exim bank t ltd vs sai energy logistics services ltd 2022 tzhccomd 327 17 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL APPEAL NO. 2 OF 2022 (Arising from Iringa Resident Magistrate Court Civil Case No. 4 of 2016) BETWEEN EXIM BANK TANZANIA LIMITED ……… APPELLANT VERSUS SAI ENERGY & LOGISTICS SERVICES LIMITED………………………RESPONDENT Last order: 13th September, 2022 Date of Ruling: 17th October, 2022 RULING NANGELA, J. This Appeal arises from a Judgment and Decree of the Iringa Resident Magistrates Court by Hon A.R Mwankejela, RM, in Civil Case No. 4 of 2016 delivered on the 1st day of November, 2021. The Appeal was brought before this court by way of a Memorandum of Appeal filed under Rules 69 and 70 of the High Court (Commercial Division) Procedure Rules, of 2012 as amended by GN.NO.107 of 2019. The appellant relies on nine (9) grounds of appeal, and pray that this Honorable Court be pleased to order as follows: Page 1 of 16 i. That, this Appeal be allowed. l ii. That, the decision, Judgment, decree and orders of Iringa Resident Magistrate’s Court be nullified. iii. That, the Appellant be granted the orders sought on the basis of the weakness of the Judgment of Iringa Resident Magistrate’s Court because the Appellant bank correctly deducted the amount of TZS. 4,807,500.00 as upfront documentation and facilitation fee on the loan applied by the Respondent. iv. That, a finding be made to the effect that the Appellant’s rightly deducted the sum of TZS. 4,807,500.00 as upfront documentation and facilitation fee on the loan applied by the Respondent, which was 0.75% accepted by the Respondent on the loan amount of TZS. 641,000.000, Page 2 of 16 upon cancellation of the loan application by the Respondent. v. That, the Appellant be granted the costs of this Appeal and the proceedings in the Court below; and, vi. Any other or further reliefs that the Honourable Court may deem fit to grant. The Respondent contested the Appeal, and raised three preliminary objections against continued hearing and determination of this Appeal. The three objections were to the effect that: (1) The appeal is incompetent since it is accompanied with a defective decree for it being not dated and showing as to when it was extracted. (2) That the Appeal before this Court has been filed out of time. (3) That, this Court lack jurisdiction to entertain this appeal. Page 3 of 16 On the 11th day of August 2022, the parties appeared before me for the hearing of the preliminary objection raised by the Respondent. In terms of representation, the Appellant enjoyed the services of Mr. Jovison Kagirwa, learned advocate, while Mr. Makarious Tairo and Mr. Mussa Mhagama learned advocates, represented the Respondent. The hearing of the preliminary objections was agreed upon to be by way written submission, a prayer which I readily granted. A scheduling order was given and I am gladly the order was complied with and, hence, this ruling of this Court. I will summarize the parties’ submissions and consider them in light of the applicable legal principles and/or provisions. In his submission in support of preliminary the objections, Mr. Benedict Magoto, who filed the submission in support of the Respondent’s objection, commenced his submission by abandoning the 1st and 3rd objections and addressed the 2nd objection. In his submissions, he contended that, it is no dispute that, the Appellant having been aggrieved by the decision of Page 4 of 16 Iringa Resident Magistrate delivered on 30th September, 2021 wrote a letter requesting for the copy of judgment and decree and it was filed in court on 6th October,2021. According to him, the judgment and decree was certified and ready for collection by the parties on 30th September 2021. In his views, in line with section 19 (2) of the Laws of Limitation Act Cap 89 R.E 2019, the day for computing when time limit starts to accrue is on the date of certification. Mr. Magoto submitted that, the Appeal before this Court was filed on 9th March, 2022, that is to say 4 months from the date of certification of the judgment on 30 th September 2021, and, hence, making it to be one filed out of the prescribe time within which an appeal from the subordinate court to the High Court is to be filed. Besides, Mr. Magoto relied on Rule 70 (1) of the High Court (Commercial Division) Procedure Rules, 2012 for which it is stipulated clearly that, appeals have to be filed in Court within 30 days. It was Mr. Magoto’s submission that, according to Rule 70 (2) of the High Court (Commercial Division) Procedure Rules, 2012, the mandatory documents Page 5 of 16 that needs to accompany the Memorandum of Appeal, as per requirement of the law, were the judgement and decree of the Court only. To summarize his submissions, it was Mr Magoto’s view that, in the circumstance and given that the Appellant’s time to file this appeal commenced to run on 30th September 2021 when the mandatory documents to file an appeal were ready for collection, that is to say the judgment and decree, the appeal was filed out of time and not otherwise. In view of that, he contended, as the consequence of filing an appeal out of time, that, the same should be dismissed if one takes into account what section 3 (1) of the Law of Limitation Act provides. To back up his submissions further, reliance was put on the Court of Appeal decision in the case of East African Development