Bimel Enterprises Company Limited vs Tanzania National Roads Agency and 2 Others (Civil Appeal No. 429 of 2021) [2024] TZCA 1254 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA. 3.A., KITUSI. J.A. And MASHAKA, J.A.^ CIVIL APPEAL NO. 429 OF 2021 BIMEL ENTERPRISES COMPANY LIMITED APPELLANT VERSUS TANZANIA NATIONAL ROADS AGENCY THE ATTORNEY GENERAL STRADA INTERNATIONAL B.C.E LTD 1 st RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Arusha) 10th & 11th December, 2024 KITUSI, J.A.: The appellant, a corporate body going by the name of Bimel Enterprises Company Ltd went to the High Court at Arusha Registry to seek reliefs for wrongful seizure of its construction equipment by the Tanzania National Roads Agency (TANROADS), the first respondent. The essence of the claim presents a few twists and turns involving two contracts, but not of immediate relevance. fMzuna, 3) dated the 14th day of August, 2020 in Civil Case No. 23 of 2014 RULING OF THE COURT 1

There was the first contract, and in our view the main, between the first respondent as the employer and Strada International B.C.E Ltd, the third respondent, the contractor. The contract was for the third respondent to carry out upgrading of the road from KIA to Mererani in Arusha Region measuring 26 KM. However, all did not go well causing the first respondent to terminate that contract on allegation of default on the part of the third respondent. There was another contract, between the appellant and the third respondent in which the appellant allegedly hired to the third respondent construction equipment for the third respondent to perform works under the main contract. When the contract was terminated as above said, the contractor left the site and went to unknown destinations but the equipment that it had mobilized at the site remained to be there. The first respondent confiscated this equipment, and that was the basis of the suit by the appellant claiming that it should be declared the owner as per the second contract. The first respondent maintained that its action was consistent with the General Conditions of the first contract. The suit was initially placed before Opiyo, J at the time when the third respondent was not a party yet. The learned Judge dismissed the suit for non-joinder of the third respondent. On appeal to the Court of Appeal, the

Court nullified the orders of the High Court and quashed the judgment on the ground that the issue of non-joinder was raised and decided by the court without affording the parties an opportunity to be heard. The Court ordered remittance of the record to the High Court for it to hear the parties on the issue. This time around, the matter was placed in the docket of Mzuna, J. The counsel for the appellant successfully applied for leave to amend the plaint so as to join the third respondent. However, at the end of the day, the High Court dismissed the suit on the basis that the 1st defendant was, under clause 63.1 of the Agreement (Exhibit D l) deemed to be the owner of the equipment. And that the appellant did not prove ownership of all except one equipment. The appellant is still at it, challenging that decision on five grounds which we need not refer to, at this juncture. At the hearing of this appeal in the presence of Mr. Moses Mahuna, learned advocate for the appellant and Mr. Deodatus Nyoni, learned Principal State Attorney for the 1st and 2n d respondents, assisted by Mr. Masunga Kamihanda, learned Senior State Attorney and Ms. Lilian Mirumbe, learned State Attorney, the third respondent did not enter appearance. The affidavit of service indicated that she could not be traced for service of notice of hearing, so we called upon the learned members of

the state and private bar in this case to address us on whether we should proceed with the hearing or not. Mr. Mahuna submitted that hearing should proceed under rule 112 (2) of the Court of Appeal Rules, 2009 (the Rules) because the third respondent had gone missing right from the time when she abandoned the project and fled the country. And that his whereabouts are unknown in appreciation of which, the High Court proceeded in her absence. The learned counsel further submitted on the fact that this case is old so we should not cause it to suffer more delay. On his part Mr. Nyoni submitted that the right to be heard is so fundamental that it cannot be taken away merely to achieve speed. We note that unlike in the trial, where an order was made for substituted service on the third respondent, none has been prayed for and made in this appeal. Hearing cannot, therefore, proceed under rule 112 (2) of the Rules as prayed by Mr. Mahuna because that rule presupposes that there was service of notice of hearing on the defaulting party. We are therefore constrained to adjourn hearing of this appeal to a date to be fixed by the Registrar in the next sessions of the Court. In the meantime, it is ordered that the third respondent be served by publication in one issue of an English newspaper of wide circulation and in one other

issue of a Swahili newspaper also of wide circulation. Costs of such publication to be borne by the appellant. DATED at ARUSHA this 10th day of December, 2024. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 11th day of December 2024 in the presence of Mr. Moses Mahuna learned advocate for the appellant and Mr. Deusdedith Kweka learned State Attorney for the 1st and 2n d Respondents, the third respondent did not enter appearance, is hereby certified as a true copy of the original. J, J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 5