BP Tanzania Ltd vs Dan and Associates Enterprises Ltd (Civil Appeal No. 25 of 2009) [2014] TZCA 2254 (28 November 2014)

t- ' I I i . ' IN THE COURT OF APPEAL OF TANZA~IA .AT DAR ES SALAAM CORA.M: MBAROUK, J.A., MASSATI, J.A., And MMILLA, J.A. CIVIL APPEAL NO. 25 OF 2009 BP TANZANIA LTD ..................... , .......................... ~···APPELLANT VERSUS . DAN & ASSOCiATES ENTERPRISES LTD ..... : ...•...... RESPONDENT (Appeal from the decision of the High Court of Tanzania Commercial Court) (Kalegeya, J.) Dated 15 th day ~f August, 2003 in Commercial Case No. 130 of 2001

RULING OF THE COURT 26 th November & 2 nd December, 2014. MBAROUK, J.A.: $ ,· When the appeal was called on for hearing, the Court wanted to satisfy itself on the propriety of the record of • • I appeal, hence itiwas forced to: raise suo motu a point as to . . whether the mandatory. requirements under Rule 89 (1) (f) of the Court of Appal Rules, 199 (Old Rules) were properly . . ' . . . complied v\ilth. We were ·forced to use the Old Rules, as this appeal was filed before co.ming into force of the new Rules. 1 ,,

., According to the Index. of what is contained in this appeal, it shows that at pages 98 - 117 of the record o.f appeal there are plaintiff's documentary exhibits which were tender~d at the trial court. However, looking at the filed exhibits in· the . . record of appeal, it seems not to have been endorsed by the trial court in compliance with Order XIII, rule 4 of the Civil Procedure Code, Cap 33 R.E. (CPC). Rule 89 (1) (f) of the Old Rules also directs that copies of all documents put in evidence at the hearing, to be part of the record of appeal. However. in the instant appeal, the alleged documentary exhibits found in the record of appeal are not endorsed by the trial judge as provided , under o. XIII r.4 of the CPC. There is therefore a possibility that the existing documents in the record of appeal may not be the real copies of the documents put in .<evidence at the hearing of the case before the trial ~ourt. 2·

.. I ·Mr. Thomas Sipemba, learned advocate for the appellant . I ·readily. conceded to the defect raised by the Court, but he p·rayed for the Court to invoke Rule 111 of the Court of Appeal RLles, (the Rules) and amend the defect. He submitted that, the defect was minor, and prayed that we invoke Rule 2 of the Rules and amend the record. He then assμred the Court that, after all the filed documents of exhibits were infact tendered at the trial court. · On'· his part, Mr. Edison Mbogoro, learned advocate for • the responden~ submitted that, as far as the learned advocate for the appellant has conceded to the defect raised by the Court, the only remedy is to strike out the appeal and •;. . if . he is still interested, he can make a fresh start. He maintained. that, the defect is not minor as: Mr. Sipemba . . suggested, as the requirement in the provisions· cited earlier are couched in mandatory terms. Mr. Mbogoro then prayed for costs as he has done a research for the purpose of 3 , ,

·, ,, preparing himself for the hearing of this app~al and also . he has come all the way from Songea. ~s shown above, Rule 89(1) (f) of the Old Rules {now · ·Rule 96(1) (f)) requires "copies" .of documentary exhibits to form part of the record of appeal. To comply with that rule, it must be shown that the actual copies i.e. those which were received and properly endorsed by the trial court are included in the record; not just those similar to those tendered. The rationale behind this rule is to ensure that all documents in the record of appeal are authentic. We do not therefore think that . the Rule is just cosmetic. For the foregoing reasons we are increasingly of the view that, non-compliance of those mandatory provisions of the law renders the record of appeal defective and suc_h defect is not a minor one. It is fatal. We are constrained to find that the record of appeal is fatally defectfve. For that reason, the 4

appeal is hereby struck out. Since the point was raised by the Court suo motu, there shall be no order as to costs. 2014. DATED at DAR ES SALAAM this 28 th day of November, M.S.MBAROUK JUSTICE OF APPEAL S.A. MASSATI · JUSTICE OF APPEAL B.M.K. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.~A , DEPUTY REGISTRAR COURT OF APPEA( 5