Iain Pattie Associates Ltd. vs Wellworth Hotels & Lodges Ltd. (Civil Appeal No. 99 of 2014) [2017] TZCA 215 (30 August 2017)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MUSSA. J.A.. MUGASHA, J.A., AND MWAMBEGELE, J J U CIVIL APPEAL NO. 99 OF 2014 IAIN PATTIE ASSOCIATES L T D ............................................APPELLANT VERSUS WELLWORTH HOTELS AND LODGES L T D ....................... RESPONDENT [Appeal from the Ruling and Order of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Nvanqarika. J.^ Dated the 20th day of November, 2013 in Miscellaneous Commercial Cause No. 1 of 2013 RULING OF THE COURT 7 °* & 30th August, 2017 MWAMBEGELE, J.A.: Against this appeal filed by Iain Pattie Associates Ltd, the respondent Wellworth Hotels and Lodge Ltd has raised two sets of preliminary objections. The first set, whose notice was lodged pursuant to rule 107 of the Tanzania Court of Appeal Rules, 2009 (hereinafter "the Rules") on 13.02.2015, is composed of the following two points: i

1. That the agreement subject matter of arbitration proceedings giving rise to this Appeal has not complied with sections 5( 1) (a) and 47 of The Stamp Duty Act [CAP. 189 R.E. 2002].
2. That the record of Appeal is incomplete for want of audio recordings of the Arbitration proceedings contrary to Rule 96 (1) (d) or 96 (2) (c) of the Court of Appeal Rules, 2009 that are directly relevant. The notice in respect of the second set was lodged on 20.07.2017 and comprises five points is couched thus:
3. That the Appeal is incompetent for reasons that proceedings of the National Construction Council are unsigned and/or uncertified;
4. That the Appeal is incompetent for reasons that proceedings of the National Construction Council are incomplete for lack of audio recordings;
5. That the appeal is incompetent for reasons that the transcript of shorthand notes of the Hon. Arbitrator taken

at the trial before audio recordings have been omitted from the record; 4. That the appeal is incompetent for reasons that a letter by the appellant seeking for certified copies of proceedings, ruling and drawn order, if any, has been ommitted from the record of appeal; and 5. That the Appeal is incompetent for reasons the record of appeal is incomplete for lack of audio recordings. We heard the parties on the points of preliminary objections on 07.08.2017 during which the appellant and respondent had the representation of Mr. Deogratias Ringia and Mr. Rosan Mbwambo, learned advocates, respectively. At the oral hearing, the learned counsel for the parties sought to adopt the written submissions they earlier filed in support of and against the preliminary objection. We have examined the two sets of preliminary objections quite closely. We wish to state at this juncture that the respondent, in the written submissions as well as at the oral hearing, did not refer to and did not specifically front any arguments in respect of the first

set of preliminary objections. However, we think the course of action was deliberately taken as the two points in the first set are, in essence, incorporated in the second set filed later. Be that as it may, we think the matter can be disposed of on only the fourth point of preliminary objection in the second set. This point hinges on the complaint to the effect that the appeal is incompetent for the reason that a letter by the appellant seeking certified copies of the proceedings, ruling and drawn order intended to be challenged has not been incorporated in the record of appeal. On this point, the respondent submitted that the letter applying for certified copies of proceedings, ruling and drawn order ought to have been incorporated in the record of appeal under the dictates of rule 96 (1) (k) of the Rules, failure of which makes the record incomplete and renders the appeal incompetent. On failure to include an important document in the record of appeal and its consequences, the respondent has cited Tengeru Flowers Limited v. Dal Forwarding (T) Limited & 2 others, Civil Appeal No. 12 of 2011, Jaluma Supplies Ltd v. Stanbic Bank (T) Ltd,

Civil Appeal No. 77 of 2011, Bank M (Tanzania) Limited v. Enock Mwakyusa, Civil Appeal No. 109 of 2012, Fedha Fund & Two Others v. George T. Varghese & Another, Civil Appeal No. 8 of 2008 and African Barrick Gold Mines PLC v. Commissioner General TRA, Civil Appeal No. 77 of 21016 (all unreported). In all the above cases, the Court struck out the appeals on account of incompetency for failure to include in the record of appeal important documents. The respondent has therefore urged the court to strike out the present appeal with costs. The appellant's counsel, in the written submissions against the preliminary objection, has left no stone unturned. In respect of the fourth complaint in the second set which is the point under scrutiny, the learned counsel has argued at some considerable length that the provisions of the Rules, particularly rule 96 (1) (a) - (k), 96 (2) (a)

• (f), 96 (3), 96 (4), 96 (6), 98 (1) (b) and (c) and (2) and 99 (1) do not require that all documents which are in the original record of proceedings should be contained in the record of appeal. As regards the letter requesting for copies of proceedings, ruling and drawn

order, counsel for the appellant has argued that the document is not one of the documents set out in rule 96 (1) (a) - (j) and 96 (2) (a)

