East African Cables (Tanzania) Limited vs Metal Fabricators Zambia PLC (Civil Application No. 1148 of 2024) [2025] TZCA 877 (25 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1148 OF 2024 EAST AFRICAN CABLES (TANZANIA) LIMITED...............................APPLICANT VERSUS METAL FABRICATORS ZAMBIA PLC.. ........................................... RESPONDENT (Application for Extension of Time Arising from the Orders of this Court) f Lila. J.A.1 ) dated 11th of September, 2024 in Civil Application No. 528 /01 of 2023 RULING 25th August, 2025 NANGELA. J.A.: On the 21/10/2024, this Court issued an order rectifying its earlier order, dated 11/9/2024 following a request in a letter by the applicant to have the order portray a correct description and value of a property that was a subject of that order. The order dated 11/9/2024 had directed the applicant to deposit original title deed of land described as Plot No. 1316 Block "A" Yombo Vituka, Dar-es-Salaam, with Title No. 43316, L.O. No. 153937 within 30 days for the date of that order. However, on the 01/11/2024, the applicant filed this current application under Rules 10 and 4 of the Court of Appeal Rules, 2009 (the Rules) by way of a notice of motion supported by an affidavit of Geoffrey Odhiambo, its Managing Director, seeking for extension of time within

which she will deposit the title deed which was earlier ordered to be deposited as security by this Court. Three grounds were advanced in the notice of motion regarding why this Court should grant the application. These were that:

1. Fairness, equity, and natural ju stice dem and enlargem ent o f tim e to deposit Title Deed be granted to the A pplicant
2. The application fo r extension o f tim e fo r the A pplicant to deposit the Title Deed was made w ithout undue/inordinate delay.
3. That, the applicant is w illing and ready to deposit the Title Deed fo r the due perform ance o f the decree as sh a ll be directed by the Court and, that, costs o f and incidental to the application, The respondent resisted this application by filing an affidavit in reply on the 14/11/2024. She also filed a notice of preliminary objection raising therein two grounds of objection, to wit, that:
4. The application is incom petent fo r having prayers to extend a non-existent order o f stay o f execution.
5. The Court is functus officio to entertain th is application. At the hearing of this application, Ms. Inviolata Wangoma, learned advocate appeared for the applicant while Ms. Clara Thadeus Mramba and Ms. Assela Arcard also learned advocates, appeared for the respondent. Since the respondent had raised preliminary objections, it was apposite, as it is customarily done, to start by addressing those

points of law. Consequently, the parties were invited to submit on the two grounds constituting the respondent's notice of preliminary objection. The parties made their respective submissions before the Court, each fending for her position. Essentially, the respondent counsel's line of argument in support of the first preliminary objection is that, under the provisions of Rule 10 of this Court's Rules, the Civil Application No. 528/01 of 2023, which formed the basis of this Court's order dated 11/9/2024 does no longer exist because it was conditional. Ms. Arcard argued both preliminary objections together submitting that, under this Court's previous order, the applicant was required to deposit in Court, within 30 days from the date of that order, the Title Deed earlier described hereabove, and that, the latest date within which compliance ought to have been effected was 11/10/2024. She maintained that the applicant failed to comply and, instead came up with the present Civil Application No. 1148 of 2024. Accordingly, she maintained that since the applicant failed to deposit the title deed, there is no order to extend and the application is thus misconceived and should be struck out with cost, considering what this Court did in a similar situation in the case of Byblock Contractors

Limited vs. Salum Said Hamed [2024] TZCA 974 (TanzLII). She invited this Court to draw inspiration from that decision of its own and reject this application. Secondly, it was her submission that this Court is functus officio because the decision was reached and made known to the parties the adjudicating tribunal becomes functus officio. She relied on the case on the case of Bibi Kisoko Merdard vs. Minister for Lands, Housing and Urban Development and Another, [1983] TLR 250. She argued that, in the application before this Court, a decision of this Court was made and the Court finished what it was asked to do. There can be no other room left to reopen the already foreclosed proceedings. She, therefore, urged this Court to dismiss this application with costs. For her part, Ms. Wangoma submitted that the preliminary objections raised by the respondent's counsel are of no merit. First, a preliminary objection must be a pure point of law which, if determined, will thereby dispose of the matter before the Court. She conceded that, indeed, this Court granted the earlier application for stay of execution with condition that the applicant deposit a title deed as security for the due performance of the decree and that order of the Court was not complied with. However, it was her contention that the grounds of objection are matters that go to the merit of the application itself and,

