glenrich transportation co limited vs faw africa investment co limited 1500 tzhc 1 19 may 1500

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF DAR ES SALAAM AT PAR ES SALAAM CIVIL CASE NO 119 OF 2017 GLENRICH TRANSPORTATION CO. LIMITED................. PLAINTIFF VERSUS FAW AFRICA INVESTMENT CO. LIMITED ..................... DEFENDANT Date of Last order and Ruling: 19/05/2023 RULING MAGOIGA, J. This ruling is on whether the defendant filing a notice of appeal to the Court of Appeal in relation to the ruling in Misc. Civil Application No 130 of 2019 for stay of the instant proceedings can halt this old backlogged suit scheduled for hearing today. When this suit was called on for hearing, Mr. Msuya learned advocate for the plaintiff prayed for ex-parte hearing of this suit for reasons that the statutory period provided for under the law, particularly, under Order VIII Rule 1(1) (2) (3) and (4) of the Civil Procedure Code [Cap 33 R.E. 2019] for the defendant to file written statement of defence has long elapsed. i Mr. Zaharan, learned advocate for the defendant conceded that it is true this suit, was on 09.05.2023 set for hearing today following the ruling of this court dated 05.04.2023 in Misc. Civil Application No.130 of 2019. However, Mr. Zaharan was quick to point out that, following that ruling, the defendant opted to challenge that decision by way of appeal and managed to file notice of appeal on 14.05.2023 which was dully served to the plaintiff on 25.05.2023. In the circumstances, he left the matter in the hands of the court to give guidance on the way forward. In reply Mr. Msuya conceded to have been served with notice of appeal but was quick as well to point out that, the notice of appeal is in respect of Misc. Civil Application No. 130 of 2019 which has nothing to do with the main suit and as such is not a bar for this court to proceed with hearing as prayed. The learned advocate cited two decisions; one, by the Court of Appeal in the case of TECHLONG PACKAGING MACHINERY LIMITED AND ANOTHER AND Vs. A-ONE PRODUCTS AND BOTTLERS LIMITED, CIVIL APPLICATION NO. 517 OF 2018 CAT DSM (UNREPORTED) and one by the High Court in the case of MOHAMED ABDILLAH NUR AND 3 OTHERS Vs. HAMAD MASAUNI AND 2 OTHERS, MISC. COMMERCIAL APPLICATION NO.15 OF 2022 HCCD 2 DSM (UNREPORTED) which underscore the point that for a notice of appeal to stay proceedings, same must have stemmed from the suit in question. Mr. Zaharan upon given chance to reply on the cases cited by Mr. Msuya, told the court that, he had no quarrel with the position that petition for making reference for arbitration and main case are two distinct matters. Having heard and considered less rivaling arguments for parties on this point, without much ado, I find the prayers by Mr. Msuya tenable in the circumstances we have here. I will explain. One, so far no dispute, no written statement of defence has been filed nor an application for extension of time to file one since the decision of this court in Misc. Civil Application No.130 of 2019 on 05.04.2023. Two, guided by the Court of appeal decision and this court's decision in the cases of TECHLONG(supra) and Nur (supra) cited which parties learned advocates have no issue in their holdings, this court find the notice of appeal filed has no correlation with the instant suit and same must proceed as prayed. Three, the attention drawn by Mr. Zaharan of the existence of the notice of appeal is noted but is of no help to halt the instant suit to proceed as prayed. 3 That said and done, I hereby order and grant the prayer for Mr. Msuya to proceed with ex-parte hearing of the instant suit as prayed. Order accordingly. Dated at Dar es Salaam this 19th day of May, 2023 4 I II S. M. MAGOIGA JUDGE 19/05/2023 4