tanzania international container services ltd vs boulangererie saint thomas 2013 tzhc 2081 28 march 2013

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO 26 OF 2013 (Originating from Resident Magistrate Kisutu Civil Case No. 13 o f2004) TANZANIA INTERNATIONAL CONTAINER SERVICES LIMITED.................................... APPELLANT VERSUS BOULANGERERIE SAINT THOMAS.............................. RESPONDENT Date of Last Order: 3/12/2013 Date of Ruling: 28/3/2013 RULING Bongole,J This ruling is in respect of Preliminary Objection raised by the respondent against the appellant's appeal. Two Preliminary Objection have . been raised, thus:- 1. That the appeal is hopelessly time barred, and 2. That the appeal is bad in law It is significant to appreciate the abbreviated facts of the appeal in a skeletal form before dwelling on the preliminary objections. Broadly, the respondent instituted a claim against Overseas Trading Company N.V and Tanzania International container Terminal Services Limited as the 1st and 2ndjdefendantS respectfully before RM's Court of Dar es Salaam at Kisutu Civil Case No 13/2004. Judgment was delivered in favour of the respondent/plaintiff on the 4th July, 2007. It appears that the 2nd defendant was aggrieved by the said decision hence he applied to be provided with copies of proceedings, Judgment and decree so as he may lodge his appeal. Copies were ready for collection on the 29th February, 2008. On the 19th March, 2008 the counsel for the respondent was supplied with copies of Judgment and decree having paid court fees 2,000/= vide exchequer receipt No 30508005. The counsel for the respondent Mr. Said Elmaamry filed a Bill of Costs on the 3rd day of April, 2008. The appellant who was the 2nd defendant in the legal services of Mkono Advocates filed a notice of Preliminary Objection against the bill of costs on the 7th October, 2008. The ruling on bill of costs was delivered on 8th October, 2008. The Advocate for the appellant wrote a later dated 10th October, 2008 to the RM's Court requesting to be supplied with certified copies of the ruling so as he may file a reference to a single Judge of the High Court. Equally, Mr. Said Elmaamry applied for the same copies vide his letter dated 13th October, 2008 where he was supplied on the 23rd October, 2008 having paid Tshs. 1,500/= vide exchequer receipt No 22564825as court fees. 2 The respondent applied for execution of the courts decree on the 6th July, 2011. The appellant collected the certified copies of proceedings Judgment and decree on the 5th February, 2013 and preferred the present appeal on the 11th February 2013. The said appeal is now attacked by way of the two preliminary objection as shown above. The learned counsels Mr Waziri Mchome for the appellant and Mr Harold Sungusia for the respondent opted to dispose the Preliminary Objection raised by way of written submissions. Mr. Sungusia submitted that the respondent herein is a resident of Burundi and he has no office in Tanzania. However, he managed to get copies of Judgment and decree way back in 2011. That the respondent travelled all the way from Burundi and secured the decree two years prior to the appellant who is a permanent resident of Tanzania and his head offices are based in Dar es Salaam some four Kilometers from the premises of Resident Magistrate Court at Kisutu. That the copies were ready for collection since 2007 but the appellant was pleased to go and collect the same on 5th February, 2013. That from 4th July, 2007 to 11th February, 2013 is more than 68 months i.e 5 years and 8 months. That the time limit as provided under the law of Limitation Act Cap. 89 R.E 2002 is 90 days. Further that from the record, there is no any document showing that the appellant sought to extend the time limit for filing the current appeal. That since there was no extension of time sought and a Preliminary Objection has already been raised, it