exim bank t ltd vs zawadi ally msalla 2015 tzhccomd 2108 21 august 2015

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT ARUSHA MISCELLANEOUS COMMERCIAL CAUSE NO. 5 OF 2015 (Arising from Commercial Case No. 12 of 2014) EXIM BANK (T) L T D .............................................. APPLICANT/JUDGMENT DEBTOR

VERSUS ZAWADI ALLY MSALLA (as administratrix of the estate of LUSEKELO SAMSON [ .... DEFENDANT/DECREE HOLDER

MWANDENGA 18th & 21st August, 2015

RULING MWAMBEGELE. J.: On 20.05.2015 a judgment was entered exparte against the applicant bank. It proceeded from the applicant's absence on 17.05.2015 when the case was called on for hearing. No sufficient reasons were assigned for the absence though the record shows that the applicant was aware of the said hearing date as he was present on 10.12.2014 when the said date of hearing was fixed. Unfortunately, as the record unveils, the Plaintiff in that case; a certain Lusekelo Samson Mwandenga, passed away before realizing the fruits of the judgment. Zawadi Ally Msalla, has now stepped into the shoes of the deceased as administratrix of his estates. l The applicant has now, at the services of Mr. Beatus Malima, learned advocate from a law firm going by the name Mawalla and Co. Advocates, made this application under Sections 68 (e) and 95, and Order IX rule 13 (1) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC") as well as rules 4 and 43 (2) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (henceforth "the Rules"). In the application against the late Lusekelo Samson Mwandenga and in an amended applicant against Zawadi Ally Msalla as administratrix of the estates of the late Lusekelo Samson Mwandenga, the applicant seeks to be heard for orders that: 1. May this Honourable Court be pleased to set aside the

decree passed ex-parte by this Honourable Court, against the Applicant/Judgment Debtor on the 20th day of February, 2015 in Commercial Case No. 12/2014, and appoint a day for proceeding with the suit; 2. May this Honourable Court be pleased to issue an order staying the execution of the said decree pending the hearing and determination of this application; 3. The Costs of the application be in the cause; 4. Any other order, which this Honourable Court may deem fit to grant. As already alluded to above, this application was filed on 15.06.2015 after the previous one was amended upon an order of this court to have it amended so 2 as to implead Zawadi Ally Msalla; the administratrix of the estate of the late Lusekelo Samson Mwandenga. The application is supported by two affidavits of Mr. Beatus Malima, learned counsel and a certain Andrew Akyoo; an intern at Mawalla and Co. Advocates. Counter affidavits against the affidavits were sworn by a Mr. Njooka, one of the learned counsel for the respondent decree holder. The application was argued before me on 18.08.2015 during which the applicant bank (judgment debtor) had the services of Mr. Beatus Malima, learned advocate and the respondent (decree holder) was advocated for by a team of five lawyers: Mr. Nduruma Majembe, Mr. George Njooka, Mr. John Muhozya, Mr. Stanley Luoga and Mr. Paul Baraka, learned advocates. I have keenly read

the affidavits as well as the counter-affidavits thereof. I, as well, listened carefully to the submissions of the learned counsel for the parties at the hearing of this application. The arguments at the hearing were full of substance and I thank these trained minds for the good work well done. The learned counsel for the parties exhibited hard work as true officers of the court. Before I go into the nitty gritty of the application, let me, quickly, solve one problem. There arose an argument at the hearing as to whether the application to be argued should be the first one which was filed on 24.02.2015 or the amended application which was filed on 15.06.2015. Mr. Malima, learned counsel for the applicant was of the view that the previous application was the one to be argued as, save for the name of the administratrix of the estate of the late Lusekelo Samson Mwandenga in the 3 amended application, both applications were substantially the same. Mr. Malima, learned counsel, on that premise, went to the extent of arguing that the court should not have ordered the filing of a fair copy of the amended application. Mr. Nduruma Majembe, for and on- behalf of the fellow counsel for the respondents, was of a different view. It was his view that the filing of the amended application had the effect of disregarding the previous application. Mr. Majembe, learned counsel stated that that was

the practice of court proceedings in this jurisdiction which has been religiously followed in our court. I, outrightly, agreed with Mr. Majembe, learned counsel and promised to give more reasons in this ruling which, at this juncture I am now set to give. It is not uncommon in court proceedings in this jurisdiction for parties to apply for amendment of pleadings. The law allows this practice - see, for instance, rule 24 (1) of the Rules and Order VI rule 17 of the CPC and the courts, more often than not, have been allowing such amendments. Once a pleading is amended, as rightly put by Mr. Majembe, learned counsel, that which stood before the amendment is disregarded. I think it was Their Lordships Hodson and Ormered, LL.J who articulated the principle in the English case of W arn er Vs Sam pson a n d a n o th e r [1959] 1 QB 297 in which it was, inter alia, held: "... once pleadings are amended, that which stood before amendment is no longer material before the court". 4 The principle in the W arn er case was followed by the Court of Appeal of Tanzania in Tanga H a rd w a re & A u to p a rts L td & 6 O th e rs Vs CRD B B a n k Civil Application No. 44 of 2005 (unreported). In Tanga H ard w are the Court of Appeal of Tanzania speaking through Ramadhani, JA (as he then was - he later became Chief Justice of anzania) quoted the above holding of the English case and went on to

