Usangu Logistics Limited vs Sas Logistics Limited (Civil Application No. 1015 of 2024) [2024] TZCA 1098 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1015 OF 2024 USANGU LOGISTICS LIMITED.................................................... APPLICANT VERSUS SAS LOGISTICS LIMITED.................................................... RESPONDENT [Application for extension of time to file an application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Aaatho, J.l dated the 30th day of June, 2023 in Commercial Case No. 28 of 2022 RULIN G Is ' & 12th November, 2024 MAKUNGU. J.A.: By a notice of motion filed under rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) the applicant had sought to move this Court to order for extension of time to file an application for stay of execution of the judgment and decree of the High Court of Tanzania (Commercial Division) in Commercial Case No. 28 of 2022 pending hearing and determination of the intended appeal. The application is supported by an affidavit duly affirmed by the applicant's Director one Saadkhan Shermohamed Ismail.

The application is resisted by the respondent not only by way of an affidavit in reply, but also by a notice of preliminary objection of which was filed under rule 107 (1) of the Rules and served on the applicant. The objection is based on a single point which goes thus: "The application is unmaintainable in law for contravening the principle established in the cases o f East African Development Bank versus Blueline Enterprises Limited, Civil Appeal No. 101 o f2009, Court of Appeal at Dar es Salaam and Olam Uganda Limited suing through its Attorney United Youth Shipping Company Limited v. Tanzania Harbours Authority, Civil Appeal No. 57 of 2002 '. In order to appreciate the essence of this application, it is opportune to narrate a brief background facts on the dispute between the parties. The applicant and respondent executed a memorandum of understanding for transportation services. The respondent breached the memorandum of understanding and demanded payment as a result of a breach, and the applicant disputed the payment. Due to that dispute the respondent filed a Commercial Case No. 28 of 2022 at the High Court of

Tanzania (Commercial Division) claiming for breach of memorandum and payment of USD 114,135.94. The case was heard on merit and on 30th June, 2023 the High Court delivered its judgment and decree dismissing the counterclaim and holding that the applicant has breached the memorandum of understanding. Immediate after the delivery of the said judgment the applicant on 10th July, 2023 filed a notice of appeal to this Court. On 15th August, 2023 the applicant filed in this Court the memorandum and record of appeal in Civil Appeal No. 438 of 2023 challenging the said judgment of the High Court. Despite the applicant's pending appeal, the respondent filed an application for execution of the decree of which its notice accompanied by a warrant of attachment of the applicant truck and trailer, was served on the applicant on 4th October, 2023. The notice prompted the applicant to file Civil Application No. 749/16 of 2023 before this Court on 6th October, 2023 for an order to stay the execution of the decree, the application which was struck out on 25th September, 2024 for being incompetent as it was not accompanied by a notice of appeal in compliance with rule 11 (7) of the Rules.

After Civil Application No. 749/16 of 2023 had been struck out on 15th September, 2024, as alluded to above, the applicant came back by filing Application No. 779/16 of 2024 which was also struck out on 16th October, 2024 for being incompetent as it was filed out of time. Thus, the applicant has filed this application for extension of time. At the hearing of the application, the applicant was represented by Mr. Stephen Axwesso assisted by Mr. Mahmoud Mwangia, both learned counsel, whereas the respondent had the services of Messrs Mohamed Muya and Benson Adam, both learned counsel. In the hearing of the preliminary objection, it was Mr. Muya, learned counsel, who kicked the ball rolling. He submitted that the application is not maintainable in view of the decision in East African Development Bank (supra) that once an order of dismissal is made under section 3 (1) of the Law of Limitation Act it is not open to an aggrieved party to go back to the same court and institute an application for extension of time. He submitted further that in a previous application for a stay, Civil Application No. 779/16 of 2024 which was before Mwampashi, JA. was struck out on the ground of being time barred on

