Zanair Limited & Another vs Hassan & Sons Ltd (Civil Application No. 348/15 of 2017) [2017] TZCA 397 (6 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR fCO RAM : JUMA, C.J., MBAROUK, J.A., And MZIRAY, 3.A .) CIVIL APPLICATION NO. 348/15 OF 2017 ZANAIR LIMITED ...........................................................1 st APPLICANT CARL SALISBURY................................................................. 2 nd APPLICANT VERSUS HASSAN &SONS LTD.......................................................... RESPONDENT (An Application for Revision of the proceedings, rulings and orders, of the High Court of Zanzibar ) (Makunqu, C. 3.1 dated 20th January, 2017, 23rd January, 2017 and 20th March, 2017 in Civil Case No. 3 of 2017 RULING OF THE COURT 29th November & 6th December, 2017 MZIRAY, J.A.: These revisional proceedings were instituted under section 4(3) of the Appellate Jurisdiction Act, Cap 141 (the Act) and Rule 65 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At issue is the correctness, legality or propriety of the proceedings, rulings and orders of 20th January, 2017, 23rd January, 2017 and 20th March, 2017 in Civil Case No. 3 of 2017 in the High Court of Zanzibar.

In response, the respondent raised a notice of preliminary objection couched in the following words:-

1. The application is incapable o f being heard by the Court for failure on the part o f the Applicants to com ply with Rule 106 o f the Court o f Appeal Rules, 2009.
2. The application is incom petent at law for being on interlocutory orders which have no effect o f fin ally disposing o f the main issues in dispute. Before entertaining the preliminary objection raised, the Court, suo motu raised the issue whether the application was competent. This is particularly so when it transpired that the plaint and written statement of defence, that is, the pleadings upon which the action was founded, were not included in the record of the application. Mr. Walter Chipeta,learned advocate for the applicant, in response submitted that in as far asthe application is concerned, the applicant only annexed documents relevant to the matter in

controversy and that the plaint and written statement of defence were not necessary documents by looking and taking into account the nature of the application. On his part, Mr. Othman Masoud Othman, learned counsel for the respondent, submitted that the failure to incorporate the two documents in the record of the application renders the matter to be incompetent. On that account, he urged us to strike out the application as it is incompetent. In revisional proceedings, as is the case in an appeal, the applicant has to file the entire lower court proceedings. That is inescapable. A decision to choose documents that are not relevant for the determination of the matter in controversy is not optional on the party filing the record. (See for example, -Mariam Idd [as Administratrix of the estate of the late Mbaraka Omari] v. Abdulrazack Omary Laizer [as Administrator of the estate of the late Abubakar Omari and Rodrick Humphrey Jonas; Civil Appeal no. 20 of 2013, Fedha Fund and two others v George T. Vargheese and Another, Civil appeal No. 8 of 2008 and Jamal A. 3

Tamim v. Felix Francis Mkosamali And the Attorney General- Civil Appeal no. 110 of 2012 (all unreported). We are of the settled mind that the applicant had an obligation to file a complete record. There have been many decisions on this, among others - see for example Tanzania Air Services Ltd versus Registered Trustees of the Precious Blood Fathers, Civil Appeal No. 90 of 2008, Dominic Mbalamula and 23 Others versus Tanzania Breweries Ltd, Civil Appeal No. 62 of 2004, (both unreported), Kiboro versus Ports and Telecommunications (1974) E.A. 155. The National Bank of Commerce versus Methusela Magongo (1996) TLR 394 and The Board of Trustees of the National Social Security Fund (NSSF) v. Leonard Mtekpa, Civil Application No. 140 of 2005 (unreported). To illustrate this position, we find it instructive to reproduce what the Court stated in The Board of Trustees of The National Social Security Fund (NSSF) (supra) as follows: "...In the B e n e d ict M a b a la n g a n ya case /Civil Application No. 1 of 2002 7 which was cited by the respondent ; this 4

Court was dealing with an application fo r revision under section 4(3) o f the Act ; and asked itse lf the question whether that application was competent. I t m ade a fin d in g th a t th e re c o rd b e fo re it w as in co m p le te fo r re v is io n p u rp o se s. I t d id n o t h a v e a ll th e n e ce ssa ry d o cu m e n ts . It had only the notice o f motion , the advocates' affidavit and the ruling o f the judge o f the High Court which was sought to be revised. It did not have a copy o f the proceedings o f the High Court. It then said The record o f proceedings o f the High Court, and in th e case o f th e a p p e lla te ju ris d ic tio n o f th e H ig h C ourtr th en th e re c o rd o f p ro ce e d in g s o f th e lo w e r c o u rt o r co u rtsr m u st be b e fo re th is C ourt. T h is is g la rin g ly c e rta in fro m th e v e ry d e fin itio n o f w h a t re v isio n e n ta il a n d i f th e C o u rt is to p e rfo rm th a t fu n c tio n - — . Now, when the Court acts on its own motion it w ill have 5

to ca ll fo r those records itself. But when the Court is moved, as in this case, then the one who moves it w ill have to supply those r e c o r d s [Emphasis added]. The issue of completeness of the record was also discussed in the case of Chrisostom H. Lugiko vs Ahmednoor Mohamed Ally, Civil Application No. 5 OF 2013 (unreported). The Court declined to exercise its power of revision because the whole record was not before it. The following observation which the Court made is relevant to the present application before us: "...we are unable to say anything m eaningful in relation to Land Application No. 25 o f 2007 because we are not seized with a ll the proceedings relating to the said application. As such, w e ca n n o t ste p in a n d m ake a n o rd e r o f re v isio n o v e r so m e th in g w e do n o t h ave th e fu ll p ic tu re ." [Emphasis added]. On the basis of the preceding cited authorities herein above, definitelythis application is not properly before the Court. It is 6

incompetent for not incorporating the plaint and the written statement of defence, which are pleadings upon which the action was founded in the High Court. That said therefore, we strike out this incompetent application. We make no order as to costs as the issue of incompleteness of the record was raised by the Court suo motu. It is ordered accordingly. DATED at ZANZIBAR this 4th day of December, 2017. I.H. JUMA, C J JU S T IC E OF A P P E A L M.S. MBAROUK JU S T IC E O F A P P E A L R.E.S MZIRAY JU S T IC E OF A P P E A L I certify that this is a true copy of the original, E.Fl F6JSSI DEPUTY REGISTRAR COURT O^APPEAL 7