instructively state: "I have no doubt in my mind that pleadings, which were the subject matter before their Lordships, cover notices of motions but in any case I am positive that that holding can be extended to cover all documents presented to courts. What their Lordships meant, I think, is that once there is an amended document then the previous one before the amendment should be treated as if it never existed at all/' [Bold mine]. I think the foregoing explains why I allowed the parties to argue the amended application and disregard the previous one which stood before the amendment. Now back to the amended application. Both affidavits make somewhat similar statements in respect of the application. Mr. Malima, learned counsel for the applicant, primarily, states that the nonappearance was perpetuated by unawareness of the hearing date. As can be gleaned from his statements in 5 the affidavit and submissions at the hearing, that unawareness was caused by the belated handover of cases from the former counsel who was in conduct of the suit representing the applicant. His statements indicate that he was instructed on 07.02.2015 by the applicant to represent them in their various suits having fired Albert Msando, Legal Consultant, and on 09.02.2015 instructions via email to Albert Msando for handing over the case files to him (Mr. Malima) which email was copied to him (Mr.

Malima). According to Mr. Malima, learned counsel, it was not until 16.02.2015 that he received a handover note with all files whereby he immediately instructed the legal officer of their Firm; the said Andrew Akyoo to make a perusal of the court file on 17.02.2015, with a view to finding out the case status. He then states that on the material date, he was informed by the said Akyoo that the case was slated for hearing on that date. He therefore instructed him to seek for a counsel to hold his brief. Mr. Akyoo, allegedly, approached one Valerian Qamara, learned counsel, who was previously in conduct of the case and was in court precincts on the material date, to hold Mr. Malima's brief but that Mr. Qamara refused. He thereafter, allegedly, approached Mr. Ruwaichi, counsel for the Plaintiff to hold Mr. Malima's brief and that Mr. Ruwaichi agreed outside the court but that to his surprise inside the courtroom before a judge, Mr. Ruwaichi stated that he was not aware of the whereabouts of the applicant's counsel and prayed to proceed with the suit exparte and the court granted his prayer. He states further that Mr. Akyoo attempted to tell the court of the agreement of Mr. Ruwaichi to hold Mr. Malima's brief and his being surprised to hear what he told the court but that he was not recorded by the court for want of locus standi. Mr. Malima 6 deposes further that the non-appearance

of the defendant's counsel on the hearing date was neither intentional nor deliberate. Mr. Akyoo's statements in the affidavit largely corroborate those of Mr. Malima, learned counsel. He deposes that upon the former counsel refusal to hold brief for Mr. Malima, he was instructed to seek assistance from the plaintiff's counsel who accepted but only to rise in court and deny knowledge of the whereabouts of the defendant's counsel. That he attempted to make presentation on the same but for want of audience he was not recorded. Mr. Malima's and Mr. Akyoo's statements are vehemently countered by the respondent particularly for want of proof. Indeed, it's strange that both affidavits referred to annexures but none was annexed thereto. It is worth noting here that the previous affidavits, which I have already held to be immaterial, were correctly appended with annextures. The amended application which was the one argued did not. Briefly, the applicant's counsel's submissions and arguments are tilted on four main angles; namely, one; delay in the handover of case files from the former counsel, two; lack of information on the hearing date, three; refusal by the two counsel to hold his brief at the hearing and three;,the need to do substantial justice. On the other hand, the respondent's counsel (three of whom made submissions at the hearing) stage their opposition from equally four

angles, namely: first; incompetence of the prayers for stay of execution for want of provision of the law, abandonment of the same and want of attachment of the incumbent exparte judgment and decree, secondly; lack of proof of the allegations of refusal to hold brief by the two counsel, late handover notes 7 and files of the case from the former counsel, thirdly; negligence on the part of the Respondent's counsel and finally; insufficiency of the grounds for non- appearance at the hearing. For all these, they beckoned me to dismiss the application with costs. Not being put off, Mr. Malima, learned counsel, managed a reload his submissions by way of rejoinder, putting that the application stands unopposed for want of affidavit of a person who was in conduct of the case. And further that, the prayer for stay of execution was covered in his affidavit which he prayed to adopt from the outset as part of his submissions and section 95 of the CPC for the reason that there was no provision neither in the CPC nor in the Rules that covers an application for stay of execution pending hearing and determination of an application for setting aside an exparte decree and judgment. As to non-attachment of the respective decree and judgment his bullet is to the effect that being in the nature of a Preliminary Objection it should have been raised at earliest opportunity. I start with the