16th October, 2024, the legal position dictates that once a matter has been struck out for being time barred, it carried the same consequences as if it had been dismissed. He bolstered his arguments by our decision in MM Worldwide Trading Limited and 2 Others v. National Bank of Commerce, Civil Appeal No. 258 of 2017 (unreported), where it was held that the order striking out the suit in the former suit for being time barred amounted to a conclusive determination of that suit by the trial court. He added that this legal stance is well elucidated in several case laws, indicating that the applicant's course of action should have been to seek the vacation of the dismissal order rather than pursuing an extension of time. He concluded that the application before the Court has been wrongly filed. He prayed for this application to be struck out with costs. In response, Mr. Axwesso, learned counsel for the applicant submitted that this application is preferred under rules 10 and 48 (1) of the Rules which allow a party to seek extension of time before this Court if the initial time expired. He pointed out that Civil Application No. 779/16 of 2024 was not dismissed but it was struck out for being incompetent and this Court has now settled the principles that 5

incompetent matter cannot be dismissed. To fortify his arguments, he made reference to our decisions in Bank of Tanzania v. Zuhura H. Mbulu, Civil Appeal No. 207 of 2021, Said Abdalla Doga v. Rose Fridoline Mwapinga, Civil Revision No. 1 of 2020, Tanzania Game Trackers Limited v. Bryan Priestly, Civil Application No. 17/02 of 2019 and Exim Bank (Tanzania) Limited v. Abeed M. Manji, Civil Application No. 677/08 of 2020 (all unreported). The learned counsel for the applicant concluded that the two cases cited by the respondent's counsel are distinguishable from the present case. He therefore urged the Court to dismiss the preliminary objection and proceed to determine the application on merit. In a short rejoinder, the respondent's learned counsel, stated that rule 10 of the Rules allows a party to seek extension of time but not on the matter which was struck out for being time barred. He concluded that the case of Bank of Tanzania (supra) is distinguishable from the present case. Let me now dispose of the preliminary objection. The only issue for my determination is whether the instant application for extension of time

is tenable or not. As rightly submitted by Mr. Muya, learned counsel, that Civil Application No. 779/16 of 2024 was struck out on 16th October, 2024 for being time barred. The question that arises here is whether, after the said application had been struck out was it in order and proper for the instant application to be filed to seek for extension of time within which to refile the same. Applications for extension of time within which to perform any act in legal proceedings are controlled by the provisions of rule 10 of the Rules which the present application has been made. Rule 10 reads: "The Court may, upon good cause shown , extend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing o f any act authorized or require by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference int these Rules to any such time shall be construed as a reference to that time as so extended It is apparent from the above provisions that a party may seek extension of time whether before or after the expiration of that time and

whether before or after doing of the act. The applicant filed this application after the time of filing it had expired. The rule allows this move. The respondent's counsel arguments that this application is not maintainable because Civil Application No. 779/16 of 2024 was struck out by the Court which, in his view, amounted to dismissal, with due respect, I do not agree with that argument. I would agree with the applicant's counsel that the position of this Court is that the remedy of incompetent application is not to dismiss it but to strike it out. In Bank of Tanzania (supra) the Court stated that: "It is settled principle that an incompetent matter cannot be dismissed. The logic behind is that if the matter is incompetent, then the Court lacks jurisdiction to entertain it on merit, instead, that matter is struck out to give an interested party an option to revert back properly to the same court to pursue the matter in question" Again, in Said Abdalla Doga (supra) the Court laid down the procedure to be followed after the matter being struck out. The Court held that; "From what we know of the procedure as it currently obtains, the matter which was struck 8

out for being time barred could only be revived through application for extension o f time which would pave the way for filing a new appeal which would, most likely, bear a different number as submitted by Mr, Luguwa and filed in a different year" The cases cited by the respondent's counsel, in my considered view, are distinguishable from the facts of this case. While in those cases the suits were dismissed in the High Court under section 3 (1) of the Law of Limitation Act, which is not applicable to the Court, then the arguments by Mr. Muya that the application is unmaintainable for being time barred, the argument which its basis is on that provision, scramble instantly. I think the foregoing sufficiently explains why I would decline the invitation by the respondent's learned counsel to dismiss the present application. In sum, therefore, I decline the invitation of Mr. Muya, learned counsel and proceed to overrule the preliminary objection raised and I hereby dismiss it. Costs shall abide the outcome of the application. I

therefore proceed to determine the application on merit by way of written submissions. The parties are hereby ordered to submit their written submissions within seven days hereof and the ruling shall follow thereafter. Order accordingly. DATED at DAR ES SALAAM this 11th day of November, 2024. 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 12th day of November, 2024 in the presence of Mr. Denis F. Machui, learned counsel for the applicant and Mr. Mohamed Muya, learned counsel for the respondent; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL