Maersk Zanzibar Limited & Another vs Yunus Hashim Ayoub (Civil Application No. 788/15 of 2023) [2025] TZCA 933 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLLICATION NO. 788/15 OF 2023 MAERSK ZANZIBAR LIMITED ................... . .....................1 st APPLLICANT NYOTA TANZANIA LIMITED ............................................ 2 nd APPLICANT VERSUS YUNUS HASHIM AYOUB.....................................................RESPONDENT (Application for extension of time within to file appeal to the Court of Appeal to challenge the decision of the High Court of Zanzibar (Commercial division) at Vuga) (MohamedJL) dated the 3rd day of September, 2021 in Commercial Case No. 01 of 2020 RULING 25th August & 3rd September 2025 GALEBA, J.A.: This application has been brought under rule 10 of the Tanzania Court of Appeal Rules 2009, (the Rules). It is for enlargement of time to appeal to this Court, in order to challenge the decision of the High Court of Zanzibar sitting at Vuga, in Commercial Case No. 01 of 2020, in which the applicants lost in favour of the respondent. The decision sought to be challenged was handed down on 3r d September, 2021, and the notice of appeal was given quite in time. i

As usual, a copy of the proceedings was requested under rule 90 (1) of the Rules, by the applicants' previously retained legal counsel, one Mr. Slim Salim Abdallah, on 13th September, 2021. However, that letter, is alleged to have neither been copied, nor served on to the respondent. Nonetheless, on 20th January, 2022, the Deputy Registrar of the High Court at Zanzibar, informed Mr. Abdallah of the readiness for collection of the copy of the proceedings requested. It is alleged that Mr. Abdallah responded to the call by collecting the requested documents. It is also a fact that, although the necessary copy of the proceedings was duly collected, apparently, no appeal was filed. Following failure to file the appeal in time, around November 2022, Mr. Abdallah advised the applicants that the only feasible way forward, was to file an application for extension of time to file an appeal, and with their approval, he drafted the necessary documents, but the learned advocate did not file the application. Subsequently, for reasons that are not on record, there ensured a communication breakdown between the applicants and Mr. Abdallah, such that the learned advocate was completely incommunicado, leading to a stalemate.

In a quest to defend their interests in the court case, in December 2022, the applicants approached an alternative learned counsel, one Mr. Gaspar Nyika, who, having noted that time to file appeal had indeed lapsed, on 2n d May, 2023, filed Civil Application No. 731/15 of 2023 seeking extension of time to file the appeal. However, that application was withdrawn on 3r d May, 2024 by one, Ms. Natasha Mukangara learned advocate who was appearing for the applicants. On 25th October, 2024, this application was filed, praying for the same orders of extension of time to file appeal, as the previously withdrawn application. The application is predicated on rule 10 of the Rules, and the notice of motion is supported by the affidavit of Mr. Nyika. The matter is strongly resisted by the respondent through his affidavit in reply. At the hearing, Messrs. Kiariga Nyaisa Kiariga and Abdulkhaliq Mohamed Aley, both learned advocates, appeared for the applicants and the respondent, respectively. In supporting the application, Mr. Kiariga submitted that, after the applicants lost the case at the High Court, they instructed Mr. Abdallah, who acted negligently because, one, he did not serve the respondent with a copy of the letter requesting for a copy of court proceedings; two, after receiving the documents from the trial court, Mr. Abdallah, did not file the

appeal, and; three, although the applicants instructed him to file an application for extension of time, the learned advocate did not do so. All these inactions by Mr. Abdallah, Mr. Kiariga, argued, were beyond the control of the applicants, hence amounting to good cause justifying grant of an order for extension of time. Mr. Kiariga made a couple of other points, all seeking to establish that the applicants have good cause to explain the delay. However, before he could conclude, he submitted that the other critical point upon which the application was based, is that of illegality. In that respect, the learned counsel submitted that, the judgment to be challenged suffers a serious illegality because the 1s t applicant which is the 1s t judgment debtor in that judgement, does not exist. His point was that, for a judgment to be valid, it must have existing judgment debtors. In reply to the first part of Mr. Kiariga's submissions, Mr. Aley in the main argued that, under rule 91 (a) of the Rules, this application is not competent because, there is no notice of appeal, for the same under that rule, is deemed to have been withdrawn. As for the issues involving omissions and non-compliances by Mr. Abdallah, Mr. Aley submitted that, negligence of an advocate cannot amount to good cause warranting extension of time.

