civil appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA CIVIL APPEAL NO. 16213 OF 2024 SINOHYDRO CORPORATION LIMITED APPELLANT VERSUS OBAL SERVICES COMPANY LIMITED RESPONDENT ((Appeal from the judgment of the District Court of Kibondo at Kibondo) (M. M. Makonya, SRM) Dated 18th day of June 2024 In (Civil Case No. 4 of 2022) RULING Date: 17 & 17/10/2024 NKWABI, J.: In its judgment, the trial Court ordered the appellant to pay the respondent T.shs 246,983,763.75 as VAT refund stipulated in the sub- contract, which was under clause 3 of the sub-contract between the parties, general damages at T.shs 30,000,000/= among other reliefs. The appellant lodged this appeal to get redress of her grievances about the judgment. Against this appeal, the counsel for the respondent has lodged a notice of preliminary objection on point of law that: 1 The appeal is bad in law for contravening Order XXXIX Rule 1 of the Civil Procedure Codec, Cap. 33 R.£ 2022 on failure to accompany a copy of the decree appealed from. In bringing this preliminary objection, it appears to me that the counsel for the respondent was heavily relying on MIC Tanzania Ltd v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103/2004, (CAT), where it was underscored that: The nothingness of incompetent proceedings was underscored by this Court in the case LEONSI SILA YO NGALAI V HON. JUSTINE ALFRED SALAKAMA AND THE ATTORNEY GENERAL/ CIVIL APPEAL NO 38 OF 1996 (unreported) This court said: . .. The second aspect is whether this Court may adjourn an appeal which is tncompetent; in order to allow the appellant to take necessary steps to cure the incompetency. This court has said it before that an incompetent appeal amounts to no appeal. It follows therefore that the court cannot adjourn what it does not 2 have. Under such circumstances, what the court does is to strike the purported appeal off the register (emphasis is ours). So as there was no application before the High Court, according to the ruling of the learned judge, it was an exercise in futility to purport to determine it on the merits. No valid and enforceable orders could be made in application which was not before the High Court I am also inclined to think that the counsel for the respondent was ardent that his preliminary objection is backed by a number of authorities which shield him against the overriding objective principle one of them being Puma Energy Tanzania Ltd v. Ruby Roadways (T) Ltd, Civil Appeal No. 3 of 2018, CAT (unreported) where it was opined authoritatively that: "... Overriding objective is not meant to overhaul the rules of procedure but facilitate their application . . . The overriding objective is not a panacea for all ills and in every situation. A foundation of its application must be properly laid and the benefits of its application judicially ascertained. H 3 In VIP Engineering & Marketing Ltd v. Said Salim Bakhressa Ltd, Civil Application No. 47 of 1996 CAT (unreported) where it was stated that: "There can be no rational dispute over the fact that, procedural rules are enacted to be complied with. Usually there is legal principle behind evety procedural rule. But those rules differ in importance. Some are vital and go to the root of the matter/ those cannot be broken. Others are not of that character/ and can therefore be overlooked provided that there is a substantial compliance with the rules as a whole and provided no prejudice is occasioned. // One may also wish to see the case of Martin D. Kumalija & 117 others v. Iron and Steel Ltd," Civil Application No. 70/18 of 2018, CAT (unreported). The Court of Appeal held that: ·~-- while this principle is vehicle for attainment of substantive justice, it will not help a party circumvent the mendetory rules of the court We are loath to accept Mr. Sekas prayer because doing so would bless the 4 respondents inaction and render superfluous the rules of the Court that the respondent thrashed so brazenly. /F Further, in Njake Enterprises Limited v. Blue Rock Limited & Another, Civil Appeal No. 69/2017 CAT (unreported) it was stated: "The certificate of delay was based on a non-existent letter thus rendering it defective. Also/ the overriding objective principle cannot be applied blindly on mandatory provisions of the procedural law which goes to the very foundation of the case. /F Nevertheless, the preliminary objection was heard by way of oral submissions. The appellant was represented by Mr. Michael Mwangati, learned advocate who was assisted by Mr. Frank Deus Masessa, learned advocate. The respondent is duly represented by Mr. Erick Mutta, also learned advocate. I am indebted for their insightful arguments. In submission in chief in support of the preliminary objection, Mr. Mutta pointed out that the preliminary objection is under Order XXXIX Rule 1 of the Civil Procedure Code, Cap. 33 R. E. 2022. He contended that the appellant did not accompany a copy of a decree in which is appealed from. He stressed that the violated procedure is a mandatory 5 requirement of the law. Failure to do so the appeal becomes, incompetent, stressed Mr. Mutta and added that any incompetence ousters the jurisdiction of this Court. He cited Onala H. Services Limited v. Simba Oil Company Limited, Civil Appeal No. 182 of 2023, HC. where this Court insisted that this defect cannot be cured by an overriding objective. Mr. Mutta also maintained that the Court has not dispensed with the attachment of the decree which ought to have been done before filing the appeal. He prayed the appeal be struck out for being incompetent with costs. The counsel for the appellant were undeterred. They launched their reply submission whereby Mr. Masessa was the first to make his views against the preliminary objection known