Court rules in favour of TIRA
DAR ES SALAAM: THE Mwananchi Insurance Company Limited have, once again, lost their case for demand of 150bn/- payments from the Tanzania Insurance Regulatory Authority (TIRA) for allegedly loss of business, among others.
This follows the decision of the Court of Appeal to reject the appeal lodged by the insurance firm, the appellant, to challenge the dismissal of their commercial case involving the payments in question.
Justices Shaban Lila, Mary Levira and Paul Kihwelo ruled in favour of TIRA, the respondent, after holding that the appeal was incompetent for missing essential documents relevant for proper determination of the matter.
“……….as the record of appeal in respect of Civil Appeal No. 290 of 2020 is still incomplete, we find and hold that, the appeal before us is incompetent. Consequently, we strike it out with costs,” the justices declared.
They noted that the parties were not at issue that on May 9, 2022, the appellant was granted leave by the Court in terms of rule 96 (7) of the Court of Appeal Rules to cure the defect in the incompetent appeal by lodging a supplementary record.
The justices pointed out that that was done after invoking the overriding objective principles purposely in order to put life to the otherwise an incompetent appeal suffering from the defect of an incomplete record.
Surprisingly, and for an obscure cause, they noted, on June 21, 2022, the appellant lodged the supplementary record of appeal which, however, was found to be incomplete when the matter came up for hearing on June 5, 2023.
“In this regard, we do not, with respect, agree with the counsel for the appellant that all the essential documents relevant for proper determination of the appeal in terms of rule 96 (1) of the Rules, are found in the supplementary record lodged by the appellant,” the justices said.
They observed clearly that two exhibits are missing in the supplementary record of appeal and are very essential for the proper determination of the appeal whose grounds faults the trial High Court Judge for the failure to analyse the evidence of the appellant.
The counsel for the appellant sought to take refuge on the overriding objective principle, notably dispensation of substantive justice. In their view, however, the justices pointed out that it would be absurd to find purchase in the counsel’s argument.
They reasoned that since the appellant was granted leave to lodge supplementary record of appeal in terms of rule 96 (7) of the Rules, the Court is not permitted in terms of rule 96 (8) of the Rules, to entertain further applications for lodging a supplementary record.
“We are settled in our mind, therefore, that, the appellant cannot be entitled to take refuge on the overriding objective principle of which he had already benefitted….
“Time without number we have emphasised that, a party who has already benefited from the provisions of rule 96 (7) of the Rules, is precluded under rule 96 (8) of the Rules, from making further applications to cure the defect through lodging supplementary record,” the justices said.
The justices failed to see how can the Court invoke the overriding objective in total disregard of the mandatory provisions of the law to follow the counsel for the appellant’s reasoning, that they should proceed with hearing of the appeal by referring to the original court’s record.
They referred to some decided cases, including Njake Enterprises Limited v. Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 where the Court emphasised that the overriding objective principle cannot be invoked blindly in total disregard of the rules of procedure couched in mandatory terms.
Before the High Court’s Commercial Division, the appellant was claiming 55, 235, 848,036/- as loss of revenue occasioned by the respondent and 100bn/-, being damages for continuing debilitating effects of the respondent’s acts and omission affecting their business.
