CIVIL APPLICATION NO 58 16 OF 2023 PETROLUBE TANZANIA LIMITED ANOTHER VS FUCHS OIL MIDDLE EAST LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MUGASHA, J.A., MASHAKA, J.A. And NGWEMBE. J.A.^ t CIVIL APPLICATION NO. 58/16 OF 2023 PETROLUBE TANZANIA LIMITED ........................................1st APPLICANT TOTAL TANZANIA LIMITED.............. ............................. 2nd APPLICANT Versus FUCHS OIL MIDDLE EAST LIMITED.......................................RESPONDENT [Application for striking out the Notice of Appeal from the judgment and decree of the High Court of Tanzania, Commercial Division at Dar es Salaam] (Maruma, J.) dated the 6th day of May, 2022 in Commercial Case No. 23 of 2019 RULING OF THE COURT 20th February & 03rd March, 2025 MASHAKA. 3.A.: The notice of motion is moving the Court under rules 48 (1), (2), 49 (1) and 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for an order to strike out the notice of appeal which was lodged by the respondent on 11th May 2022 against the decision of the High Court of Tanzania (Commercial Division) dated 6th May 2022 in Commercial Case No. 23 of 2019 which was in favour of the applicants. The application is i supported by an affidavit averred by Jovinson Kagirwa, the advocate for the applicants. The applicants raised two grounds that; one, the respondent has failed to lodge an appeal within the prescribed time, and two; some essential steps in the proceedings have not been taken or has not been taken within the prescribed time. In substantiating their contention that the respondent had not taken essential steps, Mr. Simon Barlow Lyimo, the learned counsel representing the applicants submitted that she had not filed the appeal within sixty days after lodging the notice of appeal, in which the period had elapsed. Further, he argued that since the notice of appeal was lodged on 11 May 2022, almost eight (8) months had passed while the respondent was required to lodged an appeal within the prescribed time of ninety (90) days. In addition, he argued that the respondent had not taken any essential steps to follow up the request letter to the Registrar, for example, and serve a copy of the reminder letter to the applicants. It was their contention that the respondent took steps of writing a reminder letter on 17th February 2023 after this application was lodged on 10th February 2023, which he firmly maintained that it was an afterthought. In support of his argument, the learned counsel referred us to the case of Mway Arego Jombo v. NMB Bank PLC (Civil Application No. 627/08 of 2021) [2023] TZCA 17825; (13 November 2023 TANZLII) that regarding the applicability of rule 90 (5) of the Rules, a party who applied for necessary documents to the Registrar for appeal purposes if not supplied within ninety (90) days has a duty to make a follow up within fourteen (14) days after expiry of those ninety (90) day. The learned counsel for the applicant concluded that the respondent has failed to take essential steps in lodging the intended appeal and prayed to the Court to strike out the notice of appeal. Resisting the application, the respondent filed an affidavit in reply sworn by Edgar Edward Kalunga, Senior Legal Officer of the law firm known as REX Advocates conversant with the facts he deposed. Dr. Alex Nguluma, the learned counsel representing the respondent disputed the facts raised by the applicants' supporting affidavit and stated that a series of physical follow ups to the High Court was made within 15 days after the expiry of the ninety days, and that on 17th February 2023 they were informed that the records were not yet available. He further argued that on 21st February 2023 they wrote a second letter to the Registrar of the High Court of Tanzania Commercial Division who had not replied to their first letter dated 10th May 2022. He implored us to consider that the Registrar reply vide letter dated 3rd August 2024 referred their two letters notifying them to collect the requested documents and also issued a certificate of delay notwithstanding that the documents were incomplete. He beseeched us to dismiss the application as they had taken the essential steps as required by the law, hence the applicant had no cause of action. Having carefully scrutinized the affidavits deposed by both parties and the oral submissions before us, we are of the considered view that some essential steps were taken by the respondent in pursuing their appeal. In the instant application, it was the respondent's averments at paragraphs 8 and 9 of the affidavit in reply that through their advocate she took all the necessary steps and expended efforts to prosecute their appeal but could not lodge it because some documents were yet to be supplied by the Registrar. Dr. Nguluma referred us to two letters and a certificate of delay which was attached to the list of authorities and a letter with Ref. No: Comm. Case No. 23 of 2019 dated 2 August 2024 in which the Registrar of the High Court Commercial Division eventually replied and made reference to their letters dated 10th May 2022 and 21st February 2023 notifying them that the certified copies of proceedings, judgment, decree and exhibits were ready for collection. Additionally, a certificate of delay was issued by the Registrar excluding a total of 815 days in computing time for instituting the appeal. Surprisingly, even the collected certified copies were incomplete which necessitated the respondent to write to the Registrar vide Setter dated 2nd December 2024 that copies of proceedings and exhibits were incomplete and not well endorsed as required by the law. In Transcontinental Forwarders Limited v Tanganyika Motors Limited (1997) TLR 328, the Court had stated: - "...failure to take essential steps to institute the appeal could either be procedural or evidential. An example could include omission to apply for leave to appeal or a certificate on appoint o f law, when one was required; or failure to collect copies o f proceedings, judgment or order necessary for the institution o f an appeal or failure to lodge an appeal within the prescribed time, where the documents are ready." In the instant case the inordinate delay by the Registrar in furnishing the relevant documents to the respondent could not be blamed entirely on the respondent. See - for instance Foreign Mission Board of the Southern Baptist Convention v. Alexander Panomaritis (1984) TLR 146. As the Court clearly stated in Transcontinental Forwarders Limited v. Tanganyika Motor Limited (supra), once the respondent has shown that he had applied to the Registrar for certified copies of proceedings, judgment, decree and exhibits sought to be appealed against, and he had not been furnished with any, he had complied with the Rules. It is evident from the correspondences between the respondent and the Registrar of the High Court Commercial Division that there was a letter requesting for certified copies of documents which was written within the prescribed time and the eventual reply by the Registrar supplying the requested documents. Though not all documents were furnished to the respondent as those supplied were incomplete. We are aware that it is upon us to uphold the dictates of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania to dispense justice without being tied up with technicalities provisions which may obstruct dispensation of justice. Thus, we therefore cannot strike out a notice of appeal based on inaction of the Registrar. The respondent in the present case have so far done no dereliction of what they ought to have done to deserve any blames. See, Safia Ahmed Okash v. Sikudhani Amiri & Others (Civil Application No. 77 of 2021) [2023] TZCA 50; (23 February 2023 TANZLII). Also, the Court held in Foreign Mission Board of the Southern Baptist Convention v. Alexander Panomaritis (supra) that: - "Since the inordinate delay in furnishing a certifiedcopy o f the proceedings o f the High Court cannot be blamed on the respondent no cause of action existed on his part to bar him from instituting and prosecuting his appeal.” On the basis of the above, we find and hold that the application is without merit and we dismiss it with costs. We hereby order the Registrar of the High Court of Tanzania Commercial Division to supply the incomplete certified copies within thirty (30) days from the date of this order and the Judge in Charge to follow up its implementation. DATED at DAR ES SALAAM this 03rd day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. 1 NGWEMBE JUSTICE OF APPEAL Ruling delivered this 04th day of March, 2025 in the presence of Mr. Simon Lyimo, learned counsel for the Applicants and Ms. Neema Mbaga, learned counsel for the Respondent, is hereby certified as a true copy of