am steel and iron mills ltd vs tanzania electric supply co ltd 2020 tzhc 613 30 march 2020

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 167 OF 2018 (Originating from Civil Case No. 34 before Hon. Justice MURUKE) A.M STEEL & IRON MILLS LT D .................................. APPLICANT VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LT D ......RESPONDENT RULING 11th & 30th March, 2020. E. E. KAKOLAKI J Before this court, at the instance of M & B Law Chambers the applicant filed this application under 0. XXXV R. 2(2) of the Civil Procedure Code,[Cap. 33 R.E 2002] supported by the affidavit of one Sunil Kumar Patel, the applicant's General Manager. The applicant who was the defendant in a summary suit, Civil Case No. 34 of 2018 is seeking for leave of this Court to appear and defend the suit which was pending in this court for the reasons that I will soon disclose. The respondent in this application who was the plaintiff in Civil Case No. 34 of 2018 on the 21/2/2018 had filed a summary suit in this court for recovery of loss allegedly suffered from the applicant's (defendant) conduct of reversal of red and blue of electric phase whereby the bill charged was only 1/3 of the electricity consumption and 2/3 amount of electricity passed through the meter without being billed. The claims against the applicant (defendant) by the respondent (Plaintiff) in that case therefore were Tshs. 2,055,423,184.44 as loss suffered from unmetered amount of electricity, interest at 30% of the claimed amount from the date of filing the suit to the date of judgment, interest at Court rate (7%) from the date of judgment till full satisfaction and costs of the case. The applicant (defendant) who under the summary procedure suit was supposed to file an application for leave to defend his case was served with the plaint on the 9/3/2018 and managed to file the said application for leave to defend the case on 4/4/2018. The matter was set for mention on 5/4/2018. When the case came for mention before the trial judge, the plaintiff submitted before the court that the applicant (defendant) had failed to obtain leave of the court to defend the suit within 21 days as required under O. IIIV of the CPC and thus prayed for judgment and decree. Being satisfied the court proceeded to grant the respondent's (plaintiff) prayer and entered judgment and decree in favour of the respondent (plaintiff) for the reliefs prayed. The applicant (defendant) never applied to the court to set aside the decree instead decided to lodge this application. The respondent (plaintiff) did not prefer to file the counter affidavit in respect of this application but raised a preliminary point of objection which the court opted to dispose it first before going to hearing of the application on merit. When the matter was called before me on 11/3/2020 for hearing of the preliminary point of objection the applicant appeared represented by Captain Ibrahim Bendera learned advocate while the respondent enjoyed the services of Mr. Njau Epafras learned advocate. The preliminary point of objection advanced by the respondent is that the application is bad in law for being time barred. The issue for determination before this court is whether the application is time barred. Submitting on that point Mr. Njau stated that under item 1 of part III to the schedule of the Law of Limitation Act, [Cap. 89 R.E 2002] the time limitation for applying for leave to defend a suit is 21 days. That, in this matter the applicant was served with the summons to appear in court on 9/3/2018 and the application for leave to defend the case was filed on 4/4/2018, 6 days after expiration of 21 days as the same expired on the 29/3/2018. Mr. Njau argued further that the law is very clear under section 3(1) part II of the Law of Limitation Act, [Cap. 89 R.E 2002], that every proceedings described in the first column of the schedule to this Act and which is instituted after the period of limitation prescribed opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence. That since the time limit of 21 days provided under item 1 of part II to the schedule of the Law of Limitation Act, [Cap.89 R.E 2002] for application seeking to defend the case was not met by the applicant, this application deserve dismissal, he argued. He therefore prayed that this application be dismissed. Countering the objection Mr. Bendera was of the view that the facts raised by the respondent's counsel are untrue and vexatious. He said the truth is that the application was brought in court on 29/03/2018. That 30/3/2018 was Good Friday and 2/4/2018 was Easter Monday in which case the court was out of work. And that finally the filing fees assessment was made on 4/4/2018 when the applicant managed to file the application. Mr. Bendera lamented that unlike Court of Appeal, High Court Commercial and Land Division registries where there are stamps to exhibit the receipt date of the documents or pleading presented for filing in court, in this court there is none. And therefore it becomes difficult for the applicant to prove the date when the application was brought to court for filing process, he asserted. That following that delay of the court to process the documents before filing coupled with the Easter holidays the applicant should not be punished as the application was brought in court timely on 29/03/2018 which was the last date, he submitted. He therefore asked the court to overrule the preliminary objection for want of merit. In his brief rejoinder Mr. Njau cited the provisions of section 3(l)(c) of the Law of Limitation Act, [Cap.89 R.E. 2002] which states that for the purposes of that section the proceeding is instituted in the case of an application, when the application is made. He was of the view that as the record speaks for itself this application was made on 4/4/2018 when filed in court well out of time. And for that matter it is time barred equivalent to no application, he submitted. Otherwise he reiterated what he had submitted and prayed in his submission in chief. After going through the record and considering the submissions by both counsels I am in agreement with Mr. Njau that this application is time barred for being filed out of time. It is not disputed by both parties that the deadline for filing the application for leave to appear and defend the suit, Civil Case No. 34 of 2018 was on the 29/03/2018 which Mr. Bendera is claiming to have brought the same in court but could not file it timely as there intervened Easter holiday. That since there is no receiving stamp by the court to prove receipt of pleadings by this court then the applicant cannot be punished for something which is out of his control. With due respect to Mr. Bendera the record betrays him as it shows that the application was presented for filing in court on 4/4/2018 before the registry officer who also signed the same before it was presented to the District Registrar for admission. There is also ERV receipt No. 18895588 dated 4/4/2018 to prove that it was actually filed on the same date. Had the application been brought in court on 29/04/2018 as Mr. Bendera wants this court to believe the registry officer would have endorsed that date on it as the presentation date of the application in court. In my opinion this is a fact would require proof from the registry officer who allegedly received the said application on the 29/3/2018 which is missing. In absence of such proof and in the contrary proof that the said application was presented for filing in court on the 4/4/2018,1 hold that the same was filed out of time as submitted by the learned counsel for the respondent. The issue therefore is answered in affirmative. The above findings aside and assuming all things to be equal, I have gone a step further to see whether this application would stand after the court had entered judgment and decree against the applicant in Civil Case No. 34 of 2018. The answer is no. The same would fail as it has been overtaken by event. It appears to me that the applicant has never challenged the said judgment and decree nor attempted to set it aside which in my opinion entitles the respondent to apply for execution of the decree. I wonder also if the respondent had ever done so and if not why? The best and the only remedy for the applicant would in the circumstances of this case be to apply to setting aside the decree where the court would also consider the prayer for leave to appear to the summons and defend the suit under O.IIIV R. 4. 5 In the premises and for the foregoing reasons, I am inclined to hold that this application is incompetent for being time barred and overtaken by event. It is therefore struck out. I order no costs as no any party prayed for it. It is so ordered. DATED at DAR ES SALAAM this 30th day 6i\ March, 2020 E. E. KAK JUDGE 30/03/2020 Delivered Dar es Salaam today on 30/03/2020 in the presence of Mr. Elias Mkumbo Legal Officer for the respondent, Ms. Lulu Masasi and in the absence of the Applicant or his adQjcate. E. 'ETKakolaki JUDGE 30/ 03/2020 6