Kariakoo Auction Mart vs Mashaka Dyanga and Others (Civil Appeal No. 234 of 2019) [2022] TZCA 3100 (13 July 2022)

KARIAKOO AUCTION MART V. MASHAKA DYANGA, JUMA S. SAMBA, ABDULWAHAB HAMZA, NASSORO SAID, MOHAMED MMANDE, SIASA MOHAMED, RAMADHANI J. YAGGA, ABDUL S. DUNDA IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MWARIJA. J.A. SEHEL. J.A. AND FIKIRINI, J.A.) CIVIL APPEAL NO. 234 OF 2019 (An Appeal from the judgement and decree of the High Court of Tanzania at Dar es Salaam District Registry in Civil Case No.86 of 2088 dated 26 th February 2016) Appeal – Taking of additional evidence- prerequisites for taking additional evidence- Whether evidence can be taken at the appellate stage? Appeal- Grounds of Appeal- Addition of grounds- Whether grounds of appeal can be added at the appellate stage? This application arose from the fact that the respondent sued the applicant for damages in Civil Case No. 86 of 2008, following the applicant’s termination of their shareholding and participation in the respondent’s company activities. Dissatisfied with the decision, the applicant appealed to this Court. Before addressing the grounds of appeal, the applicant’s counsel made two preliminary prayers, both of which were subsequently granted. The Court had to determine whether evidence can be taken at the appellate stage, and whether grounds of appeal can be added at the appellate stage. Held: (i) The Court held that evidence may be taken in the appellate stage upon the set prerequisites that one, there is an existence of an appeal before this court, two, the appeal must stem from High Court exercising its original jurisdiction and three, in exercising its discretion, this court must be furnished with sufficient reasons to allow it to decide the way or the other and also decide whether it is the court or the High Court which should take additional evidence. (ii) The Court further stated justice demands that parties be heard and the avenue is availed under rule 113 (1) of the rules. Statutory Provisions referred to : (i) Rule 36(1) (b) and 2, 113(1) The Tanzania Court of Appeal Rules 2009, as amended. Case Law referred to: (i) Hashi Energy (T) Limited vs. Khamis MAganga, Civil Application No.200/16 of 2020 (unreported). (ii) Jamaat Ansaar Sunna vs The Registered Trustees of Umoja wa Vijana Chama cha Mapinduzi, Civil Application No. 46 of 1996 (unreported). (iii) Mbeya-Rukwa Auto-Parts and Transport Ltd vs. Jestina George Mwakyoma (2003) TLR 251. (iv) Hamisi Rajabu vs. R (2004) TLR 181. (v) Abbas Sherally & Another vs. Abdul S.H.M. Fazalboy, Civil Application No.33/2002 (unreported). (vi) African Barrick Gold PLC vs.Commissioner General (TRA), Civil Application No.177/20 of 2019 (unreported). For the Applicant: Mr. Edward Peter Chuwa and Miss Anna Lugendo. For the Respondent: Mr. Godfrey Ukongwa.