B.P. Tanzania Limited vs Sanyo Services Station Limited (Civil Reference No. 16 of 2022) [2023] TZCA 17619 (13 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A.. MASHAKA. 3.A.. And MGEYEKWA, J.A.^ l CIVIL REFERENCE NO. 16 OF 2022 B.P TANZANIA LIMITED (Now PUMA ENERGY TANZANIA LIMITED ............ ..................... ....... ............ APPLICANT VERSUS SANYOU SERVICES STATION LIMITED .................. ....... ...... RESPONDENT (Application for Reference from the Ruling and Order of the Court of Appeal of Tanzania at Dar es Salaam) (Sehel. J.A) dated the 17th November, 2022 in Civil Application No. 80/01 of 2021 RULING OF THE COURT 15th August & 13th September, 2023 MGEYEKWA. 3.A. This is an application for Reference against the Ruling of a single Justice, dated 17th November, 2022 in Civil Application No. 80/01 of 2021 in which she declined to grant the applicant's application for extension of time within which he could lodge a memorandum and record of appeal against the decision of the High Court of Tanzania dated 6th May, 2005 in Civil Appeal No. 329 of 2002. Aggrieved, the applicant, through a notice of motion dated 24th November, 2022 initiated this application in terms of Rule 62 (1) (b) of i

the Court of Appeal Rules, 2009 as amended (the Rules), seeking for the said decision of the single Justice to be reversed. Before we proceed any further, we find it apposite to narrate the essential facts of the matter at the outset. They are as follows: Sanyou Services Station Limited, the respondent was the appellant at the High Court of Tanzania at Dar es Salaam vide Civil Appeal No. 329 of 2002 against B.P Tanzania Limited (now Puma Energy Tanzania Limited) claiming for the return of the 107 Liquid Petroleum Gas (LPG) cylinders, payment of TZS. 781,110,000.00 as loss of profit, damages, interests, and costs of the suit. On 6th May, 2005, the High Court delivered a judgment in favour of the respondent and awarded it TZS. 500,000,000.00 as loss suffered for non use of cylinders, TZS. 150,000,000.00 as general damages, interest at 20% per annum from the date of filing the suit to the date of judgment and interest on decretal sum at 7% per annum from the date of judgment till payment in full. Aggrieved, the applicant lodged a notice of appeal and subsequently filed Civil Appeal No. 74 of 2009. Before the hearing of the appeal on merit, the learned counsel for the respondent raised a preliminary objection that the record of appeal was invalid because the judgment and decree bear

different dates. The Court sustained the objection and struck out the appeal with costs. The applicant went back to the High Court and filed an application for the rectification of the judgment and the decree. On 3r d July, 2012, Shangwa, J corrected the judgment and on 6th July, 2012 the applicant lodged a notice of appeal. On 21s t August, 2012, the applicant through the legal services of Mpoki & Associates Advocates wrote a letter requesting to be supplied with the proper decree for the purpose of appeal. On 11th February, 2021, the Deputy Registrar, notified the applicant that the requested documents were ready for collection. The said letter was received on 15th February, 2021 by IMMMA Advocates on behalf of the applicant. A certificate of delay dated 11th February, 2021 was also issued to the applicant excluding the period from 21s t August, 2012 to 11th February, 2021. Upon receipt of the said certificate of delay, the applicant deposed that, it sought for a rectification to the letter dated 6th July, 2012 and not the reminder letter dated 21s t August, 2012. However, it was not possible to rectify as the said letter could not be traced from the court record hence the applicant was forced to lodge Civil Application No. 80/01 of 2021 which was premised on four grounds for extension of time as follows:-

