Usangu Logistics Limited vs Sas Logistics Limited (Civil Application No. 1031 of 2024) [2024] TZCA 1096 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1031 OF 2024 USANGU LOGISTICS LIMITED ........ ............................................. APPLICANT VERSUS SAS LOGISTICS LIMITED......................................................... RESPONDENT [Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Aggthp, J.) dated the 30th day of June, 2023 in Commercial Case No. 28 of 2022 RULING 4th & 12th November, 2024 MAKUNGU. J.A.: By a notice of motion filed under rule 4 (1), (2) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules) the applicant had sought to move the Court to order a stay of execution pending hearing and determination of the application for extension of time lodged in this Court on 18th October, 2024. The application is supported by an affidavit duly affirmed by the applicant's Director one Saadkhan Shermohamed Ismail. It is deposed in the supporting affidavit, among other things, that 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's truck and trailor. The notice prompted the i

applicant to file Civil Application No. 749/16 of 2023 before this Court on 6/10/2023 for an order to stay the execution of the decree, the application which was however, struck out on 25/9/2024 for being incompetent as it was not accompanied by a notice of appeal in compliance with rule 11 (7) of the Rules. After the above application had been struck out on 25/9/2024, the applicant came back by filing Civil Application No. 779/16 of 2024 on 27/9/2024. That application also was struck out for being time barred. The applicant filed this application on 21/10/2024. The application was, however, greeted by a preliminary objection raised by the respondent, notice of which was filed on 29/10/2024, the subject of this ruling. The objection is based on two points which are to the effect that the application is res-judicata and is also time barred for being filed beyond the statutory period of fourteen days. Whereas, Messrs Stephen Axwesso and Mahmood Mwangia, both learned advocates, represented the applicant when the application was called on for hearing, the respondent had the services of Messrs. Mohamed Muya and Benson Adam, also learned advocates.

In his brief but focused submission in support of the preliminary objection, Mr. Muya argued that the application is res-judicata because previously the applicant filed two applications on the same which were struck out for being incompetent, He pointed out that those applications involved the same parties and subject matter to stay the execution of the Commercial Case No. 28 of 2022, and this application with the same subject matter. He added that the matter was heard on merit and conclusively determined. He cited the case of MM Worldwide Trading Company Limited and 2 Others v. National Bank of Commerce, Civil Appeal No. 258 of 2017 (unreported). On the second point of objection, the learned counsel argued that the application is hopelessly time barred, contrary to rule 11 (4) of the Rules. The rule makes it mandatory for any party who wishes to file an application for a stay of execution to file the same within 14 days from the day, he became aware of the said execution. He pointed out that the applicant became aware of the existence of the application for execution since the 4/10/2023 and the deadline to file the application for stay lapsed on 15/10/2023. This application was filed on 21/10/2024, therefore it is time barred. He cited the case of CATS Tanzania limited v. Savio Fernandes, Civil Application No. 341/18 of 2024 (unreported). He 3

concluded that this application is time barred, and he thus prayed for it to be struck out with costs. On the other part Mr. Axwesso did not agree with the above submission. On the first point of res-judicata, he argued that none of the two applications has been determined on merit. Both of them were struck out for being incompetent. He submitted that the two applications are distinct from this application. This one is seeking stay of execution pending the determination of application for extension of time while the previous applications were seeking stay of execution pending the determination of the intended appeal. On the second point he argued that the two applications were filed under rule 11 (4) of the Rules which requires to be filed within 14 days while this one is filed under rule 4 (1), (2) (a) and (b) of the Rules. Under this rule there is no requirement of that time and the Court has the power to grant the application under that rule. He cited the decision of this Court in Said Abdalla Doga v. Rose Fridoline Mwapinga and Another, Civil Revision No. 1 of 2020 (unreported). He thus urged me to overrule the objection and find that the application is properly before the Court.

