tanzania potland cement public company limited versus christopher eliud chambo 3 others 2023 tzhc 21835 9 october 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 85 OF 2023 TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY…………………………….…………………. APPELLANT VERSUS CHRISTOPHER ELIUD CHAMBO…………...................................1st RESPONDENT CHRISTOPHER ELIUD CHAMBO (Suing as a next friend of Eliud Christopher Chambo, minor) ………………………..……………….2nd RESPONDENT FRED GERALD ROMAN…………………………………….…………...3rd RESPONDENT NAKI ELIAHU LOBORA………………...…………….…………………4th RESPONDENT RULING Date of Last Order: 26/09/2023. Date of Ruling: 09/10/2023. E.E. KAKOLAKI, J. This ruling seeks to address the issue as to whether an omission to cite in the memorandum of appeal all parties featured in the lower court record is fatal and renders the appeal incompetent. Briefly the appellant herein filed an appeal against the respondents above mentioned challenging the 1 judgment and decree issued on 28/02/2023 by the Resident Magistrates Court of Dar es salaam at Kisutu, in Civil Case No. 141 of 2020 in favour of the four respondents who were plaintiffs thereat together with one Yusuph Felemon Magaya, not a party to this appeal. The appeal is vehemently resisted by the respondents who filed a notice of preliminary objection raising two points of law thus: 1. That, the appeal is bad in law and unmaintainable for being filed by altering the trial court proceedings contrary to the law. 2. The memorandum of appeal is defective and incompetent for failure to cite and name all the parties who featured and appeared in the previous proceedings. In view of the above raised points of objection this Court is invited by the respondents to strike out the appeal with costs. The Appellant is represented by Mr. Rwekamwa Rweikiza, Advocate while the Respondents enjoying the service of Mr. Richard Mathias and Mr. Peter Bana, both learned Advocates. As it is a practice of the Court to dispose of first preliminary objection on points of law when raised, parties were heard by way of written submissions which were filed in compliance with scheduled orders. 2 In their submission in chief in support of the raised preliminary points of objection the respondents craved leave of this Court to consolidate both grounds and argue them together. They argued that, the appeal is unmaintainable in law for filing the memorandum of appeal that altered the trial court proceedings, contrary to the law. According to the respondents’ counsel the appellant failed to cite and name all the parties who featured and appeared in the previous proceedings as the 5th defendant in the trial court was omitted without any court order for such amendment, something which renders the appeal incompetent. To fortify their submission the learned legal minds invited this Court to be guided with the position adopted by the Court of Appeal when faced with akin situation in the cases of Isaack Wilfred Kasanga Vs. Standard Chartered Bank Tanzania Limited, Civil Application no. 453/01 of 2019, Salim Amour Diwan Vs. The Vice Chancellor Nelson Mandela African Institution of Science and Technology & The Attorney General, Civil Application no. 116/01 of 2021 and Jenga Said & 258 others vs. Blanket Manufacturer and two others, Civil application No. 668/01 of 2021 (All CAT-unreported). The learned advocates impressed upon the Court that, for the same to appreciate the nature of the raised preliminary points of law, copies of trial 3 Court’s judgment and the memorandum of appeal have to be visited as it was held by the Court of Appeal in the case of Moto Matiko Mabanga Vs. Ophir Energy Plc and Six others, Civil Appeal No. 119 of 2021 (CAT- unreported). And added that, since the raised points suffice to be pure point of law, then this Court be pleased to sustain them and proceed to struck out of the appeal with costs. In his reply submission Mr. Rweikiza, assailed the raised preliminary objections terming them as vexatious, frivolous and not worth of consideration by this Court. He contended that, the cited cases by the respondents’ advocates in support of their preliminary points of objection are irrelevant and dismissive as the memorandum of appeal could have been fatal had the appellant appealed against a person who was not a party to the trial court. According to him, in this appeal contrary is the truth as the appellant’s appeal is against the judgment which awarded general damage to four plaintiffs (respondents) in exclusion of the fifth (5th) plaintiff, one Yusuph Felemoni Mgaya who abandoned his case. He therefore opined that, the raised point of object fall short of the test as to what amounts to preliminary objection as enunciated in Mukisa Biscuit Manufacturing Company Ltd vs. West Distributors Ltd (1969) EA 696, which requires 4 the objection to be on pure point of law since the same cannot be raised if any fact has to be ascertained. In winding up his submission Mr. Rweikiza impressed upon the Court that, the memorandum of appeal filed did not violate rule 3(1) read together with rule 1 of order XXXIX of the CPC which sets out the form of appeal, contents of the memorandum and documents which the appellant is required to attach. He added that, also the order explains circumstances in which a memorandum may be rejected, so the objections by the respondent do not involve violation of any mandatory requirements for a properly drawn memorandum to warrant this Court strike out of the appeal. He thus implored the Court to dismiss the raised objections and allow the appeal to be heard on merit. In their rejoinder the respondents’ advocate reiterated their submission in chief and further opposed application of the Mukisa Biscuits’ case (supra) in this matter for being distinguishable given the scenario and facts herein. And lastly prayed the Court to follow the position taken in Moto Matiko case (supra) and proceed to strike out the memorandum of appeal with costs but with leave to refile for the interest of justice. 