CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KEREFU. J.A.. FIKIRINI. J.A. AND MASOUP, J.A.) CIVIL APPEAL NO. 333 OF 2022 TORYA MACHINERY LIMITED................................................ 1st APPELLANT ERSAL YAZICI........................................................................2nd APPELLANT VERSUS EPSOM LIMITED.................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Maqoigaf_J.) Dated the 29th day of April, 2022 in Commercial Case No. 137 of 2019 RULING OF THE COURT 19th &21st February ,2025 KEREFU, J.A.: Before the High Court of Tanzania, Commercial Division, at Dar es Salaam, Epsom Limited, the respondent herein, sued Torya Machinery Limited and Ersal Yazici, the first and the second respondents, respectively, in that case, the respondent claimed for the following reliefs; (i) special j; damages of US$ 31,500; (ii) compensation of legal fees amounting to US$ 3,000; (iii) general damages; (iv) commercial interest of 21% of the Sr decretal sum from the date of filing of the suit to the date of judgment; (v) interest at the court's rate of 12% from the date of judgment till the satisfaction of the decree; (vi) a declaratory order to lift a corporate veil to the second appellant; and (vii) costs of the suit. In their joint written statement of defence, the appellants disputed the respondent's claim and prayed for the dismissal of the suit with costs. However, at the end, the learned trial Judge decided the suit in favour of the respondent. Aggrieved, the appellants lodged the current appeal. In the memorandum of appeal, the appellants have raised nine grounds of complaints. However, for reasons that will shortly come to light, we do not i- deem it appropriate, for the purpose of this ruling, to reproduce them herein. When the appeal was placed before us for hearing, the appellants were represented by Mr. Gabriel Mnyele, learned counsel whereas the respondent was represented by Mr. Shehzada Walli, learned counsel. However, before we could embark on the hearing of the appeal on merit, we wanted to satisfy ourselves on the validity of the notice of appeal, appearing at page 373 of the record of appeal, lodged by the V appellants on 16th May, 2022. We decided to take that route, because the said notice is not tallying with the judgment and the decree of the High Court sought to be challenged appearing at pages 351 and 371 of the same record. Specifically, the names of the parties indicated in the judgment and the decree do not tally with the names of the parties indicated in the appellants' notice of appeal. As such, we invited the learned counsel for the parties to address us on that matter. In his response, apart from conceding that the names of the parties appearing in the notice of appeal are different from the names of parties indicated in the High Court's judgment and decree, Mr. Mnyele argued that, < the same does not render the notice of appeal invalid as, the said omission y' t- was occasioned by the High Court when composing the judgment. i According to him the said defect should be considered as a minor clerical I error which is curable. He thus urged us to remedy the said defects by Invoking the overriding objective principle. On that basis, Mr. Mnyele prayed for the adjournment of the hearing of the appeal, firstly, to afford the appellant an opportunity to approach S i the High Court to correct the defects in its judgment and decree under ( section 96 of the Civil Procedure Code, Cap 33 of the Revised Laws; and 1 secondly, to be granted leave to lodge a supplementary record of appeal t under Rule 96 (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to include the correct High Court's judgment and decree appealed against in the record of appeal. On his part, Mr. Walli readily conceded that the appeal is not properly before the Court, as the notice of appeal and the High Court's judgment and the decree sought to be challenged contains different names of the 1. parties. To clarify on this point, Mr. Walli referred us to pages 351, 371 and f 373 of the record of appeal and argued that, since the names of the parties in those documents do not tally, the notice of appeal before the Court is invalid and had rendered the entire appeal incompetent liable to be struck but. Besides, Mr. Walli challenged the submission made by Mr. Mnyele on J. > the applicability of the overriding objective principle in this appeal. He argued that, since the notice of appeal before the Court is invalid, there is ho appeal which can be rescued by the said principle. Mr. Walli also challenged the prayer by Mr. Mnyele of lodging a supplementary record under Rule 96 (7) of the Rules. It was his strong { argument that, since the notice of appeal before the Court is invalid, the said provision is not applicable. That, since Mr. Mnyele has conceded to the \ said defects then, the remedy is to strike out the appeal with costs for », being incompetent. Based on his submission, Mr. Walli beseeched the Court to struck out the appeal with costs for being incompetent. 