Bank vs Blueline Enterprises Limited Civil Appeal No. 101 of 2009 CAT at DSM (unreported), in which the Court of Appel was of the view that, if an appeal or application is instituted outside the prescribed time the same shall be dismissed. Page 6 of 16 In view of the above submissions, he urged this Court to dismiss this appeal for having been filed out of time and without first obtaining the leave of the Court to do have it filed. In his reply submission, Mr. Kagirwa, the learned Advocate appearing for the Appellant, submitted that, the gist of the Respondent’s submission rests on the applicability of section 19 (2) of the law of Limitation Act. In his views, Mr. Kagirwa submitted that, the Respondent’s submissions are erroneous. He contended that. It will be erroneous to state that, what needs to be excluded, is the period which starts from the date when the Appellant requested to be supplied with copies of judgment and decree to the date when the same was supplied to the Appellant. He contended, therefore, that, the Respondent’s main contention was that, the “proceedings” are not among the key documents for institution of an appeal. Submitting in opposition, however, Mr. Kagirwa submitted that, the Law of Limitation is a general law which provides for general principles in accrue of the right to institute an action, application, or appeal. He was of the view that, as a general law, the principles of statutory Page 7 of 16 interpretation are to the effect that, where there is a general law and a specific law applying on the same matter, the general law must give way to the specific law. He drew inspiration from the case of NBC Holding Corporation and another vs. Agricultural & industrial Lubricant Supplies Ltd and 2 others Civil Application No. 42 of 2000, and Edesius Mwinuka and another vs. Patrick B. Mgaya Land Appeal No. 18 of 2020. In both of these two cases, it was made clear that, when there is specific law or Rules on the certain matter as on the time, the Law of Limitation does not apply to those cases but, rather the specified laws. As such, Mr. Kagirwa submitted that, this appeal before this Court was filed under the High Court (Commercial Division) Procedure as amended 2019, hereafter referred to as the Rules. Mr Kagirwa submitted that, it is beyond doubt that the present appeal before this Court is regulated and governed by the Rules and, that, the law of limitation applies where there is a lacuna on issues pertaining to time frame and not otherwise. He submitted that, it is Rule 69(1) (2) of the High Page 8 of 16 Court (Commercial Division) Rules, which provides for jurisdiction of this Court to entertain an Appeal from subordinate Court. He contended, and correctly so, that, under Rule 60(2) an appellant should give a notice of appeal in the manner provided for under the schedule, which is Form No.5 and within 14 days. He submitted that, there is no dispute that the impugned decision was delivered on 30 th day of September 2021 and, that, the notice of appeal was filed on the 6th day of October 2021. According to Mr. Kagirwa, this was a span of seven days after the impugned decision was delivered on 30 th September 2021 and, hence, was in compliance with rule 69 (4) of the Commercial Rules. He contended further that, a letter requesting for copies of proceedings, judgment and decree was also lodged in Court and served to the Respondent and, that, the requisite record of proceedings was certified on 7th March 2022, after the reminder letter from the Appellant dated 21st day of February 2022. He submitted that, a Memorandum of Appeal was filed in Court on 9th March 2022, two days after the receipt of the Page 9 of 16 certified of proceedings. Mr. Kagirwa maintained a view that, the memorandum of appeal was filed pursuant to Rule 70 (1) of the Commercial Rules which requires the memorandum of appeal to be filed within 30 days from the date when the appellant was notified that the necessary documents are ready for collections. He contended that, the necessary documents referred to under Rule 70 (1) of the Rules includes the proceedings and, hence, the Respondent contentions which seem to be excluding the record of proceedings from the documents required, are misconceived and run contrary to what rule 69 (5) of the Commercial Rules which provides. He submitted, therefore, that, the rule requires copy of certified proceedings to be attached during the lodging of an appeal and, that, such a position is contrary to the Respondent argument that, only the judgment and decree are required when one lodges an appeal to this Court, a fact which he cosinders to be a total misconception of what the rule stands for. Mr. Kagirwa submitted further that, the Rules require the trial Court to inform the Appellant and Court vide Form Page 10 of 16 No. 6 and, in the absence of that Form, the Court will take cognizance of the date when the proceedings were certified by the court to be the date of notification. According to Mr. Kagirwa, the provision of Rule 70 (2) of the Rules cannot be ready in isolations but must be ready together with rule 69 (2) (4) (5) and rule 70 (1) which referred to the rule 69 as 69 (5) and (6). The rule required the Court to prepare and make available certified copies of proceedings, judgment and decree. That is to say, the submissions by the Respondent that the only requirements are judgment