COMMUNITY PETROLEUM LIMITED V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 4574 OF 2024 (Originating from Civil Case No. 10 of 2021 of the High Court of Tanzania, Moshi Sub registry at Moshi) COMMUNITY PETROLEUM LIMITED …………………… APPLICANT VERSUS ORXY OIL COMPANY LIMITED ………………………. RESPONDENT RULING 18/07/2024 & 25/07/2024 SIMFUKWE, J. The applicant herein, filed the instant application seeking inter alia, an order to set aside the dismissal order of this court dated 07/02/2024 and restore the trial of Civil Case No. 10 of 2021. The application was preferred under Order IX rule 6(1) and section 95 of the Civil Procedure Code, Cap 33 R.E 2019 and any other enabling provision 1 of the law. It was supported by the affidavit sworn by Advocate Edwin Silayo. In his affidavit, the learned counsel for the applicant deponed among other things that on the date when Civil Case No. 10 of 2021 was set for hearing he had another matter before the High Court of Arusha which was also a backlog. He stated that although both cases were of utmost importance, it happened that the land case at Arusha was to be concluded first as the presiding Judge was transferred to Morogoro sub registry. As such, all the cases before the Hon. Judge at Arusha were to be concluded. Mr. Edwin acknowledged that the letter from his office which was written to notify this court of his absence had no case number for the court to determine that the same was a backlog. He attached to his affidavit copy of the initial summons of the purported case, copy of the screenshot of the purported proceedings of Land Case No. 28 of 2021 and copy of proceedings of Civil Case No. 10 of 2021. In his counter affidavit, Mr. Wilbard John Massawe learned counsel for the respondent, disputed vehemently all the material contents of the affidavit. He deponed inter alia that: a) the purported screenshot evidencing “online proceeding” is wanting for not indicating which date the said proceeding was taking place and whether it was the same date when the suit before this court 2 was called for hearing. Also, it being electronic evidence and without authentication, it should not be relied upon by this court as the same could be from elsewhere. b) That, the purported adjournment letter is problematic for not being accompanied by summons; proceedings or invitation link to show that the purported other matter was indeed before Hon. Kamuzora, J or if at all there was such a matter. c) That, the applicant had ample time to request proceedings of that day in the purported land case, for that reason this court ought to draw an adverse inference. The hearing of the application, was done by filing written submissions. Mr. Gwakisa Kakusulo Sambo and Mr. Edwin Silayo, learned counsels argued the application for the applicant while Mr. Wilbard Massawe, learned counsel contested the application for the respondent. On the outset, the learned counsels for the applicant prayed to adopt their chamber summons, affidavit in support of the chamber summons and their reply to counter affidavit. In their submission in chief, the learned counsels submitted that the basis of this application is the dismissal order dated 07/07/2024 in which Civil Case No. 10 of 2021 was dismissed under Order IX rule 5 of the Civil Procedure Code (supra). Defending their failure to indicate a case 3 number in their adjournment letter, the learned counsels contended that the said error was slight omission and or slip of a pen taking into account of the truth and the history of conducts of this matter, that the applicant was never the source of the delay. They were of the view that the omission can be cured under the slip rule. They submitted further that advocate Gideon Mushi was appointed to address the excuse of the plaintiff’s advocate for the inconvenience which was to be caused. It was buttressed that; it is a long-established principle that in applications of this nature the conduct of the plaintiff before the alleged non- appearance should be taken into consideration. They cited the case of Bahati Matimba v. Jogro Enterprises Ltd, Misc. Civil Application No. 42 of 2022, HC at Iringa, in which Hon. A.E. Mwipopo, J at page 4 made reference to the case of Shocked and Another v. Gold Schmidt and Others [1998]1 ALL ER 372 in which the Court held that: “Applicant’s conducts before the alleged non-appearance should be taken into consideration in applications of this nature.” It was added that apart from the fact that the applicant has sufficient and good reason which led to non-appearance when the matter was called for hearing on 07/02/2024, justice will smile if the suit will be determined on merit. That, the remaining part is tendering exhibits and cross examination, thus, the matter should be concluded by being heard on 4 merit. The learned counsels were of the view that the respondent will not be prejudiced at all. Another reference was made to the case of Fredrick Salenga and Another v. Agnes Masele [1983] TLR 99 in which it was held that: “In the interest of justice, the law and practice require that unless there are special reasons to the contrary, suits need to be determined on merit.” Further reference was made to the cases of Mwanza Director MIS New Refrigeration Co. Ltd v. Mwanza Regional Manager of TANESCO Ltd & Another [2006] TLR 335 and Paulo Kitaida Mandira v. Mashaka Masanja Mabula, Misc. Land Application No. 24 of 2022 (unreported). Moreover, the learned counsels informed this court that this application was also filed well in time without any delay. That, the suit was dismissed on 07/02/2024 and this application was filed on 01/03/2024, 23 days only after the dismissal. They insisted that the same proves that the applicant has been diligent in prosecuting this case to warrant this court to grant what has been prayed in the chamber summons. The court was also persuaded with the case of Abdallah Zarafi v. Mohamed Omari (1969) HCD in which it was held that: 5 “There are occasions when a court is empowered by law to set aside its own orders. A trial court is empowered to set aside an ex-parte decree or an order dismissing a suit passed as a consequence of no- appearance so long as the person against whom the decree or order for dismissal of the suit is able to establish that he was prevented by sufficient cause from appearing in court on the material day.” Emphasis supplied In conclusion, the learned counsels were of the opinion that the applicant has managed to establish sufficient cause that he was prevented from sufficient cause from appearing before this court on material date. They implored this court to grant the application as prayed. Mr. Wilbard Massawe learned counsel for the respondent commenced his reply submission by construing two reasons for non-appearance from the submission in chief of the learned counsels for the applicant: 1. Attendance in another backlog case. 2. Previous conduct of the learned counsel for the applicant. The cited enabling provision, Order IX rule 6(1) of the Civil Procedure Code (supra) was reproduced as follows: 6 “6.