Global Distributors (T) Ltd and Others vs CRDB Bank Ltd (Civil Appeal No. 87 of 2001) [2004] TZCA 154 (16 December 2004)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A.; MROSO, J.A.; And NSEKELA, J. A.) CIVIL APPEAL NO 87 OF 2001 BETWEEN GLOBAL DISTRIBUTORS (T) LTD. SADIQ SULEIMAN KUMBATA BATULI KUMBATA AND· CRDB BANK LTD. 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT RESPONDENT (Appeal against the judgment of the Commercial Division of High Court of Tanzania at Dar es Salaam) (Dr. Bwana, J.) dated 21 st September, 2001 1n Commercial Case No. 15 of 2001 RULING RAMADHANI, J. A.: When this appeal came up for hearing, Mrs. Kato, learned advocate for the respondent, CRDB Bank Ltd., raised· a preliminary objection and asked that the notice· of appeal to be struck out on two grounds: Failure to comply with Rule 10 and aiso Rule 89 of the Tanzania Court of Appeal Rules, 1979. Mrs. Kato pointed out that Rule 10 (5) requires that every tenth line on every page of the record of appeal be indicated on the right side of the sheet. This, she said, has not been done in the present case. Secondly, the learned counsel submitted that Rule 89 (1) (f) , has ~lso been offended in that certain documents produced in the·

(,' 2 -lower -court have been omitted from the record of appeal. She referred us to NBC v. Methusela Magongo [1996] T.L.R. 394. Mr. Koka, learned counsel for the appellants, conceded the two omissions and said that they were due to some oversight. He prayed that he be given time to file a supplementary record of appeal so as to meet the interests of justice under Rule 3 (1). The defect under Rule 10 (5), that is, the failure to indicate every tenth line, was dealt with by this Court in The Presidential Parastatal Sector Reform Commission v. The Impala Hotel Ltd. Civil Appeal No. 100 of 2003, (unreported). In that appeal the Court referred to two earlier decisions of this Court: First, Hamisi Ally Ruhondo & 115

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Others v. Tanzania-Zambia Railway Authority; Civil Appeal No. 1 of 1986, (unreported) where the Court, suo moto/ said: ... we wish to remark that we were inconvenienced by the record furnished to us and which was duly certified by the appellants' advocate. Between page 59 and 60 of the typed record a whole page of the original record is left out ... Then at page 62 nearly ten pages of the original record are omitted ... We wish to urge Prof. Shivji, the learned advocate for the appellants to exercise greater care when certifying records and we would respectfully draw his attention to the Rules of the Court of Appeal regarding this matter. The second decision that was referred to was Leonsi Silayo Ngalai v. Hon. Justine Alfred Sakalana & Another, Civil Appeal No. 38 of 1996

v' \ .., .) (unreported) yvh_ere a preliminary objection was raised but later withdrawn and the Court said: ... that insufficiency or incompleteness of the record of appeal is not a ground for incompetency of an appeal, because such a defect is rectifiable by an appellant at any stage of the proceedings as provided under sub--rule 3 of rule 92 of the Tanzania Court of Appeal Rules ... This Court conducted in The Impala Hotel Ltd. as follows: The non-compliance with the Court Rules in the preparation of the record of appeal in Ruhondo's case and Ngalai's case supra were far graver than what we have at hand! In line with these decisions, we find that this ground of complaint is devoid of merit. The Court will undoubtedly be inconvenienced in reading pages of the record of appeal whose tenth lines are not indicated, but this is not a ground for rendering the appeal being incompetent. We are of the same view as our learned brethren in The Impala Hotel Ltd., in which one of us was involved, and we find the objection to be devoid of merit and we dismiss it. As for the exclusion of certain documents that had been produced in the lower court from the record of appeal, we are of the decided opinion that that should not have been a matter of preliminary objection. We would have held differently if the documents were among those specifically enumerated in Rule 89 (1) as was the case in N. B. C. v~ Methusela Magonqo. In that appeal a copy of an order

f' 4 complained against was missing from the record of appeal while such a copy is categorically required to be produced by Rule 89 (1) (h). In this case Mrs. Kato claimed that Rule 89 (1) (f) has been violated. That paragraph requires the record of appeal to contain: . the affidavits read and all documents put in evidence at the hearing, or, if such documents are not in the English language, their certified translations; However, the proviso to sub-rule (1) says as follows: save that the copies referred to in paragraphs (d), (e) and (f) shall exclude copies of any documents or any of their parts that are not relevant to the matters in controversy on the appeal. Thus some documents under paragraph (f) may be omitted if an

• • -· appellant is-bf tne· opinion that they are-not-relevant-for his appeal. Admittedly, Mrs. Kato argued that the documents omitted have been referred to in the memorandum of appeal. If it is so, then she should ( have waited to use the omission of those documents as her defence to those grounds of appeal that refer to the omitted documents. Therefore, we dismiss the preliminary objection and we order that a fresh record of appeal be instituted in accordance with the Rules within thirty days (30) from the date of delivery of this Ruling to the parties. We make no orders as to costs. DATED at DAR ES SALAAM this 16 th day of December, 2004.

\ i l " I ! I , I ·. l \ ) s A. S. L. RAMADHANI JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of~ riginal. I ' ( S. M. RU NYIKA) DEPUTY REGISTRAR