• (f). Counsel argues that under rule 96 (1) (k) the words used are "such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant", and that the letter is not relevant for the proper determination of the appeal. Construing it as relevant, he argues, would make the provisions of rule 98 (1) (b) and (c) and (2) and rule 99 (1) redundant. Arguing about rule 96 (3), counsel for the appellant argues that reading the sub-rule together with other rules particularly rules 96 (k), the proviso to rule 96 (1), rule 96 (2), rule 98 (1) (b) and (c), rule 98 (2) and rule 99 (1), the documents that would need discretion of the Registrar or justice to be excluded from the record are those set out under rule 96 (1) (a) - (j). He argues that saying that any document to be excluded must get the direction of the registrar of justice would make rule 96 (1) (k), the proviso to rule 96 (1) and rule 99 (1) redundant.

On the cases cited by the learned counsel for the respondent, the learned counsel for the appellant argues that they are distinguishable for two main reasons; one, the conclusions reached therein "missed an analytical discussion" as discussed by the learned counsel for the appellant in his submissions and, two, they did not deal with the missing letter requesting for copies of proceedings, ruling and drawn order in the record of appeal. The learned counsel for the appellant has thus urged the Court to dismiss the preliminary objection with costs. We have considered the rival arguments by both learned counsel for the parties. It does not need any effort, or it needs very minimum effort, if any, to note that, on the preliminary point of objection under investigation, the learned counsel for the parties are at one on the deficiency complained of by the respondent being apparent in the record of appeal. The only difference between the learned counsel for the parties on which they have locked horns, is whether the deficiency is or is not relevant for the determination of the appeal.

For a better understanding of the arguments of the appellant's counsel, at paragraphs 15 through to 18 of the written submissions in reply, the appellant has made a submissions which, we think, merits, quotation. The appellant has submitted: "15. A le tte r requesting fo r copies o f proceedings ruling and order is not one o f docum ents se t out in Rule 96 (1) (a)-(k) and or 96 (2) (a) - (f). I t is n ot a docum ent which in the A ppellant's opinion, in th is case, in necessary fo r the proper determ ination o f th is appeal under Rule 96 (1) (k). N either is it a docum ent relevant to the m atter in controversy on the appeal under the proviso to Rule 96 (1). 16. Honourable Justice o f Appeal rationale o f Rule 96(1) (k) and proviso

to Rule 96(1 ) as well as Rule 99(1 ) is very sim ple. I t is that if the A ppellant erroneously considers any other docum ent as irrelevant and to the m atter in controversy o r unnecessary fo r proper determ ination o f his/her appeal and does not include it in the records w hile it is actually necessary and o r relevant then he/she w ould fa il to m ake his/her case properly on appeal. He/she therefore risks losing the appeal. E q u a l l y i f the Respondent does n ot lodge a supplem entary record in order to include a docum ent which, in his/her opinion and fo r purpose o f his/her case is required fo r proper determ ination o f the appeal, he/she

risks fa ilin g to properly challenge the appeal. 17. Honourable Ju stice o f Appeal, our subm ission is that the tetter requesting fo r copies o f proceedings, R uling and O r der is n ot one o f the docum ents se t out in Rule 96(l)(a)~ (k) and (2) (a)-(f). We subm it that the p rin ciple expression unius est exlusio alterius that which is not expressly included is expressly excluded is relevant.A le tte r requesting fo r copies o f proceedings , ■ R uling and O rder is n ot included in the lis t o f docum ent se t out in Rule 96(1) (a )- (k) and (2) (a) - (f). I t is therefore excluded. I f the C h ief Ju stice in m aking the R ules intended

that a le tte r requesting fo r copies o f proceedings, R uling and O rder is essentia! and o r m andatory he should have sp ecifically liste d it H olding otherw ise w ould be going against the Rules. 18. Further that in the A p p ellan ts opinion such docum ent is n ot necessary in determ ining the appeal and o r relevant in the m atter in controversy in th is appeal. We subm it th at if the Respondent thought that th is le tte r is necessary fo r her case she should have lodged it under Rule 99(1). She cannot be heard com plaining against its non-inclusion." The foregoing submissions by the appellant looks very persuasive at first sight. However, having carefully gone through li

case law, we find ourselves unable to go along with the arguments and conclusion of the appellant's counsel. We shall demonstrate. We state here that the learned counsel for the appellant is right in stating that the authorities cited by counsel for the respondent did not deal with missing in the record of appeal of a letter applying for copies of proceedings, ruling and drawn order. At the risk of making this ruling unduly long, we take the liberty to provide, albeit briefly, the gist of some of them and actually, the same has been provided by the learned counsel for the appellant at paras 23 and 24 of the written submissions in reply. Bank M (T) Ltd dealt with a missing ruling and an order granting leave to appeal, Tengeru Flowers Ltd dealt with missing issues for determination and African Barrick Gold dealt with omission to include documentary evidence tendered at the trial, Jaluma Supplies Ltd dealt with missing record of proceedings and documents put in evidence at the trial and Fedha Fund missing proceedings for security for costs. However, far from what Mr. Mbwambo, we think the authorities are relevant to the

