ACCLAIM Construction Supplies Limited vs The Arab Contractors & Another (Civil Application No. 488/16 of 2024) [2025] TZCA 866 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: KOROSSO. J.A.. MAKUNGU. J.A. And RUMANYIKA. J.A.^ CIVIL APPLICATION NO. 488/16 OF 2024 ACCLAIM CONSTRUCTION SUPPLIES LIMITED .......................... APPLICANT VERSUS THE ARAB CONTRACTORS (OSMAN AHMED OSMAN & CO. LIMITED) . ........................ 1 st RESPONDENT EL SEWEDY ELECTRIC COMPANY AC-EE JOINT VENTURE.................................................. 2 nd RESPONDENT (Application to strike out the Notice of Appeal against the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) 0 ( Mbagwa, J.) dated the 24th day of February, 2023 in Commercial Case No. 01 of 2022 RULING OF THE COURT 5th & 21st August, 2025 RUMANYIKA. JA.: Pursuant to rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), the applicant herein seeks indulgence of the Court to strike out a notice of appeal which was filed by the respondents on 1s t March, 2023. This application has been preferred by way of notice of motion supported by an affidavit deponed by Mr. Abubakar Salim for the applicant on ground that the respondents have failed to take essential steps in pursuit of the intended 1

appeal. The respondents opposed it by filing jointly an affidavit in reply which was deponed by Frank Kifunda, learned counsel. Briefly, all began with the applicant who successfully sued the respondents (the construction companies) in the High Court of Tanzania at Dar es Salaam in Commercial Case No. 01 of 2022. That suit was for breach of contract for supply of construction equipment. Aggrieved by that decision, on 1s t March, 2023 the respondents lodged a notice of appeal, subject of this application. In the founding affidavit, the applicant averred that, since the time of filing notice of appeal, a period of about sixteen months has lapsed. And that the applicant was not yet served with copy of the record and memorandum of appeal as essential steps to advance the appeal. The respondents in their affidavit in reply averred to have readily requested for all the documents necessary for appeal purposes and received the same on 6th March, 2023, then they filed Civil Appeal No. 25 of 2024 on 15th January, 2023. It is also averred that on 19th January, 2024 they attempted to serve a copy of the record of appeal on the applicant vainly as she directed the respondents to serve her advocate directly. It is also averred that the respondents' attempts to serve the applicant through Nassoro & Co. Advocate, and later on through Rutasingwa & Associate Attorneys as were alternatively directed by the applicant bore no fruit. Explaining, the respondents stated that, the Law Firms above refused service alleging to

have no instructions of the applicant. And that, one Salum Edward, the Court Process Server also attempted but failed to serve the applicant. Under those circumstances, the respondents urged the Court to dismiss the application for being unmerited since, also, their failure to serve the documents was associated with the applicant's failure to file a proper address for service. At the scheduled hearing of the application, Messrs. Juma Nassoro and Salim Abubakar, learned counsel appeared for the applicant, whereas the respondents enjoyed the services of Mr. Frank Kifunda, learned counsel. Mr. Nassoro began by adopting the applicant's written submissions which were filed on 19th September, 2024. In a nutshell, he contended that, a period of about sixteen months had lapsed from the date the notice of appeal was filed without the applicant being served with the record of appeal and hence the present application. Further, it was asserted that, neither the respondents' affidavit in reply nor affidavit of the said Court Process Server disclosed the names of the individuals who allegedly refused service of the documents on the 19th January, 2024. Mr. Nassoro also argued that it is not clear as to who directed the respondents to service the applicant through Nassoro and Co. Advocates and Rutasingwa & Associate Attorneys as allegedly reported by the Court Process Server. Further, he contended that, the physical location of the alleged two offices which were approached and refused the service was not disclosed in the Court Process Server's affidavit. 3