On the issue of illegality, Mr. Aley submitted that, it is not true that the 1s t applicant does not exist. He affirmed that, the 1s t applicant exists, although when I asked him whether the respondent's side knew of her registered office, he admitted not being aware of the 1s t applicant's legal existence or a place from where that "company" carries on business. I will start with this very point; the point of illegality, and for purposes of clarity, I must state here that, the issue whether the impugned judgment is illegal or it is not, is not a matter for which this Court, as presently constituted, has jurisdiction to investigate or render a decision upon. And even if this Court constituted by a single Justice, would have mandate of the law to do so, the documents available in this matter, are too insufficient and scanty, to shed any useful light for that purpose. Therefore, the issue before me is narrow and a non-decisive one, and it is this; is an allegation of inclusion of a name of a non-existing entity in a judgment, as a judgment debtor, an illegality in that judgment? I have considered the contending submissions of both counsel, and wish to state that the issue of parties' capacity to sue and being sued was considered by this Court in the case of Afriq Engineering & Construction Company Limited v. The Registered Trustees of the 5

Diocese of Central Tanganyika, Civil Appeal No. 474 of 2021 (unreported), and this is what the Court stated: 'We wish to start by stating that the issue of parties to the case is fundamental and centra! in aii proceedings. It goes to the very root o f the matter as, for a person to bring a matter before the court or a tribunal, they must be capable to sue and or being sued..,. In the instant appeal, there is no dispute that, before the arbitrator, the appellant instituted her statement o f claim against the DCT, a non-existing entity which cannot sue or be sued. We are mindful o f the fact that, in his submission before us, although, Mr. Shayo conceded to that fact, he contended that, since the issue o f respondent's names was finally determined by the arbitrator it was not proper for the respondent to have re-opened it before the High Court and also in this Court. With profound respect, we find the submission by Mr. Shayo on this aspect misconceived because, the same being a legal issue, can be raised at any stage, even at the appellate level." [Emphasis added] See also the case of Joseph Magombi v. Tanzania National Parks, Civil Appeal 114 of 2016 (unreported). 6

That is to say, suing a non-existent entity, as was alleged before me by Mr. Kiariga is an issue of law, therefore an illegality, if established. That is so because, competence of parties to a law suit, is as stated above, an issue of law. Presently in this jurisdiction, it is almost common knowledge that an allegation of illegality even without demonstrating any good cause explaining the delay, entitles the applicant for an order extending time, at least for the Court to address the illegality alleged. See this Court's decisions in VIP Engineering and Marketing Limited and Two Others v. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 (unreported) and Tanzania Harbours Authority v. Mohamed R. Mohamed [2003] T.L.R. 76. In other words, and with respect to Mr. Aley, as the allegation of non-existence of the 1s t applicant, is an issue of legal significance, as per the above authorities, this Court has to grant extension of time to the applicants in order to challenge the decision of the High Court without even having to consider the other points argued by learned advocates seeking to explain the delay. In view of the above, this application succeeds, and it is hereby allowed. The applicants are granted thirty (30) days, from the date of

receipt of this order from the Court, to file an appeal. Each party shall bear their own costs. DATED at DODOMA, this 3r d day of September 2025. Z. N. GALEBA JUSTICE OF APPEAL The Ruling delivered this 3r dday of September, 2025 in the presence of Mr. Kyariga Nyaisa Kyariga, learned counsel for the Applicants, Mr. Abdulkhaliq Aley, learned counsel for the Respondent, via vitual Court and Issa Issa, Court Clerk; is hereby certified as a true copy of the original.