Diamond Motors Limited vs North Mara Gold Mine Limited (Civil Application No. 0018 of 2025) [2026] TZCA 427 (21 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 0018 OF 2025 DIAMOND MOTORS LIMITED .................................................... APPLICANT VERSUS NORTH MARA GOLD MINE LIMITED .................. ................. RESPONDENT (Application for stay of proceedings of the High Court of Tanzania in Miscellaneous a Commercial Cause No. 30339 of 2025 ) fGonzi, J.l dated the 17th day of November, 2025 in Miscellaneous Commercial Application. No. 15726 RULING 14th & 21st April, 2026 MAIGE. J.A.: Under a certificate of urgency and pursuant to rule 4(1) and (2)(a), (b), and (c) of the Tanzania Court of Appeal Rules, 2009, the applicant moves the Court for an order staying the proceedings in the High Court (Commercial Division), Miscellaneous Commercial Cause No. 30339 of 2025, which seeks to set aside an arbitral award rendered in the applicant's favor. The said proceedings were instituted on the strength of a High Court order granting the respondent an extension of time, which order is currently the subject of an appeal before this Court. The application is supported by the affidavit of Franken Lubeleje, the applicant's principal officer, and is resisted by a counter-affidavit deposed by Melkiory Ngindo on behalf of the respondent. Additionally, the respondent has raised a preliminary objection, contending that this Court lacks the requisite jurisdiction to entertain the motion. The factual background of this application may be summarized as follows. In 2008, the parties entered into an agreement for drilling services at the respondent's North Mara Mine, which included an arbitration clause for the resolution of any contractual disputes. A subsequent dispute led the applicant to refer the matter to an arbitral tribunal tribunal chaired by Hon. Judge Robert Vincent Makaramba (Rtd), alongside Mr. Juvenalis Ngowi and Ms. Madeline Kimei, rendered a final award in favor of the applicant for USD 51,676,078 plus 7% simple interest. On 24th October 2025, the applicant petitioned the High Court for the registration and enforcement of the award. Conversely, on 17th November 2025, the respondent successfully obtained an extension of time to petition for the award's setting aside and soon thereafter, lodged the intended petition. Aggrieved by that order granting extension of time, the applicant lodged a notice of appeal on 4th December 2025, while the respondent's petition to set aside the award remains pending before the High Court. At the hearing, the applicant was represented by Mr. Augustine Shio, assisted by Mr. Norbert Mlwale, both learned advocates, while Mr. Gerald Nangi, also learned advocate, appeared for the Respondent. In view of the matter's urgency and noting that the merits could not be addressed without first resolving the challenge to the Court's jurisdiction, I directed the parties to submit on both the preliminary objection and the factual substance of the application. This approach was intended to ensure that, should the objection be sustained, the matter would be disposed of immediately, or alternatively, the Court could proceed to a determination on the merits. I am grateful to all counsel for their comprehensive submissions, which have been instrumental in the preparation of this ruling. However, having considered the parties' submissions „and conducted preliminary research, the urgency of this matter and current time constraints necessitate that I determine only the preliminary issue at this stage. The Respondent's primary contention is that, as the subject matter falls within the exclusive domain of; the High Court, this Court is incompetent to entertain the application. It was argued that the Court of Appeal, as a creature of statute, derives its mandate strictly from the law, which limits its authority to appellate, revisional, and review jurisdiction under Section 6 of the Appellate Jurisdiction Act. On this basis, the Respondent maintains that the Court cannot arrogate to itself original jurisdiction over matters where such powers are statutorily vested in the High Court, though counsel notably omitted any specific legal citation confirming such exclusive conferment. In the first alternative, counsel submitted that since a similar application had already been lodged and refused by the trial court, the present motion constitutes a second bite and is, in essence, a disguised appeal. In the further alternative, it was argued that should the Court possess such jurisdiction, it is not exercisable by a single Justice but must be heard by the full Court. Consequently, the Respondent moved for an adjournment to allow the application to be referred to a duly constituted bench In reply, counsel for the applicant contended that the motion falls squarely within the Court's jurisdiction, as the proceedings sought to be stayed would, if allowed to continue, render the intended appeal nugatory. It was argued that the pending High Court application arises directly from the very decision the applicant is currently appealing. He, submitted, therefore that, should the appeal succeed, the High Court's order granting the extension of time would be invalidated, thereby rendering any intervening proceedings a nullity for being time-barred. Counsel further emphasized that refusing the stay would strip the application of its purpose, as the High Court might set aside the arbitral award before the appeaI is even determined. Rejecting the Respondent's assertion that a similar remedy exists at the High Court, counsel maintained that once a notice of appeal is lodged, the High Court is divested of jurisdiction to handle the matter. On the question of the Court's composition, it was submitted that a single Justice possesses the requisite mandate to hear the application, provided it does not fall within the specific exclusions of rule 60 (2) of the Rules. Given the absence of an express provision for such applications, counsel urged the Court to invoke its inherent powers under rule 4(2) of the Rules to grant the stay in the interest of justice. In support of this position, he relied on the decision in Yahya Khamis v. Hamida Haji Iddi and Others (Civil Appeal No. 225 of 2018), which affirmed the Court's authority to stay proceedings to preserve the integrity of the appellate process. Counsel requested that the status quo be preserved if the ruling cannot be issued today. Respondent's counsel countered in a brief rejoinder, reiterating their preliminary objection and asserting that an order maintaining the status quo is improper until the Court establishes its jurisdiction. Having considered the competing arguments and the law governing the High