contentions with regard to the prayer for stay of execution. To me, it is an application of its own nature, seeking a crucial order by the applicant. In my considered view, it was included in the prayers or in this application either inadvertently or on guesswork. I say so due to the simple reason of how it is tailored. It seeks a grant of stay of execution pending hearing and determination of this application. But the applicant, neither in the supporting affidavits nor in the arguments in chief before me attempted to touch on the prayer. It was in rejoinder argument when the applicant touched on the application for stay and that was, of course, after being triggered by the respondent's counsel. If the learned counsel was indeed up to having that order, he could have touched upon it in the affidavits and or in the arguments at the hearing. I am aware that the two applications are appositely placed in one application: see the decision of this court in T an zania K n itw e a r L td Vs S h am sh u E sm a ii [1989] TLR 48. However, it seems to me, the learned counsel ought to have supported the same with the statements in the affidavits and at the hearing. The learned counsel did not bother to address this court in respect of that prayer at the hearing. Neither did he attempt to do that in the affidavits. His attempt to cover this misfit by adopting his affidavit as part of

the submissions and reacting in rejoinder arguments does not help either because no single statement therein refers to that prayer; not even by implication. I will therefore treat the application for stay of execution as incompetent, redundant and bad in law and refuse it. Coming to the other prayers, I will be guided by the provisions of Order IX rule 13 (1); which is couched thus: "In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment 9 into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also". The guiding considerations as from the above provisions are: (i) Non-service of summons; and (ii) Sufficiency of the cause for none appearance. Since the learned counsel does not dispute the applicant's knowledge of the hearing date that will not be a consideration here. The question then becomes

whether the applicant was prevented by sufficient cause from appearing when the suit was called on for hearing? The learned counsel for the applicant has earnestly endeavoured to show the circumstances that prevented him from appearing. Indeed, from the nature of his statements, he demonstrates that he acted immediately after being duly instructed to represent the Defendant. On the other hand, the counsel for the Respondent are of the view that the learned counsel was negligent in making a follow-up and more so that he has failed to prove the allegations of refusal to hold brief by the counsel for the plaintiff. 10 Looking at the sequence of events by learned counsel for the applicant, much is left to be desired. The record and arguments show that the learned counsel for the applicant was instructed on 07.02.2015 to take up various cases for the applicant. The nature of the instructions and the scope of the task are however not shown to the court. It is not said as to whether the applicant issued instructions with specific directions regarding the cases that the counsel was supported to take up. Apparently, that was left in the hands of the counsel to find out, which, in my considered view, was a laxity on the part of the applicant itself, because, it being the defendant and a party to the case, it was irrebuttably presumed to be aware of the cases status and dates of next

action. That apart, despite the instructions to that learned counsel, the applicant informed the previous counsel to withdraw and handover the case files two days later that is on 09.02.2015, and it appears, the applicant did not take any step to see to it that the same was complied with, considering the fact that the case was coming for hearing on 17.02.2015. This further demonstrates nothing but laxity or negligence on the part of the applicant itself. Unfortunately, apart from all these events remaining unsubstantiated, there is no affidavit from the applicant bank to at least explain away such laxity or what transpired between it and the former counsel so as to justify the delay in the handover process. It is not disclosed as to whether the applicant was not aware of the hearing date, and the reason of such unawareness, say lack of sufficient service, and neither is it said as to how it has been participating in the conduct of the case. All these holes points to lack of seriousness on the part of applicant. It should be well settled to litigants that cases are of the parties and not of 11 counsel and as such a litigant has a primary duty of complying with court orders and the requirements of the law. A litigant has got to be vigilant in following the case up. That being the fact, since laxity or negligence on the part of counsel has been held to be not sufficient cause for

non-appearance [see: M aneno M e n g i L td & 3 O th eres Vs F a rid a S a id N yam ach um be & th e R e g is tra r o f C o m p an ies [2004] TLR 391 and M u ltic a b le L im ite d Vs N o o rd in A b d a lla h A lly M u salam & A n o th e r Miscellaneous Commercial Application No. 36 of 2015 (unreported)], the same is the case with litigants; their laxity and negligence cannot be sufficient ground for non-appearance. The applicant's learned counsel appears to impose the blame on the counsel for the plaintiff for refusing to hold his brief. In my considered opinion, the blame is unfounded. It must be well settled that the holding of brief is a mere practice which is not provided by the law of procedure. So far, it is the Rules of this court which recognize that practice but on strict terms that a counsel holding brief must be fully aware of the facts of the case and ready to proceed with the hearing. Therefore, in terms of the Rules, a counsel who purports to hold brief without being fully acquainted with the facts of the case and ready to proceed, faces the risks of bearing the costs of adjournment - see rule 44 (1) of the Rules. This sub-rule, among others, is designed to cut down the rate of unnecessary adjournments and thereby curbing delays in the dispensation of justice. Accordingly, one may be inclined to conclude that the refusal by the learned counsel for the plaintiff

to hold Mr. Malima's brief, if at all true, was justified in the light of the Rules. From the foregoing discussion, I deem to be no sufficient ground that may have prevented the applicant or its advocate from entering appearance when 12 the case was called on for hearing. This ground only disposes of this application. In the premises, I would not entertain other submissions made by the advocates for the parties; the same will be addressed at another opportune moment. At the end of it all, I find this application to be wanting in merit and proceed to dismiss it with costs. It is so ordered. DATED at ARUSHA this 21st day of August, 2015. 3, C. M. MWAMBEGELE

JUDGE 13