20090216 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 146 OF 2008 CONSOLIDATED HOLDING CORPORATION (APPLYING AS A SUCCESSOR IN TITLE TO PRESIDENTIAL PARASTATAL REFORM COMMISSION).•••••••.•••• APPLICANT VERSUS DUNIA WORLD WIDE TRADING COMPANY LTD................................ 1 ST RESPONDENT BUNDA OIL INDUSTRIES LTD.................. 2No RESPONDENT (Application from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Luanda, J.) dated the 7 th day of November, 2007 in Commercial Case No. 43 of 2006 RULING 16 February, 2009 MUNUO, J.A.: Dr. Lamwai, learned advocate-for the··--i st Respondent, assisted It' by Mr. Kamara, learned advocate, raised a preliminary objection to the effect that the present application is incompetent in that the applicant, the successor of the Presidential Sector Reform 2 Commission (PSRC) which was disestablished by law on the 1st December, 2007, has not been brought on record in substitution of the PSRC. In that regard, it is premature for the applicant to pray for extension of time; it can do so after being brought on record, counsel for the 1st Respondent urged. Counsel for the 1st Respondent conceded that prayers ( 1) and (2) in the Notice of Motion filed by the applicant be granted. Mr. Kalolo Bundala, learned advocate for the 2nd Respondent, opined that Civil Application No. 140/2008, even though filed before the present application, is problematic because it was instituted against the defunct PSRC which means the present application for extension of time ought to be determined on merit in any event. Mr. Fungamtama, learned advocate for the applicant argued that the application for extension of time is properly before the Court because although Mr. Kilindu, learned advocate f6rthe applicant~ was duly served with the Notice of Motion for Civil Application No. 140 of 2008, he did not file the present application to circumvent the said 3 _application so t_he _prelin:_1inary o_bjec!ion on extension of time should be overruled. Mr. Kamara, learned advocate for the applicant countered that the present application is intended to'circumvent Civil Application No. 140 of 2008 because the said application was filed on the 30th September, 2008 before the present application was instituted on the 30 th October, 2008. Mr. Kilindu who was representing PSRC and is also appearing for the applicant, was aware of Civil Application No. 140 of 2008, Mr. Kamara urged. He prayed that the preliminary objection on the prayer for extension of time be upheld. The issue is whether the objection on extension of time has merit. There is no dispute that Civil Application No. 140 of 2008 was filed on the 25th September, 2008 per annexture C to the Affidavit in . ~ . Reply, whereas the present application was instituted on the 30th October, 2008 per the documents in the record. Mr. Fungamtama conceded that Mr. Kilindu appeared for PSRC in Civil Application No. ... "' 1 t rF~ 1 5 (unreported) at Page 8 wherein the Court held that where a preliminary objection has been raised, the other party cannot file another objection to pre-empt the said preliminary objection. In view of the above, I am of the settled mind that the applicant, through his counsel, Mr. Kilindu, was aware of the existence of Civil Application No. 140 of 2008 but proceeded to file the present application in order to circumvent the former application. Hence I sustain the preliminary objection on extension of time. I accordingly grant prayers (1) and (2) in the Notice of Motion. The prese_nt applicant to be brought on record in substitution of the PSRC as prayed in the Notice of Motion. As the application succeeds on the (1) and (2) of the Notice of Motion, and the preliminary objection on extension of time also succeeds, either party shall bear their costs for this application. DATED at DAR ES SALAAM this 16th day of February, 2009. E.N.MUNUO JUSTICE OF APPEAL 6 -- · - I certify thatthis is a~troe copy of the ~original.- . •-.ot: .., ;:,~%(f;j r ,I 'l ~~-: ~-.~~~;:~· .I' . ·".5~½?~:- / I:' .'--.i~~:?~~-