Court's jurisdiction over applications, I find the preliminary objection to be without merit. In my view, a stay of proceedings is an interlocutory matter rather than a final order. It thus does not fall under the Court's substantive jurisdiction as defined by the Constitution or the Appellate Jurisdiction Act which, as the respondent correctly noted, is limited to appellate, revisional, and review functions. Regarding the definition of a stay of proceedings, this Court in Yahya Khamis v. Hamida Haji Iddi and Others (supra) adopted the following statement of the Supreme Court of Malawi in Mulli Brother Ltd v. Malawi Savings Bank Ltd (48 of 2014) [2015] MWSC 467: "As we understand it, a stay is the act o f tem porariiy stopping a ju d icial proceeding through the order o f a court. It is a suspension o f a case or a suspension o f a particular proceeding within a case. A judge may grant a stay on the motion o f a party to the case or issue a stay sua sponte, without the request o f a party. Courts w ill grant a stay in a case where it is necessary to secure the rights o f a party." In the aforementioned Malawian decision, the Supreme Court discussed and this Court has judicially recognized the circumstances under which a stay may be granted. Of particular relevance to this matter is the observation that: "One common reason is that another action is under way that may affect the case or the rights o f the parties in the case..." In my view, because the question of whether the pending proceeding was timely is currently sub judice before this Court on appeal, and since the outcome of those proceedings directly impacts the fate of said appeal, the present application is clearly ancillary to the pending appeal and, therefore, falls squarely within this Court's jurisdiction. While the Rules lack an express provision for this specific scenario, I concur with the applicant's counsel that such an order may be granted in the interest of justice under rule 4(2) of the Rules. Contrary to the arguments for the respondent, I hold that this Court possesses the requisite jurisdiction to entertain this application as an interlocutory matter. Regarding whether a single Justice may exercise this jurisdiction, both counsel rightly agree that the primary consideration is rule 60, which provides as follows: "60(1) Every application other than an appiication included in sub rule (2), shall be heard by a single Justice save that application may be adjourned by the Justice for determ ination by the Court. (2) The provision o f sub-rule (1) sh all not apply to- (a) an application for leave to appeal; (b) an application to strike out a notice o f appeal or an appeal; or (c) an application made as ancillary to an application under paragraph (a) or (b) or made inform ally in the course o f hearing." Based on a careful reading of the provisions, the scope and boundaries of a Single Justice's jurisdiction are clearly defined. Rule 60 expressly provide an exhaustive list of the specific applications other than the substantive applications under rules 64 and 65 unto which the jurisdiction of a Single Justice is excluded. These include, specifically, applications for leave to appeal, applications to strike out a notice of appeal, and any ancillary applications related to them and an informal application made in the course of hearing. . The application currently before this Court, however, does not fall into these categories. It is not an application for leave to appeal, nor is it a request to strike out a notice of appeal. Furthermore, it cannot be classified as an ancillary motion attached to those specific procedures, such as a request for an extension of time to lodge a notice of appeal or an application for leave to appeal. Therefore, because this matter does not fall within the specific categories where a Single Justice’s authority is excluded,I conclude that the jurisdiction remains proper. On that account, I dismiss the second alternative objection. The third alternative complaint suggests that this application is a disguised appeal, predicated on the assertion that a similar request was previously made and denied at the High Court level. However, upon a meticulous examination of the affidavit in support and the affidavit in reply, I find no evidence that such an application was ever formafly pieaded, nor is there any attached decision from the High Court regarding a stay order. From the submissions, it appears that only an informal oral request was made, which the High Court ultimately declined to determine. In the absence of a formal application and a subsequent judicial refusal, the respondent's argument lacks the necessary legal foundation. This contention is, therefore, dismissed. Furthermore, I cannot subscribe to the respondent's view that the High Court maintains concurrent jurisdiction to entertain this matter once a notice of appeal has been lodged. This position was stated, in among others, the case of Matsushita Electric Co. Ltd v. Charles George t/a G.G. Travers, Civil Application No. 71 of 2001 where it was observed: " Once a notice o f appeal is filed under rule 76 then the Court is seized o f the m atter in exclusion o f the High Court except from applications specifically provided for, such as, leave to appeal and on provision o f a certificate o f law ." In light of the foregoing, the preliminary objection is hereby overruled. Given that the application at the High Court is scheduled for final necessary orders on April 24, 2026,1 finds it imperative to protect the integrity of the subject matter and ensure that the ultimate decision of this Court is not rendered nugatory. Therefore, to prevent the irreversible alteration of the status quo and to serve the ends of justice, I hereby issue an interim order staying the proceedings at the High Court pending the determination of this application on its merits. This intervention is necessary because, without it, the High Court could proceed to a conclusion that would frustrate the very relief the Applicant seeks here. Furthermore, having identified critical issues during the drafting of this ruling, I hereby direct the parties to appear before me either physically or via video link on April 28, 2026 at 2:00 PM. This session will be dedicated to clarifying the specific conditions for the stay of proceedings and resolving other ancillary matters essential to the fair disposal of this application. DATED at DODOMA this 20thday of April, 2026. Ruling delivered this 21st day of April, 2026 in the presence of Mr. Norbert Mlwale, learned Counsel for the Applicant and Mr. Gerald Nangi Counsel for the Respondent, Mr. Shabani Kanyai Court Clerk; is hereby certified as a true copy of the original. I. J. MAIGE JUSTICE OF APPEAL li