that entertaining them pre-empty the application which is before this Court. For that reason, they are not qualified as preliminary points of law. Concerning whether the Court is functus officio or not, it was Ms. Wangoma's submission that the issue goes to the merit of the application itself as she earlier argued. She contended that, since there is an application which is pending before this Court, the Court cannot be said to be functus officio. She thus urged this Court to overrule the preliminary objections and proceed to determine the matter on merit. When asked about the relevance of the case of Byblock Contractors Limited (supra), Ms. Wangoma left the matter in the hands of the Court. In a brief rejoinder, Ms. Assela reiterated her submission in chief and insisted that the two preliminary objections constitute points of law, falling within the parameters set by the case of Mukisa Biscuits Manufacturers vs. West End Distributors Limited [1969] E. A 696. I have looked at the pleadings laid before me and the cited decision of the single Judge of this Court in Byblock Contractors Limited case (supra) and I have also considered the submissions made by the learned counsel for the parties. The question that I need to address is whether the two preliminary objections are meritorious. Although Ms. Wangoma contended that the two preliminary points of law 5 I

do not qualify as preliminary objections, Ms. Assella held a different view, contending that they do qualify and fall within the parameters of what amounts to a preliminary objection, as defined in the often-quoted case of Mukisa Biscuits Manufacturing Ltd (supra). In my view, Ms. Assela is correct on that point. The two points contained in the notice of preliminary objection do qualify as preliminary points of law worth entertaining. The first point questions the competence of this application on the ground that there is nothing before the Court like an application for stay of execution that would have warranted this Court to give it a further a lease of life. Reliance was, and in my view rightly so, placed on the Byblock Contractors Limited case (supra). In that case, an applicant had previously been granted a stay order but on condition that she deposit in Court a bank guarantee for the sum of TZS. 191,644,000/= within thirty (30) days from the date of the order but failed to do so. However, after the expiry of the thirty days, she lodged an application in Court, in a bid to seek for extension of time within which she would deposit the bank guarantee. The Court rejected the application noting that there could be no issue of extension of time on something which is no longer there. 6

Looking at the facts of this case and what this Court decided in Byblock Contractors Limited case (supra), I tend to agree with the submission made by Ms. Assela that even in this case there is nothing before the Court warranting an extension. This Court decided the Civil Application No. 528/01 of 2023 with finality and made its orders known to both parties. Nothing was left on the Court's table. For that matter, and, as rightly stated in the Byblock Contractors Limited case (supra), there could be no issue of extension of time on something which is no longer there. Besides, having determined the said Civil Application No. 528/01 of 2023, this Court was rendered functus officio and no further orders which it can be called upon to make in respect of that application without first vacating such previous orders of its own. For that matter, the case of Bibi Kisoko Merdard (supra), which Ms. Assella retied on to support her submission, is quite relevant as it made it clear that, in matters of judicial proceedings, once a decision has been reached and made known to the parties, the adjudicating tribunal or court is rendered functus officio. In this application, the inaction on the part of the applicant to comply with the orders of this Court under which a stay of execution was granted on the condition that the applicant deposit original title deed in 7

respect of land described as Plot No. 1316 Block "A" Yombo Vituka, Dar- es-Salaam, with Title No. 43316, L.O. No. 153937 within 30 days from the date of that order, means that the stay order lapsed and no longer exists. Considering what I have stated hereabove, the two preliminary points of law are therefore meritorious, and I hereby uphold them holding that this application is misconceived. It is therefore hereby struck out with costs. It is so ordered. DATED at DODOMA this 25th Day of August, 2025. D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 25th day of August, 2025 in the presence of Ms. Inviolata Wangoma, learned counsel for the Applicant while Ms. Clara Mramba, and Assella Arcard both learned counsels for the Respondent, through virtual court, is hereby certified as a true copy of the original. 8