IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
(CORAM: KILEO, J.A., BWANA J.A., And JUMA, J.A.)
CIVIL APPEAL NO. 87 OF 2012

1. JARED NYAKILA
2. NYAKILA TRANSPORT AND
GENERAL SUPPLIES LTD. ………………………….……………….. APPELLANTS
VERSUS
1. SHANTI SHAH
2. NELOFER ABDUL
3. NEW FISH FILLETTERS LTD. ……...…………………….……… RESPONDENTS

(Appeal from the Ruling of the High Court of Tanzania,

Commercial Division, at Dar es Salaam.)

(Makaramba, J.)

Dated the 15th day of Mach, 2011

in
Commercial Case No. 40 of 2008

……………..

RULING OF THE COURT

25th Oct, & 21st 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

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the Memorandum of Appeal “from the Ruling of the High Court of

Tanzania – Commercial Division at Dar es Salaam (Mr. Justice

Makaramba) dated 15th 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:-

1. There is no valid Notice of Appeal in respect of the appeal.

2. 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 13 th 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, J. of 15th March, 2011.

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 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 13 th 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.

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Makaramba’s ruling. There can be no appeal without a notice. Likewise,

the contents of the memorandum of appeal have nothing 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

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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

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Application No. 37 of 2007 – both unreported). In the latter case, the

Court held:-

“It seems that the 79 plaintiffs thought the same

procedure of representative suit applies 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…….” (Emphasis provided).

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.

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 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 preliminary 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

designed to remove its basis. If such practice were

allowed, Rule 100 (now 107 (i)) would lose purpose

and meaning and decency of proceedings would be

in jeopardy…..”

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(See The Minister for Labour and Youth Development (2) Shirika la

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 provided).

(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

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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, J. (per memorandum of appeal). As rightly

submitted by Mr. Kesaria, if the appeal is against Bukuku, J’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, J’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

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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. J. BWANA
JUSTICE OF APPEAL

I. H. JUMA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

Z.A MARUMA
DEPUTY REGISTRAR
COURT OF APPEAL

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