4 In a brief rejoinder, Mr. Mnyele reiterated his previous prayers and indicated that if, given the opportunity, he will manage to lodge the supplementary record of appeal within seven days. On our part, having examined the record of appeal and considered % the submissions made by the learned counsel for the parties, we agree with the submission made by Mr. Walli that the appeal is not properly lodged j. before the Court. It is on record, and as it has been equally conceded by both learned counsel for the parties, the notice of appeal, appearing at page 373 of the 1 record of appeal, lodged by the appellants on 16th May, 2022 contains different names of the parties which do not tally with the names of the r. parties appearing in the High Court's judgment and decree. In the circumstances, the said notice of appeal before us is invalid. Worse enough, bven the memorandum of appeal contains different names from the { judgment and the decree sought to be challenged. It is our considered view that, since the learned counsel for the appellants is the one who lodged the notice of appeal on 16th May, 2022 i'* V. and the memorandum of appeal on 13th July, 2022, he had an obligation to lodge a correct and competent record in the Court as he certified it on the same date. This would have properly moved the Court to determine the appeal on merit. It is our further view that had the learned counsel for the appellants paid serious attention to Rule 96 (5) of the Rules, he would have easily I discovered that the names of the parties indicated in the High Court's judgment and the decree sought to be challenged do not tally with the names of the parties appearing in the notice of appeal and the memorandum of appeal. The Court in several occasions has reminded parties together with their advocates to ensure that documents lodged in this Court do not contain errors. See for instance the cases of; Umoja Garage v. National Bank of Commerce [1997] TLR 109 and Anthony ivigoo and Another v. Kitinda Kimaro, Civil Appeal No. 33 of 2013 [2014] TZCA 2139: [17 March 2014: TanzLII]. In the latter case the Court held that: "Had the learned counsel taken time to verify on the correctness of the certificate o f delay or any other documents for that matter before incorporating them in the record of appeal, the conspicuous defects ...would have been attended to... in terms of Rule 96 (5) of the Rules." [Emphasis added]. We are aware that the above case is on the defects found on the certificate of delay, but we find the same to be relevant to the i circumstances of this appeal as in that case, the Court among others, considered the duty imposed on the appellant and his advocate under Rule 96 (5) which is the subject matter herein. We are also mindful of the fact that the overriding objective principle can be invoked in certain circumstances to facilitate speedy delivery of justice. However, we do not agree with the prayer made by Mr. Mnyele in \ respect of this appeal, as the said principle cannot be applied blindly against the mandatory provisions of the procedural law which goes to the very foundation of the case. See for instance our previous decisions in iMjake Enterprises Limited v. Blue Rock Limited and Another, Civil Appeal No. 69 of 2017 [2018] TZCA 304: [3 December 2018: TanzLII] and \ Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited and 4 Others, Civil Appeal No. 66 of 2017 [2018] TZCA 303: [14 December, 2018: TanzLII]. In the present appeal, we think, we cannot overlook the fact that the notice of appeal before us is invalid hence rendering the entire appeal r i incompetent. It is also noteworthy that, in the current appeal, there is no missing record envisaged under Rule 96 (7) of the Rules but a notice of appeal which is not compatible with the judgment and the decree sought to be challenged. In that regard, we agree with the submission made by Mr. Walli that the provisions of Rule 96 (7) of the Rules relied upon by Mr. Mnyele is not applicable in this appeal. For the foregoing reasons, we are constrained to strike out the appeal as we hereby do. Considering the circumstances of this appeal, we make no order as to costs. DATED at DODOMA this 20th day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025, in the presence of Mr. David Malugu, holding brief for Mr. Shehzada Walli, learned counsel for the Respondent and in absence of the Appellant who duly notified, is hereby certified as a true copy of the original.