i) That, the applicant could not file the memorandum o f appeal sixty (60) days from the date when the notice of appeal was filed because the proceedings, judgment, decree, and exhibits which are documents necessary to be included in the notice of appeal were yet to be provided to the applicant. ii) That, upon the documents being provided on 15th February, 2021 the applicant could not proceed to lodge the appeal because the letter dated &h July, 2012 which would have been the basis of a certificate of delay to be issued by the High Court is missing from the court's record and attempts to locate the same in court proved futile. Hi) That, the original letter could also not be produced by us because on 2&h August, 2017 IMMMA Advocates' Dar office was bombed and some case files which included the file involving this case were destroyed. He attempted to obtain a copy of the letter if any existed from the applicant's former counsel Mpoki & Company Advocates and the respondent counsel Mark and Associates were also not fruitful. iv) That, in the absence of the letter dated &h July, 2012 the applicant could not benefit from the exclusion of time provided in the proviso to Rule 90 (1) of the Tanzania Court ofAppeal Rules, 2009, as amended.

There are mainly three reasons cited by the applicant's counsel in his submission before the single Justice; first, there was a delay in supplying him with the documents necessary for lodging an appeal; secondly, despite the document being availed to him on 15th February, 2021, the applicant could not lodge the appeal because the letter dated 6th July, 2012 went missing; and thirdly, IMMMA Advocates' Dar Office was bombed and some case files which included the file involving this case were destroyed. In response to the foregoing, the learned counsel for the respondent contended that the basis of the request for the extension of time is the letter dated 6th July, 2012 whereas there is no indication that such a letter was written within the thirty (30) days and served upon the respondent in terms of rule 90, (1) and (3) of the Rules. The respondent further contended that there was no any affidavital evidence from the court's registry officer to substantiate the applicant's claim that the letter dated 6th July, 2012 is untraceable in the court record. He argued further that the contents of the letter dated 21s t August, 2012 do not suggest that it was a reminder letter. For those reasons, it was argued that, the applicant failed to demonstrate any good cause for the delay. The single Justice agreed with the respondents' arguments that, indeed the applicant had failed to assign any good cause worthy of being determined by the Court in the notice of motion.

Having examined the notice of motion and affidavits on record in the light of the contending submissions of the parties, the learned single Justice was satisfied that, the application had no merit, hence, dismissed it with costs. This application at hand is therefore predicated upon the above-stated decision of the Court. According to the Notice of Motion, the application is grounded on the following seven grounds of reference as follows:- i) The Honourable single Justice of Appeal misdirected herself by concluding that the letter dated &h July, 2012 was a key document for the purposes of the application while the fact that the letter was missing was not a ground upon which the Applicant was seeking extension of time. The letter was mentioned to show the Court that the applicant could not benefit from the automatic exclusion of time provided by Rule 90 (1) of the Appeal Rules, hence the application for extension for extension o f time to file the memorandum and record of appeal. ii) The Honourable single Justice of Appeal misdirected herself by finding that it was necessary to obtain affidavits to show that the letter dated &h July, 2012 was missing while the Applicant was not relying on the letter as a ground for seeking the extension o f time. 6

iii) The Honourable single Justice of Appeal misdirected herself by concluding that the Applicant was seeking to benefit from the exception for computation of time to lodge an appeal provided by Rule 90 (1) of the Court o fAppeal Rules. iv) The Honourable Justice of Appeal failed to consider that the Applicant was prevented from filing the memorandum and record of appeal within 60 days because the Applicant was not able to obtain the complete documents necessary for filing the appeal within 60 days. v) The Honourable single Justice of Appeal erred in law by concluding that in an application for extension of time to file a memorandum and record of appeal, the Applicant cannot rely on the period used to wait for the supply o f documents necessary for filing an appeal. vi) The Honourable single Justice o f Appeal misdirected herself by concluding that the Applicant failed to show good cause to warrant the grant of extension of time to file memorandum and record of appeal; and; vii) The Honourable single Justice of Appeal misdirected herself by concluding that the Applicant failed to account for delay merely because there was no proof of a letter dated &h July, 2012 while the Applicant was not relying on the letter as a ground for seeking extension o f time.