and decree are farfetched and unsupported by the Rules, Mr. Kagirwa so contended. He as well distinguished the cases cited by the Respondent’s counsel arguing that, the same have nothing to do with the case at hand because they only deal with the consequences of filing an appeal or application out of prescribes time, which he argues, is not the issue at hand. Mr. Kagirwa submitted further, that, even section 19 (2) of the Law of Limitation Act as cited by the Respondent, demonstrate that, it is necessary to attach the proceedings of the impugned decision on lodging the appeal. He Page 11 of 16 contended that, the law itself also exclude the period of time required for obtaining a copy of proceedings for the current appeal. He urged this Court, therefore, to overruled and dismiss the preliminary objections with costs. I have carefully and objectively examined the submissions filed in this Court for and against the preliminary objection. At the root of the matter is whether the certified copy of proceedings is among the documents necessary for institution of an appeal to this Court as per section 69 (5) (6) of the High Court (Commercial Division) Procedure Rules as amended 2012, and, if not, whether this appeal was instituted out of time. In the first place, let me state that, as a matter of principle, it is an agreeable fact that, the Rules applicable to this Court governs the time limits for the filing of an appeal from a subordinate Court to this Court. Secondly, it is also an agreeable principle of law that, the law of limitation is a general law and where a specific law has prescribed for the time limits within which a particular action should be done or accomplished, the specific law or provision will take precedence of the general Page 12 of 16 law. See the case of Matrida Aloyce Mgeni vs Ezekia Amosi and Another (Misc. Land Application 11 of 2019) [2020] TZHC 1872 (05 June 2020). According to Rule 70 (1) of the Rules of this Court, an appellant is supposed to lodge his/her Memorandum and grounds of appeal in Court within 30 days from the date of receipt of the notification issued under Rule 69, unless otherwise ordered by the Court, and the Memorandum shall be accompanied with a copy of a decree and judgement appealed against. I find it pertinent as well, that, for ease of reference, I should cite at length, what Rule 69 (5) and (6) of the High Court (Commercial Division) Procedure Rules, which refers to the notification of completeness of the relevant documents in respect of which an appeal is to be based. The said provisions provide as here under: “69. -(5) the subordinate court from which intended appeal originates shall, upon receipt of the Notice of appeal and upon the payment of prescribed fee, supply to the appellant certified copies of the proceedings, judgment, ruling, decree or order as the case may be. Page 13 of 16 (6) As soon as the certified copy are ready, the subordinate court from which the intended appeal originates shall notify the appellant and respondent in Forms No. 6 set out in the schedule that the documents are ready for collection upon payment of prescribed form.” Considering the above provisions, I have looked at the documents which includes the copy of proceedings and I find that, the proceedings bear a certification stamp dated 07th February 2022. It means, therefore, that, they were certified on that date and not on 07th March 2022 as averred by Mr. Kagirwa. On the other hand, the Memorandum upon which this Appeal stands, was filed in this Court on the 9 th of March 2022. The Appellant, however, has not stated when he was notified that the documents were ready, as per Rule 69 (5) and (6) of the Rules, having been certified on the 07th of February 2022. Be that as it may, I will take it that, the same was done immediately after certification since that is the requirement of the provision. Rule 69 (6) provides that “as soon as the Page 14 of 16 certify copies are ready” suggesting that, the notification will be prompt on that date and the counting will run. If that is the scenario, which I believe it is, even if a copy of proceeding is one of the documents necessary to institute an appeal before this Court, the fact remains that, the Appeal was instituted out of time. This is because, as per the record it shows that the proceedings were certified on 7/2/2022 and not 7/3/2022 and, the Memorandum of Appeal was filed in this Court on 9/3/2022. In reality, therefore, the current appeal at hand ought to have been filed lately on the 08 th March 2022, failure of which, a leave of the Court to extend time for the filing of this appeal ought to have been obtained. From the foregone discussion and since the Respondent abandoned points number one (1) and three (3) of the preliminary objections he earlier raised, I find that the objection has merit and I will proceed to uphold it. This Court, consequently, settles for the following orders: 1. That, upon scrutiny, I find that the current appeal was filed belatedly and, there being no leave of Court to that effect, the preliminary Page 15 of 16 objection raised by the learned counsel for the Respondent has merits and I hereby uphold it. 2. That, the Appeal is hereby struck out with costs. It is so stated. DATED AT DAR-ES-SALAAM, THIS 17th DAY OF OCTOBER 2022 ......................................... DEO JOHN NANGELA JUDGE Page 16 of 16