CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LEVIRA, J.A.. GALEBA. J.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 447 OF 2022 PETROFUEL (T) LIMITED........................................................ APPELLANT VERSUS POWER ROADS (T) LIMITED......... ................................... 1st RESPONDENT LYCOPODIUM TANZANIA LIMITED.................................. 2nd RESPONDENT PANGEA MINERALS LIMITED........................................... 3rd RESPONDENT (Appeal from the ruling and drawn order of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (NanLqejcuJJ dated the 13th day of May, 2022 in Commercial Case No. 29 of 2012 JUDGMENT OF THE COURT 26th February & 4th March, 2025 ISMAIL J.A.: The history of this matter is somewhat chequered. It was first instituted on 21st March, 2012, and the appellant's claim against the respondents was for damages arising out of breach of contract, allegedly committed by the respondents. The sum involved was TZS. 715,004,048.00, constituting unpaid invoices and interest accruing thereon, and a further sum of TZS. 300,000,000.00, being general damages arising out of the alleged breach. The subject matter of the contract was automotive gas oil fuel that was supplied to the respondents for the Buzwagi Mining Project. The contract was executed on 15th October, 2007 between FUCHS Oil (T) Limited and the respondents, and it involved supply of 2,000,000 litres of fuel. In January, 2008, FUCHS Oil (T) Limited assigned the contract to the appellant. It was alleged that, while the appellant fulfilled her part of the bargain, the respondents reneged on their promise by refusing to settle the invoices raised by the appellant for the fuel supplied. On the date the suit was fixed for hearing in 2014, only the appellant appeared in court, prompting the trial court's order that the matter be heard ex-parte against the respondents. This culminated in the issuance of an ex-parte judgment. The ex-parte decision was challenged on appeal to this Court but the appeal fell through when the Court ruled that the appeal process had been preferred pre-maturely as the respondents' recourse was to set aside the ex-parte decision. This brought them to the High Court (Commercial Division) where their application for setting aside an ex-parte decision was granted. On restoration of the matter for hearing inter-partes, the parties went through the normal pre-trial procedural rituals. On 29th March, 2022, the trial court ordered the parties to file their respective witness statements consistent with rule 49 (2) of the High Court (Commercial Division) Procedure, GN. No. 250 of 2012, as amended by the High Court 2 (Commercial Division) Procedure (Amendment) Rules, GN. 107 of 2019 (the Rules). The appellant filed her witness statement on 12th April, 2022. This attracted a preliminary objection that attacked the filing of the witness statement on the ground that it was filed out of time. The trial court sustained the objection and struck out the witness statement, resulting in the dismissal of the suit. In striking out the witness statement and dismissing the suit, the learned trial Judge reasoned as follows: "...I find that, the witness statement filed by Mr. Ishengoma was filed out o f time ana\ hence, in contravention o f not only the Court Order dated 29h March, 2022 but also the provisions o f Rule 49 (2) o f the High Court (Commercial Division) Rules o f 2019. Consequentlythere being a contravention o f that mandatory rule, nothing can be relied on to rescue the situation but that, the witness statement stands to be struck out and I hereby strike it out from the record... Since there is no other witness statement which can be relied on to substantiate the allegations in the plaint, it means that the Plaintiff's case has not been prosecuted.... the present suit cannot stand anymore but be liable to dismissal..." This decision was taken with a serious pinch of salt by the appellant, hence her decision to institute the present appeal. Six grounds of appeal have been preferred as paraphrased hereunder: One, the trial court erred in law and fact in striking out the appellant's witness statement. Two, the trial court erred in dismissing the suit for want of prosecution before the date on which it was fixed for hearing. Three, the trial court erred in law for not invoking the provisions of the Law of Limitation Act in guiding the ascertainment of the time at which the 14 days start counting. Four, the trial court erred and occasioned a miscarriage of justice in preferring the provisions of the Interpretation of Laws Act to the Law of Limitation Act which governs