ABDUL RAHMAN SELEMEEN ISLAM VS AFRICARRIERS LTD COMM REVIEW NO

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL REVIEW NO 3 OF 2018 BETWEEN ABDUL RAHMAN SELEMEEN ISLAM-------------------------------- APPLICANT VERSUS AFRICARRIERS LTD---------------------------------------------------- RESPONDENT RULING SONGORO, J This is a ruling on application for review filed by Abdul Rahman Saleman Islam the applicant, applying for a review of court ruling and order made in the Misc Commercial Application No 394 of 2017 on the ground that the court made an error by dismissing the application for setting aside dismissal order instead of making an order striking it out the application. In view of the above the applicant applies that an order dismissing the Misc Commercial Application No 397 of 2017 be set aside and the court makes an order of striking out the application. . Thus when the review was fixed for hearing, Mr. Abubakari Salum, Learned Advocate appeared for the applicant, and Mr. Ngassa Ganja Learned Advocate appeared for the Respondent. To start with Mr. Aboubakary Learned Advocate of the applicant, informed the court that the applicant filed a Misc Commercial Application No 394 of 2017 Page 1 of 6 and it was objected by Respondent on the ground that it cited wrong provision of the law. Therefore, when Misc Commercial Application No 393 of 2017 was called for hearing Mr. Hassan Mlosi the applicant counsel conceded to a preliminary objection and was dismissed instead of being struck out. The counsel then explained that the preliminary objection which Mr Haji Mlosi which conceded was that there was wrong citation in the application, in that regard the court was supposed to make an order of striking of the application, but it erroneously made an order dismissing the application. The counsel then indicated that since the court has powers to review its own decision, applicant counsel applied that an order dismissing the application be set aside and an order of striking application be imposed. To support his argument, Mr . Aboubakary drew the attention of the court to a decision between Edward Robert Moring aliases Kadogo Versus Republic Criminal Application No 9 of 2005 CAT where it was decided that the court has inherent powers to review its decision if there is an error on the face of the record. Mr. Aboubakary then maintained and prayed that Mr. Haji Mlosi having conceded to an objection of wrong citation of the law in Misc Commercial Application No 393 of 2017 the appropriate remedy was for the court to make an order striking out the application rather than order dismissing the application. Responding to the application for review and presented submissions, Mr. Ngassa Ganja Learned Advocate of the Respondent took another view and explained to the court that Mr. Aboubakary is misleading the court because the record shows that in Misc Commercial Application No 393 of 2017 there were two preliminary objection on points of law. The first point of objection was under Law of Limitation Act Cap 89 fR.E 2002] that the application was time barred. The second preliminary Page 2 of 6 objection on point of was on wrong citation of the relevant and enabling provisions of the law to entertain the application. The Respondent's counsel then submitted that the prayer which was also raised in two preliminary objection was for the dismissal of the suit. He insisted that there was no prayer for striking the application. Mr. Ngassa then informed the court that after Mr Haji Mlosi conceding objections raised the court made an order of upholding the objections raised and dismiss Misc Commercial Application No 393 of 2017 as prayed in the preliminary objection. The counsel then indicated that Section 3 of the Law of Limitation Act expressly states that proceedings filed after the expiry of the period of limitation has to be dismissed, therefore there was no any error which was committed by the court, so he prayed that an application for review be dismissed for lack of merit In his rejoinder, Mr Aboubakary for the applicant replied that the respondent's claim that there were two preliminary objection but the court order does not depict if there were two preliminary objection on points of law. But the court may review its previous order show if there were two preliminary objections on point of law. So he prayed to the court to revise its order so that the applicant may know which cause of action to take. The court has considered the applicant application for review along the points raised by both parties and find it is true Abdulrahaman Salemeen Islam the applicant on the 12/12/2017 filed a Misc Commercial Application No 394 of 2017 to set aside Ex-Parte Judgment and Decree passed by this court on 13/11/2017. In response to the Misc Commercial Application No 394 of 207, Africarriers Limited the Respondent filed two preliminary objections on points of law. The Page 3 of 6 objection raised were (a) the application was time barred, (b) The court have been wrongly moved for wrong citation relevant and enabling provisions of law. Thus the court record shows on the 1/3/2018 when Mr Haji Mlosi Learned Advocate appeared in court he indicated that having considered the preliminary objections which were raised he is conceding to the objection. In that respect, the court went ahead and dismissed the application as prayed in the objection. After careful review of the statement made by Mr Haji Mlosi that he concede to the preliminary objection, definitely his statement was referring to two objections and prayers attached to the objection raised. And as pointed by Mr Ngassa once one concede to the objection that the application is time barred, the legal consequences are stipulated under Section 3 of the Law of Limitation Act Cap 89, [R.E 2002]. In deed Section 3 of Cap 89 provides "Subject to the provisions ofthis Act, every proceeding described in thefirst column ofthe Schedule to this Act and which is instituted after the period oflimitation prescribed therefor opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence". So under the provision of section 3 (1) of the Law of Limitation Act cited above, if the proceedings are instituted after the expiry of the period of limitation, legal consequences are stipulated by law is that the proceedings has to be dismissed. That is exactly the court did in in its order dated 1/3/2018 On the submission of Mr, Aboubakary that the objection was on wrong citation of the law, I agree with Mr. Ngassa that the applicant counsel by making such statement, it was his intention and calculation to mislead the court, because the court record loudly states that there were two preliminary objections on points of law which were raised and one was application was time barred and the second was on wrong Page 4 of 6 citation of the law. Mr. Mlosi conceded to both preliminary objections and the order which was for which was dismissal of the application. In my view it was not necessary after hearing the respondent counsel conceding to the objections raised for the court to make orders on each and every objection raised which was conceded. The court find when application is time barred, it has no option is supposed to dismiss it and that is what happened, it will be superfluous to make another finding and order that the same application which stand to dismissed has wrong citation and is supposed to be stuck out, because the second order striking the application will be superfluous and will have no legal consequences. So the only order which was befitting was to make on applicant application which was time barred was for dismissal of the application. In the final analysis after the review of the proceedings Misc Commercial Application No 394 of 2017 I find the court order dated 1/3/2018 was on the first preliminary objection on point of law that the application was time barred and it stand to be dismissed as per the court order dated 1/3/2018. So the review partly succeed to the extent that the objection which lead to dismissal of the suit is that the application was time barred. Each party to bear his own costs. Dated and Delivered at Dar es Salaam on this 12th day of July 2018 Page 5 of 6 The Ruling was delivered in the presence of Mr Haji Mlosi Learned Advocate of the Applicant and Mr, Gwakisa Sambo, Learned Advocate holding a brief of Mr. Ngassa Ganja, Learned Advocate of the Respondent. Page 6 of6