BOLLORE AFRICA LOGISTICS T LTD VS DEUS NYANZA ta MBN TRADERS MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 59 OF 2015 BOLLORE AFRICA LOGISTICS TANZANIA LIMITED.............................. APPLICANT VERSUS DEUS NYANZA t/a MBN TRADERS........................ RESPONDENT 23rd & 23rd April, 2015 RULING MWAMBEGELE, J.: This is a ruling in respect of an ex parte application filed by IMMMA Advocates. It was heard this morning. The applicants are applying for extension of time within which to publish the decree of this court in Commercial Case No. 140 of 2014. The application has been made under the provisions of section 93 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (hereinafter "the CPC") read together with rule 2 (2) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules"). The gist of this application in that on 27.02.2014, this court pronounced a default judgment in favour of the applicant and, in terms of sub-rule (2) (a) of rule of the Rules, the court directed, inter alia, that the decree in this case shall not be executed unless the decree holder; the applicant herein, within a period of ten days from the date of the said judgment, published a copy of the decree in at least two newspapers of wide circulation in the country. It happened that the applicant could not be able to comply with the foregoing order. The main reason ascribed to such noncompliance is, as can be gleaned in the affidavit of Ms. Linda Bosco supporting the present application, that the relevant decree was issued by the court and supplied to the applicant eleven days after the judgment was pronounced. By then they were already out of time by one day. Having so realised that they are out of time, they have preferred this application praying for the following orders: 1. The Honourable Court be pleased to grant the Applicant extension of time within which to publish a copy of the decree in accordance with Rule 22 (2) (a) of the Commercial Court rules; 2. That costs of the application be in the cause; and 3. Any other relief(s) as the Honourable Court may deem fit and to just grant. 2 At the hearing of this application this morning, the applicant was represented by Ms. Fatma Karume, learned counsel who sought to adopt the skeleton submissions she earlier filed in line with the provisions of rule 64 of the Rules as part of his arguments. The court granted the prayer. I have scanned the record to this case to verify the veracity of the applicant's contentions before me at the hearing of the application this morning and as deposed in the affidavit of Ms. Linda Bosco, learned counsel. My exercise has unveiled the bare facts that the delay is not the making of the applicant. Indeed, for some undisclosed reasons, the relevant decree which ought to have been supplied to the applicants on the date the judgment was pronounced, it was extracted and supplied to them eleven days thereafter. More than ten days within which the applicants ought to have published the same had lapsed. The delay therefore was not caused by the applicants. In the premises, I find the reasons put forward in support of this application sufficient enough to extend time within which to publish the decree. I only wish to add here by way of postscript that the rule is specifically designed to ensure that a party against whom a default judgment has been entered is made aware of the relevant decree. This time, for the purposes of compliance with rule 22 (a) (b) of the Rules, starts to run against the decree holder from the date when the default Judgment is delivered. Therefore, assuming that the decree is extracted on the 3 same date, it has to be published within ten days after the delivery of judgment. Thus, in terms of rule 22 (2) (b) of the Rules, the decree holder will have to start counting the twenty-one days from the expiry of the said ten days of publication. Cumulatively therefore, the execution process will legally commence after lapse of thirty-one days from the date of delivery of Judgment. In the upshot this application is allowed. The time within which the decree in respect of Commercial Case No. 140 of 2014 should be published in two Newspapers of wide circulation in Tanzania as dictated by rule 22 (2) (a) of the Rules, is extended to ten more days commencing from the date of this ruling. For the avoidance of doubt, the twenty-one days under rule 22 (2) (b) of the Rules, will start to run after the expiry of the extended time. The circumstances of this application are such that no order as to costs should be made. I make no order as to costs. DATED at DAR ES SALAAM this 23rd day of April, 2015. 4