Hydrox Industrial Services and Another vs CRDB (1996) Ltd and 2 Others (Civil Application No. 182 of 2012) [2013] TZCA 2275 (11 October 2013)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CML APPLICATION NO. 182 OF 2012 HYDROX INDUSTRIAL SERVICES AND ANOTHER ............. APPUCANTS VERSUS ---(2) ANGELO PASTORY-MU~A .................. ~. RESPONDENTS (1) CRDB (1996) LTD · } (3) OLDONYO LENGAI AUCTION MART {Application for extension of time to file an application for stay of execution from the decision of the High Court of Tanzania at oar es Salaam) (Muruke, J.) dated the 17 th day of October, 2011 in Civil case No. 194 of 1999 RULING 16 th September, & 18 th October, 2013 MJASIRI, J.A.: In this application, the applicant Hydrox Industrial Service Limited and Another are seeking extension of time within which to file an application for stay of execution of the judgment and decree of the High Court of Tanzania at Dar es Salaam (Hon. Muruke, J) dated 1ih October, 2011 in Civil Case No. 194 of 1999. 1

! /, I i l ! i l ; l ! ~ J t i I i I i ! The first and second applicants are repr€sented by Mr. Respicius Didace learned advocate while the first respondent had the services of Mr. Daimu Halfanf · learned advocate. The third and fourth respondents were absent although they were duly served with the notice of hearing-. The-Court proceeded with the ·application under Rule 62(2) of the Court Rules in view of their absence. When the application was called on for hearing, Mr. Halfani raised a preliminary objection on a point of law a notice of which had been lodged earlier in terms of Rule 4(2) (a) and (b) of the Court of Appeal Rules 2009 (the Court Rules). The preliminary objection reads as follows: "This application is incompetent for failure to comply with the law on the requirement of presentation of written submission within the prescribed time'~ Mr. Halfani on his part, submitted that the applicant has failed to file written submissions within the prescribed time. No sufficient reasons have been advanced by the applicant for failure to comply 2

.. . \ I . I . ! ~ ' with Rule 106(9) of the Col,lrt Rules. He therefore asked the Court to I dismiss the application. Mr. Didace on his part, submitted that failure to file written submissions should not necessarily result in the dismissal of the application. He stated that there are several decisions of this Court where the Court used its discretion not to dismiss the application and/or appeal for failure to file written submissions. He relied on the decisions of this Court in KHALID MWISONGO v M/S UNITRANS (T) LIMITED, Civil Appeal No. 56 of 2011 CAT and AFRICAN DEVELOPMENT BANK v EAST AFRICAN DEVELOPMENT BANK AND ANOTHER, Civil Application No. 122 of 2010 CAT (both unreported). Rule 106(9) of the Court Rules provides as under: - "Where the appellant files the record of appeal or lodges the notice of motion/ and fails to file the written submissions within sixty days prescribed under this rule and there is no application for extension of time within which to file the submissions, the Court may dismiss the appeal or application'~ 3

~ s ii .: ;J It is evident from the wording of Rule 106(9) that the Court has ,, ii discretion to exercise its powers under the said Rule. The Court also ,I J has discretion under Rule 106(19) to waive the compliance with the ] :! provisions of Rule 106(9) as far as they relate to the preparation and ' the filing of written submissions. See for instance KHALID MWISONGO AND AFRICAN DEVELOPMENT BANK cases (supra). In view of the fact that failure to file written submissions does not prejudice the case of either"party and given the judicial discretion to the Court in the exercise of its powers under Rule 106(9) of the ,i' J ~ Court. Rules, I am of the dortsidered view that the preliminary .. objection is devoid of merit. Consequently the preliminary objection is ,. ,.C)'_ hereby dismissed with costs. It is s"d ordered. ; DATED at DAR ES SALAAM this 11 th day of October 2013. -- 5. MJASIRI JUSTICE OF APPEAL . I. certify that this is a true copy of the original. "" ,A . ==-== ===~ :,..:..:. '-':= =--::..::: ..:..;= :.:....= -=---=.:;.:a...:::.;;.;; .

• ,.- ___ ... - ........ DEPUTY REGISTRAR COURT OF APPEAL 4