At the hearing of the application before us, the applicant was represented by Mr. Nyika, learned counsel, and the respondent was represented by Mr. Ajay Somani, Managing Director of the respondent. Written submission in support of the reference was duly filed by Mr. Nyika whereas there was none from the respondent, however, he submitted orally. When Mr. Nyika was given the floor to elaborate on the application, he combined and argued all the grounds together and submitted that the issues in the seven grounds of reference arise from matters which were raised before the single Justice. He submitted that, the reason for failing to lodge the appeal within the prescribed time is that, there was a delay in obtaining a copy of a proper drawn decree as the same was made available for collection on 15th February, 2021. Thus, the applicant could not have filed the appeal before that date since the said document was required to be included in the record of appeal. Mr. Nyika asserted that the single Justice, in her decision, considered irrelevant factors and misapplied the law on the grant of extension of time. He faulted the single Justice for relying on the letter dated 6th July, 2012 as a key document that would have assisted the Court in authenticating that the applicant had written such letter to the High Court within the prescribed

period under Rule 90 (1) of the Rules for the applicant to benefit from the exclusion provided under the said rule. To buttress his submission, he referred the Court to page 12 of the impugned ruling. The learned counsel's further contention is that the single Justice dwelt on the applicant's inability to enjoy the automatic exclusion of the time as the basis of the delay in filing the appeal, which is not the case. It was his contention that, the single Justice misdirected herself to find that the missing letter dated 6th July, 2012 was a key document while it was not a ground for extension of time. He elaborated that, the said missing letter was raised to show that the applicant could not benefit from the automatic exclusion. Mr. Nyika implored the Court to consider the letter dated 21s t August, 2012 where the applicant requested from the High Court for a proper decree which was required to be issued within sixty (60) days period in order to lodge the appeal. However, the requested decree was not provided to the applicant until 15th February, 2021, and the Deputy Registrar relied on the letter dated 21s t August, 2012 as a reference for calling them to collect the said documents. As regards the issue of obtaining affidavits from Mpoki & Company Advocates firm, Mr. Nyika submitted that the question of the affidavits from 9

the High Court and Mpoki & Company Advocates and Mark and Associates does not arise because the same was linked with attempts to trace the letter dated 6th July 2012 which proved futile. He was certain that, the applicant had good reasons for extension of time but the single Justice did not determine the days after the applicant had obtained the necessary and proper documents. On the strength of the above submission, Mr. Nyika beckoned upon the Court to allow the application. In response, the respondent was very brief, he defended the decision of the single Justice as sound and reasoned. He contended that the letter dated 6th July, 2012 was the basis for the prayer for extension of time and the letter dated 21s t August, 2012 was not a reminder letter. He further contended that, it was hard to believe the applicant's averment that only one document went missing after the IMMMA Advocates' building was bombed. Ending, the respondent decided to leave it to the Court to decide the fate of this matter. We have examined the records and carefully considered the learned counsel for the applicant's written and oral submissions for and against the application. Along with the parties' submissions, we shall consider the issue 10

whether the applicant in Civil Application No. 80/01 of 2021 managed to give good cause warranting extension of time in terms of Rule 10 of the Rules. In dealing with this issue, we find it appropriate to state that the exercise of discretion by a single Justice under rule 10 of the Rules can rarely be interfered with. The Court can only interfere with such exercise where there is a good cause such as the single Justice has taken into account irrelevant factors and matters. The guiding principles when determining whether or not to interfere with the decision of the single Justice was clearly articulated in the case of G.A.B Swale v. Tanzania Zambia Railways Authority, Civil Reference No.05 of 2011 (unreported). The Court having revisited its previous decisions on reference, summarized the principles upon which the Court can interfere with a decision of a single Justice or not in terms of Rule 62 (1) (b) of the Rules and restated as follows:- "a) on a reference , the full Court looks at the facts and submissions the basis o f which the single Justice made the decision, b) No new facts or evidence can be given by any party without prior leave o f the Court; and c) The single Justice discretion is wide, unfettered and flexible; it can only be interfered with if there is a misinterpretation o f the law." i i

