CIVIL APPLICATION NO 779 16 OF 2024 USANGU LOGISTICS TANZANIA LIMITED VS SAS LOGISTICS TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 779/16 OF 2024 USANGU LOGISTICS TANZANIA LIM IT E D .................................... APPLICANT VERSUS SAS LOGISTICS TANZANIA LIM IT E D .........................................RESPONDENT [Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Agatho, 3 .) dated the 30th day of June, 2023 in Commercial Case No. 28 of 2022 RULING 03rd& 16th October, 2024 MWAMPASHI, J.A.: This is an application for stay of execution of the decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam in Commercial Case No. 28 of 2022 dated 30.06.2023. According to the relevant decree, the applicant was, inter alia, ordered to pay the respondent a total sum of USD. 114,135.94. Aggrieved by the decision, the applicant did, on 15.08.2023, file Civil Appeal No. 438 of 2023, the appeal which is pending before the Court for hearing and determination. The application is by way of a notice of motion brought under rule H(3), (4), (4A) (5) (6) and (7) as well as rule 48 (1), both of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit i duly affirmed by the applicant's Director one Saadkhan Shermohamed Ismail. Among other things, it is deposed in the supporting affidavit that, despite the applicant's pending appeal, the respondent filed an application for execution of the decree of which its notice accompanied by a warrant of attachment of the applicant's truck and trailer with Reg. No. T837 DXX and T285 DXH, was served on the applicant on 04.10.2023. The notice prompted the applicant to file Civil Application No. 749/16 of 2023 before this Court on 06.10.2023 for an order to stay the execution of the decree, the application which was however, struck out on 25.09.2024 for being incompetent as it was not accompanied by a notice of appeal in compliance with rule 11(7) of the Rules. After Civil Application No. 749/16 of 2023 had been struck out on 25.09.2024, as alluded to above, the applicant came back by filing the instant application on 27.09.2024. The application was, however, greeted by a preliminary objection raised by the respondent, notice of which was filed on 02.10.2024, the subject of this ruling. The objection is based on a single point which is to the effect that the application is time barred for being filed beyond the statutory period of fourteen days. Whereas, Mr. Tumaini Shija and Ms. Betha Bihondo, both learned advocates, represented the applicant when the application was called on for hearing, the respondent had the services of Messrs. Frank Mwalongo and Benson Mahona, also learned advocates. In his brief but focused submission in support of the preliminary objection, Mr Mwalongo argued that according to rule 11 (4) of the Rules, an application for stay of execution is mandatorily required to be filed within fourteen days of service of the notice of execution on the applicant or from the date the applicant becomes aware of the existence of the execution for execution. He expounded that, since according to paragraph 10 of the supporting affidavit, the applicant was served with the notice of execution of the decree on 04.10.2023, then the instant application which was filed on 27.09.2024 is time barred. He thus, prayed for the application to be struck out with costs. On the other part, Mr. Shija did not agree that the application is time barred. He adamantly argued that in terms of section 21 (2) of the Law of Limitation Act, Cap 29, the application is not time barred. It was submitted by Mr. Shija that, since the applicant's first similar application, that is, Civil Application No. 749/16 of 2023 which was struck out on 25.09.2024, was filed within the prescribed period of fourteen days, then the instant application which was filed only three days after the first one had been struck out, cannot be time barred. Though Mr. Shija had no issue with the application of rule 11 (4) of the Rules, he however, argued that in terms of section 21 (2) of the Law of Limitation Act, the period of time during which the first application was pending has to be excluded. He insisted that the applicant, in good faith, had diligently been in Court prosecuting the first application involving same parties and for same relief. It was finally submitted by Mr. Shija that going by section 21 (2) of the Law of Limitation Act, and in consideration of the circumstances of this case, the applicant was not required to apply for extension of time first before filing the instant application. He thus urged me to overrule the objection and find that the application is brought within the prescribed period of time. In his rejoinder, Mr. Mwalongo submitted that, in principle, the preliminary objection that the application is time barred is not contested because section 21(2) of the Law of Limitation Act, on which the argument that the application is not time barred, wholly hinges, is, under the circumstances of this case, immaterial and irrelevant. He further argued that, in whatever case, the application of section 21 (2) of the Law of Limitation Act, is not automatic. It was pointed out by Mr. Mwalongo that before filing the instant application, the applicant ought to have applied for an extension of time within which to file the same. He expounded that, issues of whether the applicant was diligent and had been prosecuting the first application in good faith and whether the period of time during which the first application had been prosecuted should be excluded in computing the period of limitation, are issues which need to be considered in an application for extension of time. Mr. Mwalongo thus, reiterated his prayer for the application to be struck out with costs for being time barred. The only issue for my determination is whether the instant application for stay of execution is time barred or not. As alluded to earlier, it is not in dispute that after being served with the notice of the application for execution of the decree on 04.10.2023, the applicant duly and within the prescribed period of fourteen days as required under rule 11 (4) of the Rules, filed Civil Application No. 749/16 of 2023 for stay of the execution of the decree. Not in dispute is also the fact that Civil Application No. 749/16 of 2023 was struck out by the Court on 25.09.2024 for being incompetent. The question that arises here is whether, after the said first application had been struck out on 25.09.2024 and the period of fourteen days within which such an application for stay of execution is required to be filed, having long elapsed, was it in order and proper for the instant application to be filed on 27.09.2024 without an application for extension of time within which to refile the same having been sought and granted first. While to Mr. Mwalongo, after the first application had been struck out, the applicant ought to have firstly applied for extension of time to file the instant application, to Mr. Shija, there was no need to do so. As pointed out above Mr. Shija wholly relied on section 21 (2) of the Law of Limitation Act under which it is provided that in computing the prescribed period of limitation, the time during which the applicant has been, with due diligence and in good faith, prosecuting another civil proceeding in court, has to be excluded. With due respect to Mr. Shija and as rightly argued by Mr. Mwalongo, section 21 (2) of the Law of Limitation Act on which Mr. Shija's argument that the application is not time barred is based, is not only immaterial and relevant to the matter at hand but the provision is also not applicabie to the Court. Section 43 of the Law of Limitation Act clearly excludes the application of the Act to the Court by providing that: "S. 43.- This Act shall not apply to ~ (a) N/A (b) Applications and appeals to the Court o f Appeal. (c) N/A (d) N/A (e) N/A (f) N/A" Since section 21 (2) of the Law of Limitation Act, is not applicable to the Court, then the argument by Mr. Shija that the application is within the prescribed period of time, the argument which its basis is on that provision, crumbles instantly. It has to be pointed out that even if section 21 (2) of the Law of Limitation Act could have been applicable, its application cannot be automatic. Before the period of time during which an applicant had been prosecuting another proceeding is excluded in computing the prescribed period of limitation, it must be established that the said another application was being prosecuted diligently and in good faith. This can only be established in an application for extension of time. This Court is in total agreement with Mr. Mwalongo that because by the time the first application was being struck out, the prescribed period of fourteen days had elapsed, then before filing the instant application, the applicant ought to have firstly applied for extension of time within which to file the same. The failure to do so renders the instant application time barred. Without much ado and for the above given reasons, the preliminary objection is sustained. The application is time barred and it is accordingly hereby struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 15th day of October, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered on this 16th day of October, 2024 in the presence of Mr. Tumaini Shija, learned counsel for the Applicant and Ms. Mariam Masandika, learned counsel for the Respondent is hereby certified as a true copy of the original.