Jared Nyakila and Others vs Shanti Shah and Others (Civil Appeal No. 87 of 2012) [2013] TZCA 2358 (11 November 2013)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., BWANA 1A., And JUMAV ).A.) CIVIL APPEAL NO. 87 OF 2012 JARED NYAKILA NYAKILA TRANSPORT AND GENERAL SUPPLIES LTD . ............................................ ....... APPELLANTS VERSUS SHANTI SHAH NELOFERABDUL N NEW FISH FILLETTERS LTD . ........................................... RESPONDENTS (Appeal from the Ruling of the High Court of Tanzania, Commercial Division, at Dar es Salaam.) (Makaramba, J.) Datedthe 15thdayof Mach, 2011 In Commercial Case No. 40 of 2008 RULING OFTHE COURT 25th Oct, & 21 s' Nov, 2013 BWANA, J.A.: The record before us contains two confusing steps taken by the appellants. The first such confusion is created by the Notice of Appeal. The said notice refers to "an appeal from the ruling of the High Court of Tanzania (Hon. Bukuku, J.), dated 13th December, 2011 in Commercial Case No. 40 of 2011. The second confusion stems from 0 1

the Memorandum of Appeal "from the Ruling of the High Court of Tanzania - Commercial Division at Dar es Salaam (Mr. Justice Makaramba) dated lSth March, 2011 in Commercial Case No. 40 of 2008. Given the above confused statements (notice and memorandum), Mr. Dilip Kesaria, learned counsel for the respondents, filed a notice of preliminary objection couched in the following words:- There is no valid Notice of Appeal in respect of the appeal. No leave to appeal has been sought or obtained in respect of the decision sought to be appealed. Particulars:

1. The Notice of Appeal appearing at pages 185 and 186 of the record of appeal:- • Contains a generic reference to the appellant as " ...........& / Another" not specifying the name/identity of the said other appellant; and • Refers to the decision of Hon. Bukuku, J. dated 13th December, 2011 as the one against which the appeal is intended, whereas the record and memorandum of appeal seeks to appeal the decision of Hon. Makaramba, 3. of 15th March, 2011.

2. No leave to appeal has been obtained pursuant to section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141, against the decision of Hon. Makaramba, J. dated 15th March, 2011 sought to be appealed in this appeal. In his submission before us, Mr. Kesaria emphatically pointed out the following positions of the law. First, since the Notice of Appeal at pages 185-186 of the record makes generic reference (........& Another) without specifying the names of that "Other", the said notice is defective, the names of those "Others" should have been given. He supported his argument by citing the case of Christina Mrimi Vs Coca Cola Kwanza Bottles Ltd., Civil Appeal No. 112 of 2008. Second, Mr. Kesaria submitted, the said notice of appeal refers to an appeal against the decision of Bukuku, J. dated 13th December, 2011 whereas the memorandum of appeal makes reference to the decision of Makaramba, J. dated 15th March, 2011. Should that be true, then according to Mr. Kesaria, there is no notice of appeal against Mr. 3

Makaramba's ruling. There can be no appeal without a notice. Likewise, the contents of the memorandum of appeal have hothing to do with Justice Bukuku's ruling. Third, if this appeal is against Justice Makaramba's ruling, then it is incompetent as no leave has been sought and obtained in terms of section 5 (1) (c) of the Appellate Jurisdiction Act, Cap' 141 (Cap 141). For the foregoing reasons, Mr. Kesaria invited the Court to strike out the appeal with costs for being incompetent. On his part, Mr. Gabriel Mnyele, learned counsel for the appellants, held that the preliminary objection has no basis. This is true, according to him, because of the following:- First, although he admits the errors pointed out by Mr. Kesaria, the said errors are minor, typographical and purely human which could be rectified by the Court invoking Rule 111 of the Court of Appeal Rules, 2009 (the Rules) since they do not prejudice the respondents. Second, for all intents and purposes, there is no appeal against Justice Makaramba's ruling. The appeal is against Justice Bukuku's ruling 11

and therefore the notice of appeal at pages 185-186 of the record, fully comply with the necessary requirements of Rule 83 and form D of the Rules. Third, should the Court hold that this appeal is 'against Justice Bukuku's ruling, then there IS no need for leave as section 5 (i) (c) of Cap 141 provides. We now consider the issues raised above and we do so by adopting a