to the Court. He accepted that the provision violated is mandatory, however, he stressed that absence of the copy of the decree in an appeal before this Court does not affect the merits or outcome of the appeal which is filed before this Court. He further stated that even if the appeal, proceeds, the respondent would not be affected, but the appellant would be affected if the appeal is struck out. He pressed that this Court has adhered overriding objective 6 and is empowered to facilitate just, expeditions and affordable resolution of disputes under the CPC. He stated that they are of the view that the claim that incompetent appeal outs jurisdiction, is without merit, because the Court is empowered to make such order as may be necessary for the ends of justice. He referred me to the case of Commissioner General of Tanzania Revenue Authority v. JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeal No. 78 of 2018 and No. 79 of 2019, CAT, where there was want of written submissions, it was held that at page 11 of the ruling that: "... we think that this is a case where the Court should have due regard to the need to achieve substantive justice in line with Rule 2 of the Rules as it is our well- considered view that the shortcomings we have pointed out should not lead to the drastic action of invalidating the entire record of appeal. . . . we grant leave to the appellant to lodge the omitted copies of written submissions under rule 96 (6) within twenty-one days from the date of this ruling.'' 7 .. Mr. Masessa went on to submit that although the CPC has no provision for allowing the filing of the omitted decree for interest of justice, the Court may do so under s. 95 of the CPC. and section 3 A of the CPC. He added that the CPC does not demand absolute perfection in filing an appeal. Procedural technicalities should not bar this Court from substantive justice. He parroted the case of Gaspar Peter v. Mtwara Uran Water Supply Authority (MTUWASA), Civil Appeal No. 35 of 2017 at page 13 of the judgment. He finally submitted that the record of appeal is not 100% perfect cannot be regarded to be incompetent for want of the copy of the decree to be attached to the memorandum of appeal. Mr. Mwangati reinforced the stance of his learned brother making it clear that the counsel for the respondent did not show how the right of his client would be prejudiced, but their client would suffer irreparable loss which she is suffering up to now. He stressed that this Court has power to grant the appellant leave to file the copy of the decree that is missing. In rejoinder submission, Mr. Mutta argued that leave to file the decree cannot obtain at this stage, that ought to have been complied with at the time of lodging the appeal. We are not in dispute that the appeal is 8 incompetent. They are seeking refuge on overriding objective. The supplied decisions of the Court of Appeal are distinguishable to the present case, because those cases were in respect of missing records which did not go to the root of the appeal itself. He further said that section 95 of the CPC and section 3A of the CPC, do not cure the defect of the incompetent appeal. About the security order, that has nothing to do at this stage, underlined Mr. Mutta. I have painstakingly considered the arguments of the counsel for both parties. I also hold a stance as maintained by this Court in Onala's case (supra) that the violation of the rule is grave to the extent that it makes the appeal incompetent. In a recent decision, the Court of Appeal insisted on the importance of the party who intends to appeal, to obtain the necessary documents and attaching the same to the record of appeal, implying that they were necessary for the lodgment of an appeal. That decision is no other than the decision in Mohamed Salimini v. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2019 CAT (unreported) where it was underscored that: ''Suffice to state, having in mind the duty to ensure there is a decree and Judgment attached to the record of appeal as stated in section 19(2) of the LLA falls on 9 the appellant, there is also a duty to apply for a decree within the time prescribed for appeal. In the present case/ after the trial court decree was struck out by the Court, the duty to procure a correct and proper decree was upon the appellant, and this duty was expected to be exercised within reasonable time while mindful of the time prescribed for lodging and appeal before the High Court ... is ninety (90) days. Section 19(2) of the Law of Limitation Act, Cap. 89 R.E 2019 does not remove the duty of the aggrieved party wishing to appeal within 90 days as specified under paragraph 1 part 11 of the schedule to the Law of Limitation Act ... under the orcumstsnces, section 19(2) of the Law of Limitation Act would not any way have protected the applicant to the appeal. ... the 90 days prescribed by the law were still undisturbed when in pursuance of a proper decree/ as alluded to earlier in this Judgment, the duty to seek for a decree on time was on the appellant who was to benefit 10 from ttus; and this duty was not absolved by reason that the decree which he was provided with was later found to be defective. " Ultimately, I entirely endorse the arguments of the counsel for the respondent while I rebuff the submissions of the counsel for the appellant in total because they are not relevant to the situation at hand, I rule that this appeal is incompetent for violating the mandatory provision of Order XXXIX Rule 1. The provisions of section 95 of the CPC and section 3A of the CPC, do not cure the defect of the incompetent appeal. I strike out the appeal with costs. It is so ordered. DATED at KIGOMA this lih day of October, 2024 ~, J. F. NKWABI JUDGE 11