Global Agency v Lonagro PO on Jurisdiction

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 26393 OF 2024 GLOBAL AGENCY LIMITED………………………..……..…………… APPLICANT VERSUS LOGRO TANZANIA LIMITED………………….……………….…… RESPONDENT RULING December 2nd, 2024 & March 28th, 2025 Morris, J The present application was filed for orders of this Court to stay execution of decree of the Resident Magistrate’s Court of Dar es Salaam in its Commercial Case No. 20 of 2023. Nevertheless, on 04.11.2024 the respondent raised a preliminary objection (PO) on two points of law. Firstly, that this Court has no jurisdiction to determine the applicant’s application; and secondly, the application is improper for failure to attach judgment and decree intended for stay of execution. The PO was argued by way of written submissions. In support and opposition of the PO the parties were respectively represented by Mr. Mbuga Emmanuel and Ms. Pendo Charles, both learned counsel. 2 With regard to the first limb of PO, the respondent argued that this application was been brought out of time. To account for his stance, he submitted that the execution proceedings were lodged in May,2024 while this application was lodged on October, 2024 which is more than 4 months. To him, the applicable law in this respect is item 21 of Part III of the Law of Lim itation Act , Cap 89 R.E. 2019 (the LLA ) which requires applications of this nature to be filed within 60 days of filing the execution proceedings. He also maintained that the timeframe is two months because the Civil P rocedure Code , Cap 33 R.E. 2019 (the CP C ) does not provide for time limit within which to file such application. He thus, cited the case of George Katabi v M ashauri W ilson Ntizu , Civ. Appeal 2 of 2022 (unreported, at page 7), on the position that 60 days’ time limit applies to an application for stay of execution as provided under item 21 of Part III of the LLA . And that, the time starts to count from the date the application for stay of execution is filed and served to the judgment debtor. On this regard, he further maintained that this Court is not vested with jurisdiction to entertain the application at hand since the same was 3 lodged out of time without leave of this Court. For that reason, he prayed for dismissal of this application with costs. On the other side, the applicant’s counsel conceded to the PO in terms of the application at hand being time barred. As such, she prayed for the same to be struck out with no order as to costs. In his own untruncated words, he submitted as below. “Upon going through application, counsel for applicant has discovered that application is bad in law for being out of time basing on this, the counsel for the applicant has no objection on preliminary objection raised by the respondent on the issue of time. We hereby concede with the Preliminary objection and we pray that this matter be struck out with no order as to cost.” Under the circumstances and for reasons that will become apparent in due course, I will first determine this ground of PO without embarking on the remaining one. I have considered the application at hand and the arguments by the parties’ counsel. It is apparent herein that, there is no dispute that the respondent has raised an objection that the present application has been filed out of time under the LLA . That is, as opposed to time provided under item 21 thereto, same was filed more than four (4) months from the date of filing the execution proceedings. 4 To the respondent, application was brought under the CP C hence the governing law is in terms of time limitation is the item mentioned above since the CP C is silent on this aspect. That being the case, under the said item the application at hand was supposed to be filed within 60 days from the date when the application for execution was filed. She thus prayed for dismissal of the application with costs. This ground of PO was entirely conceded by the applicant save for the consequences that may befall this application. To him, the appropriate remedy was to strike it out without costs. Obviously, the respondent was for the opposite reliefs – dismissal of the application with costs. I have considered this undisputed fact and the law regarding the time line for these proceedings. I am in agreement with the parties that, the application is time barred. However, the only issue for determination is the consequence of this time-barred application. Under section 3 of the LLA , the effect of proceedings instituted after the period of limitation is dismissal. In the premises, this application is dismissed for being time barred. Considering the fact that the PO was raised at earliest stage and the applicant conceded to it, each party shall bear own costs. 5 It is so ordered. C.K.K. Morris Judge March 28th, 2025 Ruling delivered this 28th day of March 2025 in the presence of Advocate Hance Mrindoko for the respondent also holding the brief of Advocate Pendo Charles for the applicant. C.K.K. Morris Judge March 28th, 2025