As such, Mr. Nassoro urged the Court to take the respondent's averments as afterthoughts as no attempts were made at all to serve the said documents on the applicant. He added that, the omission to serve the said documents constituted failure of the respondents to take essential steps in the proceedings in furtherance of the appeal in terms of rule 89(2) of the Rules. On those premises, therefore, Mr. Nassoro asserted that Civil Appeal No. 25 of 2024 which is pending in the Court is faulty. Stressing on the effect of failure to serve the said documents to the adverse party, the learned counsel cited Tumsifu Gabriel Mmari v. Exaud Gabriel Mmari (Administrator of the Estate of the Late Silipa Yetro Lema) (Civil Appeal No. 397 of 2022) [2025] TZCA 192 (13 March 2025; TanzLII). In that case, the Court struck out the appeal for being incompetent. On the whole, Mr. Nassoro urged the Court to grant the application by striking out the said notice of appeal with costs to the applicant. On their side, the respondents did not file written submission. Having adopted the respondents' affidavit in reply, Mr. Kifunda contended that, the application is misconceived and thus bound to fail because the applicant refused service of the documents related to appeal. Explaining, Mr. Kifunda argued that, although the names of the personnels of the said two Law Firms who allegedly refused service are not disclosed, the fact is that the respondents' efforts to serve the documents proved futile. He added that,

the Court Process Server's affidavit was enough evidence proving the applicant's refusal of the service. Mr. Kifunda also argued that the applicant's failure to disclose physical address of the Msasani offices where allegedly service was refused is immaterial. Also, it was asserted that the alleged vague verification clause in the founding affidavit counts nothing in the circumstances of the case. Mr, Kifunda implored us to find that the application is misconceived and dismiss it with costs. We have accordingly considered the learned counsel's submissions, the authorities cited and their oral submissions. The issue for consideration is whether the respondents did not take essential steps (serving the said documents on the adverse party) in furtherance of the appeal to warrant striking out notice of appeal filed on 1s t March, 2023. As intimated above, the ground on which the instant application is predicated is that, the record and memorandum of appeal were not served to the applicant contrary to rule 97 (1) of the Rules. The respondents, in reply averred that their efforts to serve the applicant with those documents did not bear fruit because the latter refused and or avoided the service. Therefore, they argued that the issue of failure to take essential steps should have not been raised in the circumstances of the case. As such, we are settled in our minds that, when the respondents' averments under paragraphs 6, 7, and 8 of the joint-affidavit in reply are

read together with the contents of the affidavit of the Court Process Server, the strength of the efforts made cannot be under estimated. They did their best as prudent litigants. With respect, therefore, we note that under rule 97(1) of the Rules, the degree of proof required for the service of the documents is beyond reasonable doubt as it is seemingly proposed by Mr. Nassoro. Simply it is intended to discourage the parties to ambush each other in courts, endless litigation and more so to promote substantive justice. Therefore, any move to short circuit the substantive justice like striking out a notice of appeal casually is discouraged. Important to note, therefore, our proposition in Tumsifu Mmari (supra) cited by Mr. Nassoro is unapplicable to the present case. It is so because, in that case the preliminary objection concerned the respondent's failure to serve the applicant with the documents rendering the appeal incompetent and struck out whereas in the present case the respondents are alleged to have refused/avoided the service. However, without prejudice to the foregoing we are unable to agree with the contention of Mr. Kifunda that the respondents' failure to serve the documents was contributory for the applicant's failure to provide address for service. As such, we agree with Mr. Nassoro that the applicant ought to have been served through the latter's last known address in this case through Nassoro and Company Advocates and Rutasingwa & Associate Attorneys. We note under paragraphs 6, 7 and 8 of the respondents' affidavit in reply that

the applicant had the services of the said law firms as her last known address. We took that stance also in MANTRAC Tanzania Ltd v. Goodwill Ceramics Tanzania Ltd (Civil Application No. 419/16 of 2024) [2025] TZCA 544 (29 May 2025; TanzLII). As such, we are satisfied that the respondent observed the requirement above but for the alleged refusal/avoidance of service otthe documents by the applicant. In view of the discussion above, we decline to accept Mr. Nassoro's invitation to strike out the said notice of appeal. Consequently, we hereby dismiss the application with costs. DATED at DODOMA this 21s t day of August, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. O. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA ’ JUSTICE OF APPEAL Ruling delivered this 21s t day of August, 2025 in the presence of Mr. Salim Abubakar, learned counsel for the Applicant and Mr. David Kasanga, learned counsel for the Respondent both through Virtual Court; is hereby certified as a true copy of the original. 7