5 Having gone through the contending submissions from both sides and before addressing the above raised issue, it is imperative that this Court determines the point raised in the appellant’s submission that the points of objection raised do not meet the test in Mukisa Biscuits case (supra). The issue to be answered then is whether the two raised preliminary objections suffice to constitute preliminary objections on point of law. It is correct position of the law as rightly submitted by Mr. Rweikiza that, any raised preliminary objection being a pure point of law argued on assumption that all the facts pleaded by the other side are correct, cannot be raised if any fact has to be ascertained. That settled legal stance was expounded in the landmark case of Mukisa Biscuits Manufacturing Company (supra) when the Court observed thus: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." The above position was given much more postulation by the Court of Appeal in a case of Shose Sinare Vs. Stanbic Bank Tanzania Ltd, Civil Appeal No. 89 of 2020 (CAT-unreported) when referred to the case of The 6 Soitsambu Village Council Vs. Tanzania Breweries Ltd and Another, Civil Appeal No. 105 of 2011 (unreported), where it was stated thus: "A preliminary objection must be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate such facts, such an issue cannot be raised as a preliminary objection on a point of law. The court must therefore insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as a preliminary objection only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence." Though a preliminary objection must be on pure point of law and not the one that needs ascertainment of fact or evidence to be proved, that does not necessary mean that no fact shall be referred from the pleadings or record as objection cannot be raised from abstract. I am therefore persuaded that, some facts in the pleadings or record must be looked into without going into details of evidence rendered or facts pleaded therein as it was held in the case of Ali Shabani & 48 others Vs. Tanzania Road Agency and Another, Civil Appeal No. 261 of 2020 (CAT-unreported) where the Court of Appeal observed that: 7 “…at any rate, we hold the view that no preliminary objection will be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence.” Similar stance was taken by the Court of Appeal in case of Gideon Wasonga & 3 others versus Attorney General & 2others, Civil Appeal No. 37 of 2018 (unreported) where it was observed thus. “As to where the point of preliminary objection can be found, we do not have qualms that the court needs to ascertain it into the plaints and its annexures without any further evidence in determining the issue of time limitation. …the preliminary objection would always be in the record of appeal.” The Court went further at page 12 to conclude that: “In this regard, we are satisfied and we agree with the learned Principal State Attorney that the two-points objection set out in ground no. 2 are on points of law because they are discernible from the record of appeal without requiring support from evidence.” Applying the principles obtained in the above cited authorities to the facts of this case, where reference is made to the uncited party in the memorandum of appeal versus the parties obtained in the copy of judgment before the 8 lower court, I find no ascertainment of fact is needed to prove the raised points of objection by the respondents. As the issue is whether omission of the party who featured in the lower court record is fatal or not, I find the raised points by the respondent from the record of appeal suffice to constitute preliminary objections, hence the issue is answered in affirmative. While I am in agreement with Mr. Rweikiza’s submission that, it is Order XXXIX Rule 1(1) and (2) of the CPC that provides the manner or form in which an appeal under the CPC shall be preferred, I differ with his proposition that, the objection by the respondent ought to have been limited to the said prescribed manner. I so do as memorandum of appeal being the main document filed in Court when a party prefers an appeal though not mentioned in the law, the same must have correct or proper title of the Appeal Court, appeal case number and names of parties involved among other requirements, without which the memorandum will be rendered incompetent. In the cases of Salim Amour Diwani (supra) and Jenga Said and 258 Others (supra) where the applicants’ act therein had included names of parties who did not feature in the lower court records and objections raised by respondents on such defect, the Court of Appeal considered them as point of law and proceeded to determine them. Similar 9 stance was taken in the case of Isaack Wilfred Kasanga (supra), where the Attorney General who featured in the lower court proceedings was omitted in the application like the situation in the present matter. In view of the above, I now proceed to determine the second issue. The second issue is as to whether an omission to cite in the memorandum of appeal