20151216 TZHC Dar es Salaam

-· : c;: . g _ , ,, .I-~ ·4 IN THE COURT OF APPEAL OF TANZANIA t • AT DAR ES SALAAM t. t (CORAM: KILEO, J.A., MMILLA, J.A. And JUMA, J.A.) CIVIL APPEAL NO. 69 OF 2013 MOHAMMED ENTERPRISES (T) LTD ......................................... APPELLANT VERSUS CMA CGM TANZANIA LTD ..................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Bukuku, J.) dated the 15th day of May, 2013 in Commercial Case No. 16 of 2011 - RULING OF THE COURT __ 7 th & 16 th December, 2015 KlLEO, J.A.: Mr. Bernard Mbakileki learned advocate, appeared before us to argue a Notice of Preliminary Objection to the appeal by Mohamed Enterprises Ltd. which he filed on behalf of the respondent on 9/1/2014. The appellant was represented at the hearing of the Notice of Preliminary Objection by Dr. 1asumbuko Lamwai and Mr. James Bwana, learne.d advocates. Basically, Mr. Mbakifeki submitted that the appeal is not maintainable because the appellant did not file a written submission- pursuant to rufe 106 1 r • . i .._not 'susta'inable as it was not a pure point/of law._ He pointed out that the 1: II consequences of non-compliance with rule 1:106 (1) of the Court Rules are to I' be found in sub rule (9) which confers a diiscretion on the Court to dismiss I an appeal. The learned counsel; in the cirfumstances of the cas~ asked us i to allow the appellant to file a formal appli<t3tion for extension of time to file • 11 ,, the written submission. In support of the p~ayer Dr. Lamwa;i referred to rule 2 of the Court Rules which enjoins the Cou,:t to have due regard to the need .to achieve substantive justice in· any partiLla~ case. The learned counsel i . . also referred to the decision of this Court in/Leonard Magesa versus M/S I . - OLAM {T) Ltd. Civil Application No. 117 of 2014 (unreported) where the Court after it had heard a preliminary objection on failure to comply with I I I Rule 106 (1) of the Court Rules allowed th~ appellant (who was a layman) I to file a formal application fqr extension of time to file a written submission. The Court, in· this case like in the Mechmar1 case observed that it is the set I I of circumstances in each case that wbuld I determine which order . I the Court would give. (Emphasis providJd). . i ~ 1: . The matter need not detain us. Having given it due consideration we i . I . are of the settled mind that even if the Notice of Preliminary Objection was i not sustainable, there is no material before the Court that would justify the I: 1: 3 ' . , not 'susta'inable as it was not a pure point of law. He pointed out that the . ·~ . " consequences of non-compliance with rule 106 (1) of the Court Rules are to be found in sub rule (9) which confers a discretion on the Court to dismiss an appeal. The learned counsel, in the circumstanc€s of the case asked us . " to allow the appellant to fite a formal application for extension of time to file . . the written submission. In support of the prayer Dr. Lamwai referred to rule 2 of the Court Rules which enjoins the Court to have due regard to the need to achieve substantive justice in any partioular case. The learned counsel · also referred to the decision of this Court in Leonard Magesa versus M/S OLAM {T) Ltd. Civil Application No. 117 of 2014 (un·reported) where the·· Court after it had heard a preliminary objection on failure to comply with Rule 106 (1) of the Court Rules allowed the appellant (who was a layman) to file a formal application fqr extension of time to file a written submission. The Court, in· this case like in the Mechmar case observed that it is the set of circumstances in each case that would determine which order the Court would give. (Emphasis provided). The matter need not detain us. Having given it due consideration we are of the settfed mind that even if the Notice of Preliminary Objection was not sustainable, there is no material before the Court that woufd justify the 3 ... ~· , . exercise of the Court's discretion under Rule 106 (9) or (19) of the Court Rules in favor of the appellant. Dr. Lamwai asked us to invoke rule 2 of the Court Rules to grant his prayer for extension .of tim_e to file the written submission. We think to yield to Dr. Lamwai's suggestion in the circumstances of this partiq.1lar ·case would be dangerous as it would water down the mandatory duty Rule 106 (1) imposes on applicants and appellants, to file their written submissions, within sixty days after lodging the record of appeal or filing the notice of motion. In the circumstances we find that the appeal as it stands before us is - not maintainable and for this reason we strike it out. Given the circumstances of the case we give no order as to costs. ··DATED at DAR ES SALAAM this 08 th day of December, 2015. E. A. KILEO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original.. ----·--·· ... -- IZU PUTY REGISTRAR COURT OF APPEAL 4