matters of time limitation. Five, the trial court erred by extending time and setting aside the ex-parte judgment; and six, the trial court erred in law and fact by failing to afford the parties the right to be heard in the substantive dispute between them. At the hearing of the appeal, the appellant was represented by Mr. Stephen Mosha, learned advocate, whereas the 2nd and 3nd respondent, were respectively represented by Mses. Faiza Salah and Caroline Kivuyo, both learned counsel. The 1st respondent, whose notice of appearance was served through substituted service by publication in the newspaper, did not enter appearance. At the instance of the counsel for the appellant, the Court ordered that hearing should go ahead in absentia. Getting us under way, was Mr. Mosha who began by informing us that he was dropping grounds 3 and 4 of the appeal, choosing to remain with four grounds which he clustered into two grounds. Whereas grounds 4 and 5 were argued together as ground 1 of the appeal, a combination of grounds 1 and 2 constituted the new ground 2, also argued in a combined fashion. In his submission in support of ground one, Mr. Mosha was critical of the position taken by the learned trial Judge, when he held that the 2nd respondent, the 2nd defendant then, had not been served with a copy of the plaint. He argued further that, the decision to extend time to set aside the ex-parte judgment ought to have considered key variables necessary for granting the extension of time such as stating good cause, acting without undue delay, demonstration of illegality and accounting for the days of delay. On service of the plaint, Mr. Mosha referred us to pages 1196 and 1197 at which publication of the notice of service is located. The learned counsel was of the view that, extension of time would not be granted had the trial court considered that proper service was effected. To his dismay, the trial court ignored all that, he contended. Turning his attention to the affidavit that supported the application for setting aside the ex-parte order, the argument by Mr. Mosha is that the same was shrouded in some defects that led to an order for expunging 5 of some of the averments. He contended that, having ruled that the affidavit was defective, the appropriate course of action was to strike it out and not to order filing of a new affidavit as the trial Judge did. He considered this to be a wayward action that must be censured. He buttressed his contention by referring us to our decision in Jacqueline Ntuyabaliwe Mengi & 2 Others v. Abdiel Reginald Mengi & 5th Others, Civil Application No. 332/01 of 2021 [2022] TZCA 748. As he faulted the order for filing a new affidavit, the learned counsel did not spare the substance of the new affidavit from the brunt of criticism. He contended that the new affidavit too was liable to striking out as it contained averments that required proof from another person. He was adamant that owing to the said ailment, the application ought to have been struck out. Mr. Mosha urged us to find merit in the ground of appeal and allow it. Mses. Salah and Kivuyo's submissions were similar in every aspect. They leapt to the defence of the trial Judge and argued that all grounds for extension of time and setting aside the ex-parte judgment were prevalent. They argued that it was quite in order for the trial Judge to find that there was an illegality when the appellant failed to serve the plaint on the 2nd respondent. The learned counsel submitted that, the respondents' contention in the supporting affidavit was not contested as the appellant chose not to file a counter-affidavit. This, in their view, amounted to an admission of the facts pleaded in the affidavit. On defectiveness of the affidavit, the learned counsel conceded that it is true that the trial court expunged some paragraphs of the defective affidavit. They quickly added, however, that such decision did not prevent the trial Judge from exercising discretion to order the filing of a fresh affidavit. The counsel implored us to be guided by our decision in Sanyou Service Station v. BP Tanzania Limited (Now Puma Energy (T) Limited), Civil Application No. 185/17 of 2018 [2019] TZCA 144. On the relevance of the Jacqueline Ntuyabaliwe Mengi case (supra), the learned counsel was of the contention that the same was not in all four corners with the instant matter, arguing that, in the cited case, the residue of the affidavit was not enough to support the application. This was not the case here. Ms. Kivuyo had one more jab to throw. This is in respect of the validity of the ground of appeal. She argued that the notice of appeal that