all parties featured in the lower court record is fatal and renders the appeal incompetent. While Mr. Rweikiza views it as irrational to appeal against the party (5th plaintiff) who abandoned his case and whose judgment disfavoured, the respondents hold a contrary view that it is mandatory so as to put the record straight and avoid further and unnecessary appeals. It is true and I agree with respondents’ counsel that, it was mandatory for the appellant to join in the memorandum of appeal the 5th plaintiff despite the fact that, judgment was not in his favour. It is not for the party or appellant to choose whom to join at the appeal stage, regardless of the fact as towhether he might not be adversely affected or prejudiced if not joined. It is so as a matter of principle and consistence on how proceedings should reflect, citing of all parties must be observed. I find solace in the Court of Appeal decision in the case of Isaack Wilfred Kasanga (supra) where the Court observed that: 10 ’’…parties cannot be allowed to dismantle the proceedings by choosing who to implead and who not to join. Even though we admit as pointed out earlier on in this decision, from the nature of the application before us the Attorney General would neither be adversely affected nor prejudiced, nevertheless, as a matter of principle and consistency in how the proceedings should reflect, citing all the parties involved must be observed.’’ (Emphasis supplied) Glancing at the both lower court judgment and decree and the memorandum of appeal in this matter, parties in the memorandum of appeal read as follows: TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY……………………………………………. APPELLANT VERSUS CHRISTOPHER ELIUD CHAMBO…………...............................1st RESPONDENT CHRISTOPHER ELIUD CHAMBO (Suing as a next friend of Eliud Christopher Chambo, minor) …………………………………….2nd RESPONDENT FRED GERALD ROMAN……………………………………………...3rd RESPONDENT NAKI ELIAHU LOBORA………………...……………………………4th RESPONDENT 11 While the cited names of the parties in the judgment in Civil Case No. 141 of 2020, subject of this appeal read: CHRISTOPHER ELIUD CHAMBO…………...............................1st PLAINTIFF CHRISTOPHER ELIUD CHAMBO (Suing as a next friend of Eliud Christopher Chambo, minor) …………………………………….2nd PLAINTIFF FRED GERALD ROMAN……………………………………………...3rd PLAINTIFF NAKI ELIAHU LOBORA………………...……………………………4th PLAINTIFF YUSUPH FILEMONI MGAYA………………………………………..5th PLAINTIFF VERSUS TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY…………………………………………. DEFENDANT From the above cited named of parties in both documents, the plaintiffs in the judgment were five (5) in number and while in this appeal respondents are four (4) as correctly stated by the Respondents’ advocates as the 5th plaintiff’s names were omitted in the memorandum of appeal. My thorough perusal of both lower court record and appeal proceedings could not unveil any order allowing the 5th plaintiff to either be removed from lower court’s proceedings or not to be included in the memorandum of appeal. For that reason, I tie hands with the respondent’s advocates that court proceedings have been altered. It is trite law that, parties in the proceedings should at 12 any given time appear as they did in the previous proceedings unless there is a reason for not observing that order. See the case of Salim Amour Diwan (supra) and Isaack Wilfred Kasanga (supra). In the present matter no any justifiable reason was advanced by Mr. Rweikiza for abandoning the 5th respondent/plaintiff apart from the ground that he abandoned his case before the trial court hence judgment was not entered in his favour. Court records are considered authentic and should not be easily altered as parties would wish to. See the case of Salim Amour Diwan (supra). In this matter since the appellant chose to amend the trial court records by failure to cite all names of respondents in the memorandum of appeal as featured in the lower court records, I find the raised points of objections meritorious hence sustain them. Now the next issue for determination is what cause should be taken under the circumstances where the court records have been amended without leave of the court. I think this issue need not detain this Court much. The respondents invited this Court to strike out the appeal with leave to refile. Having considered the respondents’ prayer, I find no merit in it as striking out the matter with leave to refile at the same time will not only cause delay 13 of determination this appeal, but also will invite unnecessary repetitive cases and add costs to both parties, something which goes against the objects of overriding objectives as spelt under section 3B of the CPC, which are just and timely disposal of parties disputes at affordable cost. I therefore find this is a proper matter to invoke oxygen principle which I hereby do. In the result, the appellant is ordered to amend memorandum of appeal to include the name of the 5th plaintiff within fourteen (14) days of this ruling and serve the copy to the respondents. The raised preliminary objections are sustained to that extent. Costs in cause. It is so ordered. Dated at Dar es Salaam this 09th October, 2023. E. E. KAKOLAKI JUDGE 09/10/2022. The Ruling has been delivered at Dar es Salaam today on 09th day of October, 2023 in the presence Ms. Jasmin Mankoo, advocate for the 14 Appellant, Mr. Benedict Mutta holding brief for advocate Peter Bana, for the Respondent and Mr. Oscar Msaki, Court clerk. Right of Appeal explained. E. E. KAKOLAKI JUDGE 09/10/2023. 15