Tanzania Breweries Public Limited Company vs Universal Cargo Trans-Shipment Holding PLC (Civil Appeal No. 328 of 2023) [2025] TZCA 1290 (16 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANPAMBO. J.A.. MGONYA. 3.A. And FELESHI J.AO CIVIL APPEAL NO. 328 OF 2023 TANZANIA BREWERIES PUBLIC LIMITED COMPANY ................ APPELLANT VERSUS UNIVERSAL CARGO TRANS-SHIPMENT HOLPING P LC ........RESPONPENT (Appeal from the decision of the High Court of Tanzania, Commercial Division at Par es Salaam) (Maqoiqa, JO dated the 28th day of October 2022 in Commercial Case No. 8 of 2022 RULING OF THE COURT 5th November & 16th December, 2025 MWANPAMBO. J.A.: The appellant, Tanzania Breweries Public Limited Company lost to the respondent, Universal Cargo Trans-Shipment Holding PLC before the High Court (Commercial Division) in a suit arising from tenancy in Commercial Case No. 8 of 2022. Aggrieved, she has appealed against the decision of the trial court (Magoiga, J) made on 28 October, 2022 granting the respondent assortment of monetary reliefs. Prior to the hearing of the appeal, on 19 May, 2025, to be exact, the respondent's Advocates lodged in Court a notice of preliminary objection on two but related points of law subject of this ruling. The facts material to the ruling are common ground. After the delivery of the impugned decision on 28 October, 2022, the appellant lodged a notice of appeal on 1 November, 2022. In compliance with rule 90 (1) of Tanzania Court of Appeal Rules, 2009 (the Rules) on 31 October, 2022 the appellant's advocates delivered their letter to the Deputy Registrar of the High Court ("the Registrar") requesting to be supplied with certified copies of judgment, decree, exhibits and proceedings for appeal purposes. Having complied with rule 90 (1) of the Rules, the Registrar had, in terms of sub rule (5) to rule 90 of the Rules, a duty to ensure that the documents requested are prepared and availed to the appellant within 90 days of the request and the appellant was enjoined to take steps to collect the said documents within 14 days of the expiry of 90 days. Otherwise, the appellant is required by rule 90 (5) of the Rules to remind the Registrar of the supply of the documents he had requested. It is common cause that, neither did the Registrar respond to the appellant's advocates request nor make available to them the copies they had requested upon the expiry of 90 days. By their letter dated 2 2 February/ 2023 appearing at page 645 of the record of appeal, the appellant's advocates reminded the Registrar to supply the documents they had requested earlier. In response, on 28 February, 2023, the Registrar wrote to the appellant's advocates to notify them that the documents they had requested in their 31 October, 2022 letter were ready for collection. However, that letter was not delivered to neither made known to the addressee. Following a phone call from the court's registry, the appellant's advocates collected that letter on 17 April, 2023. It is equally common cause that, notwithstanding the Registrar's letter, some of the documents were not yet ready which prompted the appellant's advocates to request the Registrar on 25 April, 2023 to avail them with the missing documents essential for appeal purposes. In response, on 2 May 2023, the Registrar notified the appellant's advocates to collect copies of the missing documents. Upon collection of the said documents, the Registrar issued a certificate of delay on the same day in terms of rule 90 (1) of the Rules excluding 183 days from 31 October, 2022 to 2 May 2023 as necessary for preparation of the court documents. Subsequently, the appellant instituted her appeal on 2 June 2023; a period of 30 days from the date the advocates were availed with the remaining copies of documents they had requested. 3 The above notwithstanding, the respondent's learned advocate contends that the appeal is time barred on the following grounds: 1. That the certificate o f deiay issued by the Deputy Registrar o f the High Court is defective for excluding m ore days than what was required for the processing o f the required documents. 