ANOTHER (supra) JALUMA GENERAL SUPPLIES LTD v 7 STANBIC BANK (T.) LTD (supra). It has also been held in those decisions that it is not upon a party to decide which of the primary core documents are relevant, and that, if a party is in doubt as to what to exclude from a record, there is a ready answer in Rule 96 (3) of the Rules. Given the above exposition, the .issue in the present case is a narrow one. According to Mr. Maige, learned counsel, since those missing documents fall under the description in paragraph (k) of Rule 96 (1) of "such other documents, if any, as may be necessary for the proper determination of the appeal" and since they were nether relevant, nor necessary, the appellants could exclude them with impunity. The issue is whether the appellant was entitled to exclude those documents without directions under Rule 96 (3) of the Rules? We appreciate the ingenuity of the learned counsel's argument, but we are not prepared to buy it. In our view, looking at Rule 96, which should be read as a whole; it is plain that the whole of sub rule 1 (without exception) is subject only to sub rule 3. So, even the saving in sub rule 1 in respect of documents listed in paragraphs ( d) ( e) and (f) is equally subject to directions under sub rule 3; if only for 8 .' I the purposes of determining whether or not parts intended to be excluded are relevant. It is on that account that in the decision of the I Court of Appeal of Kenya of ABOK JAiES ODERA t/a A.J. ODERA AND ASSOCUASES V JOHN PATRICK MACHIRA t/a MACHIRA AND COMPANY, ADVOCASES Civil kppeal (application) no 161 of I 1999 (unreported) it was held that tre omission to include in the record of appeal documents mentioneb in rule 85{l){k) (which is in pari material to rule 96 (1) (k) of Lr Rules) renders the record defective. To that extent, we agre~ with the obse!rvation of our Kenyan counter parts much as we are ~ot bound by it. Secondly, in it has also been held and in our view corr~ctly so, that all ,the trial court's notes, documents and in our view interlocutory proceedings and documentary exhibits made and received before the decision appealed ! against are primary documents. csJe COMMERCIAL BANK OF I AFRICA LTD v NDIRANGU (2000) 11 EA .29) also a decision by the Court of Appeal of Kenya by which we lre persuaded. This is the case I with the first three documents (i) (ii) and (iii) listed· in the present preliminary objection. The applicatiJn for review (item (iv) in the I preliminary objection) could also bei relevant for the purposes of determining the appeal because it could affect the competency of the 9 I , ' ' present appeal. But the bottom line is that, whether or not the appellant considers them relevant or essential for the determination of the appeal they could best be considered before the Registrar or Justice of Appeal they under Rule 96 (3) of the Rules. There the decision could best be made upon full arguments from the parties. The rationale is that, now that since the said documents are not before this Court it is difficult for this Court, to decide whether or not they are relevant. Besides, it is only fair that both parties should be called upon to decide as to which document are necessary or relevant, because as it is clear in the present proceedings;· what may be irrelevant to one party, may be relevant to the other, and even to the 1 Court. It is for the above reasons that we decline Mr. Maige s ; invitation and proceed to hold and confirm that, all the documents listed in Rule 96(1)(a) to (k) are primary or core documents, and, unless expressly excluded under sub rule 3, they must be in the record of appeal, if there is to be a competent appeal. , Mr. Maige learned counsel has also urged us to find that, if the record of appeal is defective/incomplete it is rectifiable, and has asked us to give him leave to amend the record of appeal under Rule III of 10 the Rules. To win our hearts, he has referred to us, a number of our previous decisions. One such decision was the PRESIDENTAL PARASTATAL SECTOR REFORM COMMISSION. In that case the record of appeal was incomplete due to some missing pages. The Court held that such defect was rectifiable under Rule 92(3) of the old Rules. That rule governed the preparation an·d service of supplementary records. Under the current Rules, this is retained as Rule 99. Rule 92(3) of the old Rules, provided as follows:- 92(3) An appellant may at any time lodge in the appropriate registry four copies of a supplementary record of appeal and shall as soon as practicable after doing so, serve copies of it on every respondent who has complied with the requirements of Rule I 79" Much as it is now settled law, that this provision could not apply to what were termed core or primary documents in the record of appeal this provision is not in the new Rule 99 of the Rules. So, as Dr. Lamwai has submitted, it is no longer good law. The other decisions 11 .. . \ relied on by the appellant are not relevant in the circumstances of the present case, and are distinguishable. As to amendments, we agree that under Rule 111 of the Court of Appeal Rules, this Court has powers to allow amendment of any notice of appeal, or notice of cross appeal, memorandum of appeal, or any other part of the record of appeal. But once again we agree with Dr. Lamwai, learned counsel that, under that rule, amendment does not extend to adding documents. As he.Id by this Court in ROBERT EDWARD HAWKIN's case, amendment under Rule 104 of the old Rules (which is the similarly worded as Rule 111 of the Rules) presupposed the existence of a document or documents in the record of appeal sought to be amended, and that, one cannot amend what does not exist. So the appellant's application to amend the record of appeal by adding the missing documents is totally misconceived and untenable. We finally also agree with Dr. Lamwai that under the current Rules the only remedy available to an appellant who has not filed any document under Rule 96(1 and (2) of the Rules is to file such document(s) within 14 days of lodging the record of appeal without 12 leave or perhaps with leave of the Court btter applying for extension of I . time. This remedy was not available injl the old Rules. Unfortunately the appellant has failed to take advantabe of this remedy. He cannot j1 do so at this stage, due to lapse of ~ime and after an preliminary objection has been relied on that matter! I I! It is therefore our finding that ~he preliminary objection has merit. We accordingly uphold the sa~ e, and declare that the appeal 1 Ii is incompetent and proceed to strike it 9ut with costs. I I rd DATED at DAR ES SALAAM this i 23 day of August, 2013. I j1 s. A. MASSATI JUSTICE OF APPEAL Ii W. S. MANDIA I JUSTICE OF ~PPEAL ; 11 S.S. KAIJ4GE JUSTICE OF APPEAL I: 11 I certify that this is a true c~py of the original. 11' ~ Z.A.~~A DEPUTY REGISTRAR COURT OF AiPPEAL