In rejoinder, Mr. Muya submitted that rule 4 of the Rules cannot apply in existence of rule 11 of the Rules. He added that rule 11 is the one related to the filing of application of this nature and not rule 11 as filed by the applicant. He insisted that the application is time barred. I shall proceed to determine the preliminary objection whether the Court has jurisdiction to entertain the application for stay of execution when the previous applications were struck out. In this application the applicant cited rule 4 (1) (2) (a) and (b) of the Rules which provides: "4. (1) The practice and procedure of the Court in connection with appeals, intended appeals and revisions from the High Court, and practice and procedure of the Court in relation to review and reference; and the practice and procedure of the High Court and tribunals in connection with appeals to the Court shall be as prescribed in these Rules or any other written iawf but the Court may at any time, direct a departure from those Rules in any case in which this is required in the interests ofjustice. (2) Where it is necessary to make an order for the purpose of- (a) dealing with any matter for which no provision is made by these Rules or any other written law;

(b) better meeting the end ofjustice; or (c) preventing an abuse of the process of the Court, the Court may, on appiication or in its own motion , give directions as to the procedure to be adopted or make any other order which it considers necessary" [Emphasis provided]. This special rule was put in place to cover those situations where the Rules are silent or where in the interest of justice a need arose where the Court has to depart from the Rules in addressing the matter before it. The Court in Attorney General v. The Board of Trustees of the Cashewnut Industry Development Trust Fund and Another, Civil Application No. 72 of 2015 (unreported) stated: 'We think that, the wording of Ruie 4 (1) and (2) (a) and (b) of the Rules, is wide enough to give discretion to this Court to go into any matter or give any order, if it is of the option that it is required in the interest ofjustice" On the other hand, rule 11 is a provision which is particularly dealing with stay of execution. Starting with rule 11 (4) it provides: "(4) An appiication for stay of execution shail be made within fourteen days of service of the notice of execution on the applicant by the executing 6

officer or from the date he is otherwise made aware of the existence of an application for executiori'. In numerous decisions of the Court it has been held that for the Court to exercise its power under rule 11 (3) the application must be filed within 14 days. The application filed beyond that period of time becomes incompetent and liable to be struck out. (See CATS Tanzania Limited (supra) and Mbaraka A. Maharagande and 4 Others v. Mahiku A. Maharagande, Civil Application No. 496/01 of 2021 (unreported). The application before me, no doubt, does not fall under rule 11 (4). The applicant is asking the Court to stay the decree pending the determination of his application for extension of time after two previous applications were not heard on merit and there is no particular rule in place to address that matter. To make the matter even worse the respondent has sought the assistance of the High Court of Tanzania for an order of attachment and sell applicant's Trailers and Horses. Rule 4 (2) (a) and (b) of the Rules, therefore comes readily handy to address the injustice. The Court has already invoked this rule in similar circumstances. In Selcom Gaming Limited v. Gaming Management (T) Ltd and Gaming Board of Tanzania [2006] T.L.R. 200, the Court stated that where there was no provision governing an application for stay

of extension pending an application for revision, the Court could invoke rule 4 (2) (a) and (b) of the Rules to entertain such an application. Similarly, in Attorney General v. The Board of Trustees of the Cashewnut Industry Development Trust Fund and Another (supra), The Attorney General (the AG) was not a party to the case before the High Court where the Government money was attached in favour of 2n d respondent (Hammers Incorporation Co. Ltd). The AG filed an application for extension of time and an application for revision. It later lodged an application for stay of the execution under rule 4 (2) (b) and (c) of the Rules. Preliminary objection were raised by the 2n d respondent to the effect that the application for stay was incompetent as there was neither a notice of appeal lodged nor an appeal which has been filed. The Court firmly stated that it has the power to entertain the application under rule 4 (2) (b) and (c) of the Rules in the interests of justice. The interests of justice entail interests of both the judgment debtors as well as decree holders. Turning to the preliminary objection under consideration, I am of the firm view that the Court has jurisdiction under rule 4 (2) (a) and (b) to entertain the instant application in the interests of justice. Therefore, I find the preliminary objection raised has no merit and I hereby dismiss it. Costs shall abide the outcome of the application. The application for stay shall 8

therefore proceed for hearing and determination 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 r * R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL copy of the original.