commenced the appellant's journey to this Court was against the decision of the trial Court in Commercial Case No. 29 of 2012 whose decision was delivered on 13th May, 2022. Issues raised by the appellant in this ground, she argued, emanated from Commercial Applications No. 47 of 2020 and 188 of 2021. In respect of these matters, no notice of appeal had been preferred to this Court. She urged us to give these grounds a wide berth and consider the ground of appeal hollow and liable to dismissal. From the counsel's contending submissions, a narrow question arises for our determination, and this is whether this ground of objection challenges what the trial Judge pronounced himself on 13th May, 2022. Our entry point is page 1485 of the record of appeal at which the Notice of Appeal, a prelude to this appeal, is found. The Notice of Appeal was filed by the Appellant on 13th May, 2022. For ease of reference, it is necessary that we should reproduce part of it, as follows: "IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL N O :............................... O F2022 IN THE MA TTER OF AN INTENDED CIVIL APPEAL N O :........ O F2022 BETWEEN PETROFUEL (T) LIMITED.....................................APPELLANT AND POWER ROADS (T) LIMITED........................ 1st RESPONDENT LYCOPODIUM TANZANIA LIMITED.............. 2nd RESPONDENT PANGEA MINERALS LIMITED....................... 3rd RESPONDENT (Appeal from the Ruling and Drawn Order o f the High Court o f Tanzania Commercial Division, at Dar es Salaam (Hon. Justice Dr. Nangela) dated 13th day o f May, 2022 in Commercial Case No. 29 o f 2012) NOTICE OF APPEAL (Rule 83 (1) o f the Tanzania Court o f Appeal Rules, 2009 as amended 2019) TAKE NOTICE that PETROFUEL (T) LIMITED being dissatisfied with the decision o f the Honourable Justice Dr. Nangeia given at Dar es Salaam on the 13th day o f May, 2022, intends to appeal to the Court o f Appeal o f Tanzania against the whole of the said decision as decided. The address o f service o f the Appellant: - 5. Ishengoma, Advocate SA Law Chambers Ohio/Garden Avenue Streets 4 h Floor, PPF Tower Dar es Salaam Mobile: 0786222242 Email: adv.ishengoma@gmail.com." What we distil from this excerpt is that the notice of appeal was specific in its objective. It revealed the appellant's scope of disgruntlement which is the ruling and drawn order that flew from Commercial Case No. 29 of 2012, delivered on 13th May, 2022. This decision did two things. One, it struck out a witness statement; and two, it dismissed the suit for want of prosecution. This means that the respondents were, pursuant to that notice, put on notice that the appellant was bemused by the decision that finally dismissed the suit and that an appeal was in the offing. We are of the view that, the appellant's steps were consistent with what rule 83 (3) of the Tanzania Court of Appeal Rules, 2009, obligates that a notice of appeal lodged in the Court to state whether the intended appeal is against the whole or part of the decision. It also requires that the part complained of should also be specified. 9 Looking at the contents of the notice of appeal, no doubt is entertained that the appellant intended to challenge nothing else but the decision which was pronounced on 13th May, 2022. This validates the contention by Ms. Kivuyo that pronouncements which preceded what the trial court decided on 13th May, 2022, are a subject for another day and they have no business in the instant appeal. Consequently, we refrain from discussing ground one, as part of this appeal. Ground two queries the trial court's decision to strike out the appellant's witness statement while the same was file within the prescribed time. Mr. Mosha has taken the view that rule 49 (2) of the Commercial Court Rules ought to have been read together with section 60 (1) (2) of the Interpretation of Laws Act, Cap 1 which excluded the day on which a specified day is excluded. The learned counsel argued that, had the date on which the final pre-trial conference was held been excluded, the witness statement filed on 12th April, 2022 would have been filed timeously. Mr. Mosha argued in the alternative that, since the final pre-trial conference was held at 11:00 hours on 29th March, 2022, then counting of the days must take cognizance of the fact that a day has 24 hours. This would factor in days up to 11:00 hours of the day on which the filing was due. This, In his contention, would elongate the filing time to extend beyond 12th April, 2022. The appellant's contention did not resonate with Ms. Salah who was resolutely of the contention that counting of the 14 days begins on the day the final