CIV

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 910 of 2024 ORYX ENERGIES TANZANIA LIMITED (Formerly known as ORYX OIL COMPANY LIMITED)...................... APPLICANT VERSUS OILCOM TANZANIA LIMITED..................................................... RESPONDENT (Application for stay of Execution of drawn order of the High Court of Tanzania, at Dar es Salaam) fMaahimbi. 3.^ dated the 3rd day of May, 2024 in Miscellaneous Civil Application No. 27821 of 2023 RULING 19 November & 6th December, 2024 MURUKE. J.A: On 19th day of November, 2024 the respondent preliminary objections were upheld reason was to be delivered on 29th November, 2024 but adjourned to to-date 6th December 2024. The applicants filed present application for stay of execution of the Decree dated 3rd May, 2024 in Miscellaneous Civil Cause No. 27821 of 2023, between the parties herein, on 4th October 2024. Upon being served the respondent apart from filing reply affidavit, also filed Notice of Preliminary Objection raising three grounds namely: (i) The application (Reference & A pplication No. 202410040000910) lodged on 4 h October, 2024 is hopelessly tim e barred in view o f the O rder o f th is Court (Hon. B. S. Masoud, 3. A .) in C iv ilReference No. 6 o f2024d ated 3 d October, 2024; ( i) The application is incom petent and bad in law fo r being supported b y a N otice o fM otion and A ffid avit, which are en tire ly d iffe re n t from the N otice o fM otion and A ffid a v it which the Court, (Hon. B. S. Masoud, J. A .) in C iv ilReference No. 6 o f2024 dated 3 d O ctober 2024, had ordered to be adm itted; ( iii) The application is incom petent and bad in law as the sam e has been overtaken b y events follow ing the orders o f the H ig h Court dated 2 3 d October, 2024in A pplication fo r Execution No. 12491 o f2024between Oiicom Tanzania Ltd i/. O ryx Energies Tanzania Ltd & O ryx Energies SA which ordered the execution process to proceed. At the hearing of the application, the respondent who raised the Preliminary objections was represented by a team of three learned advocates namely: Messrs. Thobias Laizer, Anthony Mark, and Sabas Shayo. On the other side the applicant had the services of Mr. Gasper Nyika, also learned counsel. It was Mr. Laizer, who started the ball running by intimating to the Court that, in the cause of their submission in support of the Preliminary Objections raised, they will make reference to the Notice of Motion, affidavits in support and in reply, including some of the annexures attached to the said affidavits. In short it is only the pleadings that will be referred making reference to the decision of Ally Shabani and 48 Others v. Tanzania Road Agency and the Attorney General (Civil Appeal No. 261 of 2020) [2021] TZCA 243 (10 June 2021, TanzLII) and Moto Matiko Mabaga v. Ophir Energy PLC and 6 Others/ Civil Appeal No. 119 of 2021) [2021] "TZCA 599 (22 October 2021, TanzLII) where the Court insisted that, no preliminary objection will be taken from abstracts without reference to some facts in the plaint.. It was submitted by Mr. Laizer on first Preliminary Objection that, the exparte order of the single justice reversed the decision of the registrar and ordered admission of the applicant's application was not adhered too. The application th^t was rejected by the registrar on 10/06/2024 was the very application that was ordered to be admitted on 3rd October 2024. To the contrary, the applicants filed new application contrary to the Court's directive and renders the present application time barred. On the second Preliminary objection, it was submitted that , the applicant lodged new application dated 4th October,2024. Containing new facts different with what was contained in the rejected application namely: (i) Paragraph 2, 3, a t page 4 o f N otie o f M otion contains fa cts o f execution th at d id n o t e xist on l@ h June 2024 when the in itia i application was Wed. ( i) A t page 5 o f N otice o f M otion on the Interparte O rder there is repetition on the issue o f execution progress on 8^ O ctober 2024, it was not possibie to know and plead, fa cts th at were n ot in existence on 1CP June 2024. (H i) There is averm entregarding applicant having file d the reference regarding the decision o f the Court o f 3^ October, by Hon. M asoud, J.A . In totality the applicants did not comply with the order of the Court, dated 3 rd October 2024, insisted Mr. Laizer, while making reference to the case of Karori Chogoro v. Waitihache Merengo (Civil Appeal No. 164 of 2018) [2021] TZCA 281 (5 July 2021, TanzLII) on compliance of Court orders. Mr. Mark while supporting Mr. Laizer's submission', insisted that, the applicant's application having been filed on 4th October 2024, same contravenes Rule l i (4) of the Court of Appeal Rules 2009, as has been filed out of time prescribed, that requires application for stay execution to be filed within 14 days from when the applicant served with the Notice of execution or when became aware of the execution. What the applicant requested in the reference, .and what, the Court granted was the admission of their rejected initial application. The Court order allowing the reference and ordering re-admission of the applicant's application is not the licence for the applicant to file new application. Filing of new application is contrary to this Court order of re-admission of the application, thus the application is out of time insisted Mr .Mark. On the third Preliminary Objection, Mr. Sabas Shayo submitted that, application is incompetent as same has been overtaken by events, following the High Court order dated 23rd October 2024, in an application for Execution No. 12491 of 2024, as the High Court issued ruling granting the execution'to proceed by ordering: (i) G arnishee O rder N isi in respect o f 36 applicants Bank A ccount ( i) W arrant o f attachm ent and Prohibitory O rder in respect o f 31 landed property o f the applicant. ( iii) Appointing Court Broker to execute the sa id order whereas/ Mr. D eusdecfit Juvenary Kabunduguru trading Ss; (Freedom Path Tanzania Lim ited) as the court broker to enforce the orders. In view of the above order, execution has already proceeded. Therefore, there is nothing for the Court to stay. If the applicant, felt aggrieved with the said orders then they had a remedy either to pray before the High Court for the Court to lift attachment orders, or set aside the same. 5 in response, Mr. Nyika briefly submitted that: One: The application is not out of time, in accordance with the facts in paragraph 5 of the Notice of Motion and paragraph 19 of affidavit of Antonia Kilima in support of the Notice of Motion. The order of the Court by single Justice dated 3rd October 2024 reversing the registrar order was made under rule 14 (12) of the Rules which rule it imply that, the application should be filed a fresh. Two; Present application is not new. Issues raised on the facts featured at paragraphs 2 and 3 in the Notice of- Motion is a question of evidence that require the Court to go on investigations, cannot be basis of Preliminary Objection. Three; Suggestion that the applicant ought to have asked- to amend previous application not filing a fresh one, is not proper. If then paragraphs 2 and 3 in the Notice of Motion are improperly, then the Court can do away with the said para and the application can still stand. More so, the Court can apply overriding objectives principle by ignoring the same and proceed with the hearing of the application. Four; It is true that on 3rd ground of objection, that on 03/10/2024 High. Court ordered execution to proceed by, attaching properties and bank account of the applicant,.and on 6th November 2024 the High Court made further orders of attachment of shares, but, yet, execution not yet completed. In the end Mr. Nyika prayed to the Court to overrule the Preliminary Objection with costs. In Rejoinder Mr. Laizer directed the Court to the order of Honourable Masoud, J.A. on the word's admission of the former application, that was earlier rejected. Rule 14 (12) is on the registrar to re-admit the previous application rejected. Rejected application was filed on line 10/06/2024. What remained was admission and get the number. By filing new application on 04/10/2024 and adding new facts, it was irregular. Paragraphs 2 and 3 in Notice of Motion were not in existence in the rejected application that was ordered,to be admitted, thus they cannot be said pieces, of .evidence to be investigated because added paragraphs 2 and 3 assist the Court in concluding that, present application is new. Mr. Mark rejoined that; reference to Rule 14 (12) of the rules by single justice was to allow the application to be admitted and exclusion of time spent in Referece' to be excluded but not to file fresh application. Mr. Sabas Shayo insisted in rejoinder that, argument by Mr. Nyika that, execution not yet finalized and that this Court can interfere, it is not right. It is upon the applicant .to file application at the High Court to lift the attachment. In totality, the respondent's counsel prayed for the Preliminary Objections to be upheld. Having heard both parties1counsels submission my starting point will be order of the Court dated 3rd October, 2024 by Honourable Masoud, J.A. Same read as follows: "Having considered the reference in the lig h t o f the o ra l subm ission made b y Mr. N yika, I am sa tisfie d th at the application was m ade in w ritin g and is m erited because the reasons assigned b y the H onourable