In the application at hand, the applicant has assailed the single Justice decision in that, she wrongly observed that the letter dated 6th July, 2012 was a key document and it was necessary for the applicant to obtain affidavits from the High Court and Mpoki & Company Advocates to corroborate the applicant's supporting affidavit. From the affidavits, written submission, and oral presentation, there are three issues that shall guide us on how we determine this application. First, is whether the letter dated 6th July, 2012 was a ground for extension of time. From the outset, we find and hold that the letter dated 6th July 2012 was not a ground for extension of time. We agree with Mr. Nyika that the letter dated 6th July, 2012 was intended to show that, the applicant could not benefit from the automatic exclusion. However, since the same was untraceable, the applicant decided not to benefit from the automatic exclusion of time. Therefore, it is our considered view that since the applicant did not rely on the said letter that means he did not benefit from the exclusion period provided under the proviso to rule 90 of the Rules. Therefore, the applicant chose to account for all the days of delay. Second, is whether the applicant was required to obtain affidavits from the High Court and Mpoki and Company Advocates. We have, with respect, 12

noted that the single Justice misdirected herself by stating that it was necessary for the applicant to obtain affidavits from the court and also from Mpoki and Company Advocates to support the applicant's affidavit. In our view, the applicant did not require additional affidavits from the court and from Mpoki Company Advocates because they would be associated with the letter dated 6th July 2012, which the applicant did not rely upon in accounting for the days of delay because he could not benefit from the exclusion stipulated under rule 90 (1) of the Rules. The last issue is whether the applicant accounted for all the days of delay. Upon our reading of the single Justice's decision, specifically at pages 6 and 7 of the record, we find and hold that, the delay is satisfactorily explained away. The applicant accounted for each day of delay starting from 15th February, 2021 when he received a letter from the Deputy Registrar, High Court notifying that the requested documents were ready for collection to 11th February, 2021 when the certificate of delay was issued. The certificate of delay excluded the period in computing time from filing an appeal to the Court, that is, 21s t August 2012 to 11th February, 2021. Next for our consideration is whether the applicant accounted for the days of delay from 21s t August, 2012 when the reminder letter was issued 13

to 16th March 2021 when he lodged Civil Application No. 80/01 of 2021 before the Court. In accounting for the days of delay, the applicant is required to explain satisfactorily to the Court his reasons for delay from 21s t August, 2012 to the date when he lodged Civil Application No. 80/01 of 2021 before the Court. From the record, we find that, from the date when time to lodge an appeal expired on 10th September, 2012 to 15th February 2021, the applicant was waiting to be supplied with the proper documents to file the memorandum of appeal. The period from 15th February 2021 to 15th March 2021, the applicant's affidavit shows, was spent by the applicant to locate the letter dated 6th July 2012, and the applicant filed Civil Application No. 80/01 of 2021 on 16th March 2021. As rightly stated by Mr. Nyika, the memorandum of appeal and record of appeal ought to have been lodged within sixty (60) days from 10th July 2012 when the notice of appeal was filed. The sixty (60) days ended on 10th September, 2012. In terms of rule 90 (1) of the Rules, to initiate an appeal, the applicant was supposed to lodge first, a notice of appeal and later, a memorandum of appeal, record of appeal and furnish security for costs. From the above findings, we hold that, the whole period of delay was accounted for by the applicant. Therefore, the application meets the tests for the Court to exercise its discretion in the applicant's favour. 14

The upshot of the above is that, we grant the applicant's application for reference and reverse the decision of the single Justice. We consequently grant the applicant sixty (60) days from the date of the delivery of this ruling to lodge a memorandum and record of appeal. Each party to bear own costs. It is so ordered. DATED at DAR ES SALAAM this 11th day of September, 2023. S. A. LILA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2023 in the presence of Mr. Gaspar Nyika, learned counsel for the applicant and Mr. Ajay Soman - Managing Director for the respondent is hereby certified as a true copy of the original.