• similar sequence as presented before us by the learned counsel. We start by examining the issue of generic reference to parties. We are mindful of the provisions of Order 1 R. 8 of the Civil Procedure Code, (the. CPC) wherein one party may sue or defend on behalf of others with same interest in a suit. Thus a representative suit is admissible under the CPC. It is, however, settled that such representation is not admissible before this Court. (See: Hamis Kaka . and 78 Others vs TRC, Civil Appeal No. 68 of 2008; Ludger Nyoni and Harrison Lyombe (for and on behalf of 369 tenants vs National Housing Corporation, Civil Wi

Application No. 37 of 2007 - both unreported). In the latter case, the Court held:- "It seems that the 79 plaint/ifs thought the same procedure of representative suit appiles to this Court...... that is not so. It is trite that the provisions of the CPC do not apply to this Court . ... a representative suit as provided under Order 1 Rule 8 (1) of the CPC is not applicable in this

Court......1"(Emphasisprovided). ConseqUently, the names of all the parties to this appeal should have been listed. Mere reference to . ............and Others, is incomplete and incomprehensible. Of particular relevancy to the instant appeal is that (as per Mr. Kesaria and not controverted by Mr. Mnyele) averment that of the original four, only three respondents are alive. One has died but we are not told whether the provisions of Rule 105 of the Rules have been invoked. We therefore agree with Mr. Kesaria that the generic approach preferred by Mr. Mnyele on this issue is defective. The names of all the parties should have been listed. PC S

Mr. Mnyele suggested that the Court allow corrections to be made to the errors identified since they are not fatal to substantive issues raised in the appeal. With respect, we are of a different stance. We are mindful of the provisions of Rule 111 of the Court which empowers the Court to allow amendment of documents on such terms as it thinks fit. But in our considered view, the Court may invoke such powers only when a preliminary objection has not been taken. This Court held - and we subscribe to that holding:- where a prefiminary objection to an appeal has been lodged, in accordance with Rule 100 (now Rule 107 (1)),. it is, in our view, improper for the appellant to seek to defeat the objection by acts desi'ned to remove its basis. If such practice were allowed, Rule 100 (now 107 (,)) would lose purpose and meaning and decency of proceedings would be in jeopardy .... " 7

(See The Minister for Labour and Youth Development (2) Shirika Ia Usafiri Dar es Salaam Vs Gaspar Swai and 67 Others, Civil Appeal No. 101 of 1998 (unreported)). The Court held further in Jaluma General Supplies Ltd Vs Stanbic Bank (T) Ltd, Civil Appeal No. 34 of 2010 that:- the expression at any time" in Rule 107(1) means at any time before objection is taken. Upon objection being taken, time is up (Emphasis pro vided) (See also Alhaj Talib Vs Kimen Mushi (1990) TLR 108). Therefore Mr. Mnyele's prayer to be allowed to make the said amendments appears to be aimed at preempting' the preliminary objection raised by Mr. Kesaria. We cannot allow that to happen. The Second issue is whether the said notice of appeal conforms to Rule 83 particularly sub-rules (3) and (6). Rule 83 (3) provides the essentials of a notice of appeal, its form and contents. In Atlantic 91

Electric Ltd Vs Morogoro. Region• Cooperative Union (1984) Ltd, Civil Application No. 26 of 1990, it was held thus:- "The provision that a notice of appeal shall be substantially in the Form D......... means that in drawing a notice of appeal the format given in Form D may be disregarded but not the substance of the information listed in it." (Emphasis provided) In the instant appeal it is apparent that the substance of the information is not even listed. There appears to be confusion as to whether this appeal is against the decision of Bukuku, J. (per notice of appeal) or that of Makaramba, 3. (per memorandum of appeal). As rightly submitted by Mr. Kesaria, if the appeal is against Bukuku, 3's decision, then / there is no memorandum of appeal, thus contravening the provisions of Rule 90 (1). Consequently, there is no appeal instituted. Should we hold that the appeal is against Makaramba, 3's decision, then Mr. Kesaria is right in submitting that there is no notice of appeal against that decision in which case, the matter before us is incompetent. This lack of clarity in the

appellant's purported appeal is, in our considered opinion, prejudicial to the respondents. All the above considered, we have no doubt that the purported appeal before us is incompetent. We see no reason to further consider the second point of the preliminary objection, namely, noncompliance with the provisions of section 5 (1) (c) of Cap 141. Accordingly, we uphold the preliminary objection and strike out the appeal with costs. DATED at DAR ES SALAAM, this 11th day of November, 2013. E. A. KILEO JUSTICE OF APPEAL S. 3. BWANA JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A M&. DEPUTY REGISTRAR COURT OF APPEAL A 10

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