MISC CIVIL APPLICATION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM MISC CIVIL APPLICATION NO. 602 OF 2021 PHOENIX OF TANZANIA ASSURANCE COMPANY LTD................. APPLICANT VERSUS JILALA JULIUS KAKENELI................................................... 1st RESPONDENT BILLYBALI.............................................................................. 2nd RESPONDENT RULING S.M. MAGHIMBI, J: On the 23rd day of November, 2021, the applicant herein lodged and application under the provision of Section 14(1) of the Law of Limitation Act, (Cap 89 R.E.2019) ("the Limitation Act") and Section 95 of the Civil Procedure Code [ Cap 23 R.E. 2019] ("the CPC') seeking for orders of this court extending time within which the applicant may seek for an order staying execution of the Judgment and Decree of this Court in Civil Case No. 64/2017 delivered on the 25th day of May, 2015. The application was supported by an affidavit of Mr. Odhiambo Kobas, learned advocate i representing the applicant, an affidavit deponed on the 19the day of November,2021. On the 28th day of June 2022, while filing a counter affidavit for the 1st respondent, Mr. Nuhu Mkumbukwa, learned advocate representing the 1st respondent, also filed along with counter affidavit, a notice of preliminary objection on point of law that this application is bad in law for being sub judice and an abuse of court process. When the matter came for hearing of the preliminary objection on the 17th day of March, 2023, the applicant as represented by Mr. Michael Kabekenga, learned advocate while the respondent was represented by Mr. Erica Denga, learned advocate. In his submissions to support the objection, Mr. Denga submitted that on 25th of May, 2015, the 1st respondent was the plaintiff in Civil Case No. 64/2007 (herein "the Original Suit") and emerged a winner against the applicant and the second respondent who were the defendants. Aggrieved by the said judgment, the Applicant referred Civi Appeal No. 14/2017 at the Court of Appeal of Tanzania (herein "the Appeal"). When the said appeal was pending at the Court of Appeal of Tanzania, the applicant herein on 22nd February 2021 filed Civil Application No. 39/01 of 2021 which annexed to the 1st respondent affidavit as JJ-4. 2 He pointed out that it is on record that when the said appeal was pending, there was no any order to stay execution of Civil Case No. 64 /2007. That being the case, he submitted, the first respondent who was the decree holder filed Execution No. 35/2020 which is still pending before the Deputy Registrar in this court (herein "the pending execution") Going to merits of the objection, Mr. Denga submitted that this application is res subjudice to Civil Application No. 39/01/2021 filed at the Court of Appeal ("CAT"). He argued that this application was filed in this court on 23rd November, 2021 in which the appl cant is seeking this court to extend time so that she can file an application staying execution of the original suit whereas in Civil Application No. 39/01 of 2021 filed on 22nd February, 2021 almost nine months before, the applicant also seeks to move the CAT to give an order extending time within which the applicant can file a stay of execution of the decree in the original suit. He referred the court to annexture JJ4 to the affidavit which is a notice of motion. Mr. Denga went on submitting that it is trite law that when two applications between the same parties seeking the same relief are pending in two court of competent jurisdiction, either of them becomes res subjudice. To that end, he argued, this application is res subjudice by the time it was 3 filed in this court. He went on submitting that cn 3rd August, 2022 the first respondent was served with a notice by the applicant made under Rule 58(1) & (4) of the Court of Appeal Rules, 2019 seeking to withdraw Civil Application No. 39/01 of 2021. He emphasized that the said notice was filed in the court of appeal on 01st August 2022 while this notice of PO, a subject of this ruling, was filed in this court on 28th June, 2022 two months earlier. In that regard, it was his humble submissions that the said notice was filed at the CAT in order to pre­ empty this PO. He then argued that as a principle of law, once a PO is raised, the other party is barred from rectifying the eiror complained of because doing so amounts to pre emptying the raised objection. He supported his line of argument by citing the decision of the CAT in Civil Application No. 222/2016, Standard Charactered Bank & Another, Vs VIP Engineering and Marketing Limited, whereby the same position was held. Mr. Denga further emphasized that the Civil Application No. 39/01/2021 is still pending at the CAT despie the said notice seeking to withdraw being served on the 1st respondent. He supported his submission in line with Rule 58(3) of CAT Rules which states that: 4 " Upon forma! notice being filed at the Court of Appeal the Court may grant such an application to withdraw upon such terms as to costs. " He then pointed that there is no known order to