2. The appeai is incom petent for being file d out o f tim e prescribed by ruie 90 (1) o f the Court o f Appeai Rules ["the Rules"] because the appellant was not entitled to the tim e excluded by the certificate dated 2 May 2023. Messrs Senen Mponda and Gaspar Nyika, learned advocates represented the appellant and respondent respectively during the hearing on the preliminary objection. Mr. Nyika combined his arguments on the two points boiling down to the issue whether the appeal was instituted within the prescribed period notwithstanding the certificate of delay appearing at page 653 of the record of appeal. Mr. Nyika was adamant that the appeal was instituted beyond 60 days prescribed by rule 90 (1) of the Rules, and liable to be struck out. This is so because, according to Mr. Nyika, appellant cannot rely on the certificate of delay in which the Registrar excluded more than the days necessary for the preparation of the necessary documents for appeal 4 purposes that is, 45 days reckoned from 28 February, 2023 on which the Registrar is said to have notified the appellant's advocates of the readiness of the documents they had requested for vide letter dated 31 October, 2022. Reinforcing his argument, Mr. Nyika relied on the Court's decision in Airtel Tanzania Limited v. Mirage Lite Limited [2022] TZCCA 220 to argue that, notwithstanding the reminder letter of 2 February 2023, the appellant was duty bound to make physical follow ups with the court Registry for collection of the documents which were ready by 28 February 2023. According to him, had any physical follow ups been made, immediately after 28 February 2023, the appellant's advocates would have collected the documents then and there but allowed grass to grew under their feet until 45 days later. Mr. Nyika stressed that, in doing so, the appellant's advocates conducted themselves as if they were home after writing a reminder letter without any physical follow ups which turned out to be a mistaken and fatal belief. Under the circumstances, counsel contended that the Registrar's certificate of delay issued on 2 May 2023 is worthless as it includes 45 days which were not necessary for the preparation of the documents requested for appeal purpose. In the upshot, learned advocate urged that the institution of the appeal on 2 June 2025 was out of time rendering it incompetent and ought to be struck out. At the beginning of his address, Mr. Mponda urged the Court allow him to lodge an affidavit to explain the efforts his firm made to follow- up the documents with the Registrar. However, we took the view that he could address us without the need to file any affidavit. Resisting the preliminary objection, counsel stressed that, their letter dated 24 April 2023 appearing at page 649 of the record is very clear on the efforts his firm made in following up the documents with the court. Besides, Mr. Mponda argued that, although they collected the documents on 17 April 2023 the Registrar's letter dated 28 February 2023, such letter was neither delivered nor made known to them before 17 April 2023. On that basis, counsel argued, the appellant could not be blamed for inaction in collecting the documents. The learned advocate urged that, since the Registrar wrote to them on 2 May 2023 confirming incompleteness of the documents he had referred to in his previous letter, that letter was rendered redundant for the purpose of reckoning the time for preparation of the documents requisite for appeal purposes as reflected in the impugned certificate of delay. He thus implored the Court to find that the appeal was instituted timeously as the days excluded by the Registrar in the certificate of delay were necessary for the preparation of the documents necessary for the purpose of the appeal. 6 Mr. Nyika was insistent in his rebuttal that the certificate of delay was issued erroneously rendering the appeal incompetent for being time barred. With the foregoing, we now turn our attention to the discussion on the issue for our consideration and determination that is, whether the appeal is incompetent for being time barred. We must point out that there is no dispute that the appellant fully complied with rule 90 (5) of the Rules by taking steps to collect the requested documents upon expiry of 90 days and reminding the Registrar to do so vide letter dated 2 February 2023. Mr. Nyika's argument that since the Registrar wrote his letter to the appellant's advocates on 28 February, 2023, they ought to have collected such documents from that date had they made physical follow ups with the court registry sounds attractive but misconceived. We say so because, the mere indication of the date on the letter is not enough in the absence of evidence proving that it was delivered to the addressee on that date or immediately thereafter aside it having been known to the appellant's advocates. It is not disputed that, that letter was not made known to the appellant's advocates until 17 April 2023. It is thus hard to go along with Mr. Nyika's argument and conclude that the appellant was aware of it but took no steps to collect the documents they had 7 requested for appeal