pre-trial conference is held and completed. This means, in her contention, the final pre-trial conference day is factored in, consistent with section 60 (1) (a) of Cap. 1, arguing further that the specified day in this case is the final pre-trial conference day. She buttressed her argument with the decision of the Court in the case of Kenafric Industries Limited v. Lakairo Investment Company Limited, Civil Appeal No. 149 of 2021 [2024] TZCA 164 in which the Court held that the specified day is inclusive in the count. Replying to the appellant's contention that counting of the days must consider that a day has 24 hours, Ms. Salah argued that the position on counting of the days is settled and that need did not arise for departing from that settled position. The same views were echoed by Ms. Kivuyo who urged us to stand by our position we took in National Bank of Commerce Limited v. Partners Construction Co. Ltd, Civil Appeal No. 34 of 2003 (unreported). Regarding the 24-hour rule on counting of the days, Ms. Kivuyo was quick to debunk her counterpart's contention, arguing that this is a submission from the bar. li In any case, that would be a needless invention of the wheel, she contended. From the counsel's rival exchanges, the singular question for our consideration is whether the trial court erred when it held that rule 49 (2) of the Commercial Court Rules had been flouted when the witness statement was filed on 12th April, 2022. As unanimously submitted by both sets of the learned counsel, filing of a witness statement is governed by the Commercial Court Rules and, with respect to time, the relevant provision is rule 49 (2) whose substance stipulates as follows: "The statement shall be filed within fourteen days o f the completion o f the final pre-trial conference and served as directed by the Court What has polarized the learned counsel is the aspect of counting the days. The question here is: should the date of the pre-trial conference be excluded? Mr. Mosha contends that it should, while his adversaries hold a divergent view. To be able to answer this question we need to establish the cut-off day. Our reading of the rule brings a clear impression, in our view, that the counting starts on the day of completion of final pre-trial conference. This is gathered from the words "of the completion o f the final pre-trial conference" which imply, in our case, 29th March, 2022. In other words, this is what is known, in terms of section 60 (1) (a) of Cap. 1, a specified day. For clarity, the latter provision states as hereunder: "60 (1) In computing time for the purposes o f a written iaw- (a) where a period o f time is expressed to be a t o n , or with a specified day, that day shall be included in the period. " [Emphasis added] This is unlike the wording of section 60 (1) (c) that Mr. Mosha clung on. In this provision, computation follows the wording "time before a specified day" which connotes that time that precedes the action does not count in such computation. We think, both counsel for the 2nd and 3rd respondents were right in their contention that, since a specified day in this context is 29th March, 2022, the date on which the final pre-trial conference was held (page 1453), counting of the 14 days starts from that day. This finding is in congruence with what the Court held in Kenafric Industries Limited (supra) in which a similar issue featured. It was observed: "Coming back to the present case, it must be plain that the fourteen days period within which the parties were supposed to file their respective witness statementsf was computable from a specified dayf that is, the 18th February, 2020 which was the day o f 13 completion o f the final pre-trial conference. That being the case, we would agree with Mr. Joseph but for one thing. "[Emphasis supplied]. We take the view that, counting from the specified day, the witness statement filed on 12th April, 2022 was preferred out of time, and the trial court was justified in its action to strike out the witness statement and dismiss the suit. We find nothing on which to fault the decision of the High Court in that respect. In consequence of the foregoing, we find the appeal barren of fruits and we dismiss it. We make no order as to costs. DATED at DODOMA this 28th day of February, 2025 M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 4thday of March, 2025 in the presence of Ms. Faiza Salah, learned counsel for the 2nd Respondent and Mr. Mnazi Isack Mnazi, learned counsel for the 3rd Respondent via video link from Dar es Salaam and in the absence of the Appellant and 1st Respondent is hereby certified as a true copy of the original.