them when this application was withdrawn Civil Appeal No. 39/01 of 2021 at the time when this application was filed in court. In conclusion, he referred the court to the case of Moto Matiko Mabanga Vs Ophri Energy PLC and six others, Civil Appeal No. 119/2021 where the CAT stated that: "Despite the fact that PO must be pure point of taw, still on PO will be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence.", He then elaborated that in the cited case the CAT perused pleadings and annextures and determined the PO which was raised dismissing a Counsel's contention that the raised PO were not pure point of law. In view of that authority he submitted that this court will be home and dry in pursuing some facts and annexture plain to the first respondent counter affidavit in determining this objection. His prayer 5 was that this application being defective and bad in law for being res subjudice contrary to section 8 of the CPC, the same should be struck out with costs. In reply, Mr. Kabekenge was brief, he init ally submitted that the current application is not subjudice because as it has been submitted by Mr. Denga, the application was subjudice because of a pending matter in the CAT which is Civil Application No. 39/01 of 2021 between Phoenix Tanzania Assurance and Jilala Kakeneli. He argued that the gist there was to file an extension of time to file and application for stay of execution. He then submitted that the matter itself was filed because there was the Civil Appeal which it was struck out by 11th October 2021. That being the case, he argued, after knowing the fact that the appeal was struck out, the applicant filed a notice to withdraw the Application No. 39/01 of 2021 because there was no other matter that will support the application, an order which was granted on 22nd of August 2022 by Hon. DR Herbert of the CAT. His argument was that Mr. Denga's argument that the notice was meant to pre- empty the PO is not true. Instead, he submitted that the applicant only filed the notice to withdraw the application after being 6 aware that there was no matter at the CAT and therefore the CAT no longer had jurisdiction to entertain the matter at that time. That being the case, he further argued, the Misc. Application No. 602/2021 which is before this court tend to be the only application and proper before this court and that the issue of res subjudice does not apply to this matter. His conclusion was to urge this court to depart from the PO of the respondent and continue with hearing of the application because the matter by itself does not stand to be re subjudice. Mr. Denga had a rejoinder to make, he submitted that the Civil Application No. 39/01 of 2021 was pending at the CAT when this application was filed. Further that the said notice to withdraw and the subsequent order by the Registrar of the CAT were continuing while this application is already in court. He argued that the applicant ought to have waited for the withdrawal order from the CAT marking the matter withdrawn before filling this application. On Mr. Kabekenga's argument that the court depart on this PO and continue to determine the application on merits, his reply submission was that the court cannot determine an incompetent 7 application. He then reiterated his prayer in chief that this application be struck out for being res sub judice at the time it was filed. Having heard the submissions of the parties, at the onset, I am in agreement with Mr. Denga that at the time of filling this application, it was sub judice of the application of the nature sending at the court of appeal. Much as the application, as submitted by Mr. Kebekenga, has been withdrawn, the determination of this objection will be based on the date when the application was lodged and the subsequent date when the objection was raised. It is undisputed from the submissions of both parties that on the 22nd February 2021, the applicant had lodged a Civil Application No. 30/01 of 2021 before the Court of Appeal seeking for same reliefs as in this application, that is, an extension of time within which she could lodge an application for stay of execution of a decree in the original suit. It is further undisputed that at the time of lodging this application and the subsequent notice of Preliminary Objection in this Application, the said Civil Application No. Application No. 39/01 of 2021 was still pending at the Court of Appeal. This is where the line will be drawn to see whether the application before me was competent at the time it was 8 filed. Since the said Civil Application No Application No. 30/01 of 2021 was withdrawn on the 22nd day of August, 2022 and this application was lodged in this court on the 23rd day of November, 2021 it is conclusive that when this application was lodged in court, the Civil Application No. 39/01 of 2021 was still pending at the Court of Appeal, meaning that this court had no jurisdiction to entertain the matter. That being the case, this application was and remains an abuse of process. The same is hereby struck out with costs. 9