R egistrar in h is decision rejecting filin g o f the ap p licant's application fo r stay o f execution were, in m y view, beyond the scope o f h is adm inistrative m andate. Consequently, in term s o f ru le 14 (12) o f the Rules I reverse the decision and proceed to order admission of the applicant's application for stay o f execution o f a decree o f the H ig h Court which is subject o f Execution fto. 12491 as indicated in the reference a t hand" The above reproduce order, is very clear. "The underlined w ords to order admission o f the applicant's application for stay o f execution" of the decree of the High Court which is subject of the Execution No: 12491 does not need a second eye to see and grasp. Clearly what, the applicant ought to have done is to make follow-up with the registrar of the admission of their initial application rejected by registrar, that is the rationale behind referring rgle. 14-(12) for exclusion of time spent-during reference. The above Rule .has the'effect of excluding time passed during reference. In 8 essence the purpose of reference to a single Justice is a remedial procedural aimed at correcting registrar error, which single Justice correctly did and ordered admission of the applicant's application for stay of execution that was rejected by the registrar. The affidavit of Antonia Kilama Head of the Legal and Company Secretary of the 1st applicant in support of the application at paragraph 19 read as follows: "The application fo r stay o f execution o f the decree has been fiied p rom p tly because the applicants were served w ith sum m ons to appear on A pplication fo r execution on 7th June 2024 and on ICP1June 2024, the applicants lodged online its in itia l application fo r ■- sta y o f execution (in itia l application fo r sta y o f Execution). However, the Court refused adm ission o f the in itia l A pplication fo r sta y o f Execution which prom pted. The applicants to Hie reference against t h e ' decision refusing adm ission o f the In itia l A pplication fo r stay o f Execution and on 4P O ctober 2024, the Court issued its order on the In itia l A pplication fo r stay o f Execution -allow ing the A pplicants to file th e ir application fo r sta y o f execution before the Court". From the contents of paragraph 19 of the applicant's Principal Officer, the applicant became aware of the execution proceedings when served to 9 appear on 7th June 2024. Present application has been filed on 04 October 2024, being a period of almost 4 months,.contrary to Rule 11 (4) of the rules that provides for 14 days from when served or became aware of execution proceedings. It is obvious present application is extremely out of time prescribed by Rule 11 (4) of the rules as correctly argued by respondent counsels. Argument by Mr. Nyika that, the Court cannot look at paragraphs 2 and 3 in the Notice of Motion as it will be to investigate evidence, that is not right. Notice of Motion is what moves the Court to grant prayer sought. Thus reference to what has been pleaded to base the prayers sought cannot be avoided. Mr. Nyika admitted that execution has started and attachment has been made at the High Court, yet, he insisted that this Court can issue orders for stat of execution. With respect, it is not right. Executing Court having appointed Court broker and attachment having done, it is upon applicant's counsel to apply lifting of the attachment order to the High Court. To this Court, the application has been overtaken by events. Issues raised by Mr. Nyika that anomalies in the Notice of motion raised on addition of paragraphs 2 and 3 be covered by overriding objectives principle, that it is not right. Anomalies raised of adding new facts that did not exist on initial application goes to the substance of the application, thus cannot be cured by overriding objectives. The applicants, by filing new application did not adhere to the orders of the Court. Thus, I have no hesitation, to upheld the respondent's preliminary objection that the present application has been filed after lapse of almost 4 months from 07th June 2024, when applicant became aware of execution proceedings to 4th October 2024, when current application was filled without seeking for extension of time is time barred. Also present application contains new averments in the notice of motion, and more so, it has been overtaken by events. In the end the application is struck out with costs. DATED at DODOMA this 6th day of December, 2024 Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 6th day of December, 2024 in the presence of Ms. Eunice Francis Mtiro, learned counsel for the applicant and Mr. Sabas unsel for the respondent via virtual court, is hereby lerajW of the original. S. S. LUSHASI DEPUTY REGISTRAR