purposes. In the ordinary course of things, without such letter being delivered to the addresses let alone being known to them, it is hard to comprehend how could they have known about its existence. Remarkably, a similar argument was made in George T. Varghese & Another v. Fedha Fund & 2 Others, Civil Application No. 10 of 2008 (unreported) and a single Justice of the Court rejected it in the following words: "The issue is whether the appeal is tim e barred. Not , ■ in m y considered view, principally because the period o f lim itation started running when the respondent discovered the registrar's letter in the record o f the High Court on the 19th November, 2007. There is no p ro of that the letter had been served on the respondents before the I 9 h November, 2007. Nor can the respondents be victim ized for inefficiency in the office o f the D istrict Registrar whose sta ff failed to serve the le tte r dated the 3rd October, 2007 on the respondents and instead le ft it lying in the file u n til the respondent's counsel [accidentally] came across the same while checking on the status o f execution." It is worth noting that the Court took the same path in its subsequent decision in Power One Africa Limited v. Zanzibar 8 Telecom Limited [2021] TZCA 576. We need not say anything more on this except to stress that, it seems to us that, the conclusion we reached in that decision was made without reference to our previous decisions on the date on which the appellant is taken to have been notified that the documents requested for appeal purposes are ready for collection. Had the Court's attention been brought to the above decisions, in the case referred to by Mr. Nyika, we have no doubt that it would not have taken the view it took in that regard. In any event, as submitted by Mr. Mponda, despite the fact that the Registrar's letter dated 28 February, 2023 shows that the documents were ready for collection, it turned out that was not the case as evident by his letter dated 2 May 2023. In our view, whether the appellant's advocates had knowledge of the Registrar's letter on 28 February 2023 or 17 April 2023 when they actually became aware of the letter and collected some of the documents, it was not until 2 May 2023 when the Registrar supplied them with complete set of the documents. There can be no doubt that the institution of the appeal 30 days later was well within the time prescribed under rule 90 (1) of the Rules after excluding the period necessary for the preparation and supply of the requisite documents. Be it as it may, Mr. Nyika's argument premised on the Court's decision in Airtel Tanzania Ltd case (supra) is but, misplaced primarily because the circumstances of this case are not similar. It will, we think, be clear to Mr. Nyika that in that decision, the Court disregarded the certificate of delay because the letter referred by the Registrar was not incorporated in the record of appeal which is not the case in the current appeal. Besides, as we said in State Oil Tanzania Limited v. Equity Bank Tanzania Limited [2022] TZCA 712, rule 90 (5) of the Rules added another essential step in the appeal process thereby doing away with home and dry rule where the Registrar has duty to ensure that the documents requested for appeal purposes are ready and supplied to the appellant within 90 days. Where the Registrar fails to do so as it were in this appeal, the appellant is enjoined to collect such documents within 14 days of the expiry of 90 days. There is no dispute in this appeal that the appellant did exactly that and reminded the Registrar by the letter dated 2 February 2023. In our view, having complied with rule 90 (5) of the Rules, it was the duty of the Registrar to notify the appellant's advocates that the documents were ready for collection and supply them to the appellant. As alluded to earlier on, regardless of letter dated 28 February 2023, the Registrar only supplied part of the requisite documents on 17 April 2023 and the rest on 2 May 2023. That was not the case in Airtel Tanzania Ltd case. In the event, we find no merit in the preliminary objection and dismiss it. Having dismissed the objection, we direct that the appeal be fixed for hearing on merit on a date to be fixed by the Registrar. DATED at DODOMA this 15th day of December, 2025 L. 1 S. MWANDAMBO JUSTICE OF APPEAL L E MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Ruling delivered this 16th day of December, 2025 via Virtual Court in the presence of Mr. Lusiu Peter, learned counsel for the Appellant, Mr. Deogratius Tesha, learned counsel for the Respondent and Mr. John Banene, Court Clerk is heret l i