present matter insofar as they dealt with omissions to incorporate relevant documents for the determination of the appeal. A letter applying for copies of proceedings, judgment/ruling and order is a relevant document for the determination of any appeal and if not incorporated in the record of appeal that record will be incomplete and the appeal will be rendered incompetent. The Court was seized with an akin situation in Hamis Mohamed v. Justine Kisima, Civil Appeal No. 35 of 2014 (unreported). In that appeal, the respondent raised a preliminary objection, in te r alia, that a letter applying for copies of proceedings and judgment was missing in the record of appeal. The Court held that the omission was fatal and made the appeal incompetent and proceeded to strike it out. In the present case, we do not see any reason why we should depart from what we stated in Hamis Mohamed v. Justine Kisima (supra). Coming to the arguments on the choice of which documents to be excluded from the record, we are afraid, the learned counsel for the appellant has misconstrued the provisions of rule 96 (3) of the Rules. Again, in Hamis Mohamed v. Justine Kisima (supra), 13

the Court, relying on its previous decisions of Mariam Idd (as Administratrix of the estate of the late Mbaraka Omari) v. Abdulrazack Omar Laizer (as Administrator of the estate of the late Abubakar Omari) v. Rorick Humphrey Jonas, Civil Appeal No. 20 of 2013, Fedha Fund (supra) and Jamal Tamim v. Felix Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012 (all unreported), held at p. 4 of the typed judgment that: "This Court has held, tim e and again that a decision to choose docum ents that are not relevant fo r the determ ination o f the appeal is not optional on the p arty filin g the record o f appeal" And the Court went on: "Since proceedings and decision o f the Kigogo W ard Tribunal, sale agreem ent (E xhibit P I) referred a t page 18 o f the record and a letter applying for copies ofproceedings, judgment and decree 14

were n ot incorporated in the record o f appeal, then, the provisions or Rule 96 (2) o f the R ules were thus contravened." [Emphasis supplied]. And for that reason, the Court proceeded to strike out the appeal. Likewise, in Fedha Fund (supra), the Court observed: "... the decision to choose docum ents relevant fo r the determ ination o f the appeal is not optional on the p arty filin g the record o f appeal." The appellant's counsel lengthy analysis notwithstanding, the decisions of the Court, a string of them, are consistent that the decision of which documents to exclude from the record of appeal is not within the empire of the party filing the appeal and the record thereof, but within the powers of the Justice or Registrar of the High Court- see also: Jaluma General Supplies Ltd, Fedha Fund

Limited and Barrick Gold (supra) and Tanzania Tobacco processors Ltd v. Tanzania Union of Industrial and Commercial Workers (TUICO), Civil Appeal No. 28 of 2013 (unreported). In the instant appeal, the letter applying for the copies of proceedings, ruling and drawn order is very relevant for the determination of the present appeal, for, it is a yardstick in determining the competency of the appeal. This is so because the Notice of Appeal was filed on 14.12.2013 well within time. However, the memorandum and record of appeal was lodged on 31.10.2014. In the light of the dictates of rule 90 (1) of the Rules, the appellant was supposed to file her appeal within sixty days of filing the notice. The appellant, within the dictates of rule 90 (2), can only enjoy the exemption provided for under rule 90 (1) if she applied for copies of proceedings, ruling and drawn order within thirty days of the ruling intended to be challenged. This being the case, in the present appeal, in the absence of the letter applying for copies of

proceedings, ruling and drawn order of the High Court, we cannot determine whether the appeal was filed within time. In view of the foregoing, the letter by the appellant applying for the copies of the proceedings, ruling and drawn order, becomes very relevant for the determination of the appeal, short of which the appellant is not entitled to enjoy the exemption under the proviso to rule 90 (1) of the Rules. The above said, we are of the considered view that the omission to include in the record of appeal the letter by the appellant to be supplied with copies of proceedings, ruling and drawn order of the High Court makes the record of appeal incomplete and, consequently, the appeal is rendered incompetent. The fourth point of preliminary objection in the second set of the objections is therefore meritorious and sustained. As already alluded to above, the fourth point in the second set of the POs disposes of the matter. We therefore do not find it necessary to determine the other points of objection. 17

In the upshot, on account of incompetency, the present appeal is struck out with costs. Order accordingly. DATED at DAR ES SALAAM this 25th day of August, 2017. K. M. MUSSA JUSTICE OF APPEAL S. A. E. MUGASHA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 18