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside and, if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.” From the foregoing provision, the learned counsel raised one nagging question: whether the applicant has advanced sufficient reasons for his failed attendance on 07th February 2024? He said that he would demonstrate in his submission why the raised issue should be answered in the negative. It was submitted that the applicant has spent substantial energy on appearance in a different case before another Judge on 07/02/2024 on a reason that it was an oversight that he did not mention the case or indicate if it was a backlog. Mr. Wilbard averred that the reason remains unjustified as it was that date. He observed that the learned counsels for the applicant seems to be harbouring a misconception that the matter was dismissed because they did not say it was a backlog or not. The 7 learned counsels for the applicant were faulted for producing a summons issued at the beginning of that case to indicate that it was indeed a backlog and a screenshot of what appears to be a mobile interface of a remote proceedings taking place as seen. The learned counsel for the respondent challenged annexure ES 1 in paragraph 4 of the affidavit of Edwin Silayo, which is a summons for appearance in court on 24th September 2021. He explained that, the indicated date was not the date the matter under discussion was dismissed for failure to show sufficient cause, that is 07/02/2024. Thus, the summons is irrelevant. Mr. Wilbard argued that the case number does not necessarily indicate that the matter was indeed a backlog. That, if that was the case, we would have been availed with a cause list, a fresh summons for the day under discussion or proceedings of that date. He revealed that, the purported proceeding has no details of that case for obvious reasons, there is no copy of an invitation email, where the link to attend online could have been shared. For that reason, annexure ES 2 the so-called screenshot could be from anywhere, any case, any lawyer and any date even if same lawyer. Mr. Wilbard contended that nothing can remotely suggest the relevance of the screenshot to Land Case No. 28 of 2021, before Hon. Kamuzora, J on 07/02/2024. 8 The authenticity of the screenshot was also challenged for not being demonstrated in terms of section 18 of the Electronic Transactions Act, Cap 442 R.E 2022. It was explained that nothing shows how it was made; where it was printed; how it reached the printer; which mode was used; how did the counsel end up appearing in a session with the name reading “Nelson Laselo? Was his image edited and affixed thereto? Was it photoshopped? Was it in respect of the same case which he is referring to, when was it taken? If so, was it on 07th February 2024? How was it scanned from the phone to the affidavit? Where is the case number? When it was captured how was the original image maintained to the end? Mr. Wilbard said that these questions could have been answered with affidavit of authenticity or paragraphs in the affidavit in support of the application demonstrating the conditions under section 18 (1), (2) and (4) of the Electronic Transactions Act. Two, Mr. Wilbard invited this court to take judicial notice that invitation to video calls to advocates are through emails or mobile phones. In this case, was it not more relevant to furnish this court with the email with invitation link pursuant to rule 10 of the Judicature and Application of Laws (Remote Proceedings and Electronic Recording) GN No. 637 of 2021, which provides that: 9 “10. Where proceedings are to be conducted remotely- (a) the court shall, at least seven clear days before commencement of the hearing, NOTIFY the parties that the matter will be conducted by remote hearing. (b) the notice under paragraph (a) shall state the date and time of the hearing, the relevant joining instructions for the remote hearing and a list of any other necessary requirements to facilitate the hearing. (c) At least three hours before commencement of the hearing, remote proceedings assistant, parties or their representatives shall be provided with the Court’s video conference link, password and instructions to access the service whichever is applicable….” Emphasis added From the foregoing, Mr. Wilbard stressed that remote hearing is not ambush. There is always available link, notice and joining instructions all sent either via email or mobile. He stated that where the law provides for the mode of attending such proceedings, it means that proof of such attendance should have been in respect of the mode of attendance available and not through a screenshot. He formed an opinion that the 10 counsel for the applicant is hiding something knowing that if the details were brought to light, they would not have been in his favour. Three, it was submitted further that absence of typed proceedings of that date before Hon. Kamuzora, J is raising even bigger eyebrow. Mr. Wilbard disagreed that it was impossible to obtain summons for ongoing cases. He explained that depending on the dates, one can request summons to be issued by the court for a particular date. Also, the learned counsel doubted the failure of the learned counsel for the applicant to obtain proceedings dated 07/02/2024 while the instant application was purported to have been filed on 01/03/2024, 23 days later. Mr. Wilbard also questioned absence of a letter requesting to be supplied with the alleged proceedings. He invited this court to draw an adverse inference against the applicant that there were no such proceedings. Four, it was stated further that assuming for the sake of argument that, the screenshot is what the counsel for the applicant says it is, if he had not known in advance that proof of those proceedings would be needed, why did he take it and save in his phone? The learned counsel for the respondent asked whether it was an afterthought and whether it was edited to fit the general excuse? He replied that no one knows because 11 nothing was deponed or said on its authenticity as already demonstrated above. Concerning the issue of previous conduct of the learned counsel for the applicant, Mr. Wilbard replied that, if anything, it speaks loudly against him and anything related to diligence. It was replied further that the same shows that, all the time when the court and parties were ready, the applicant was attending treatment. That, the court was never furnished with any proof. He demonstrated that on 21st February 2023, 15th March 2023 and 18th September 2023 the song was that the plaintiff was attending treatment in the US. No proof was shown to date. Second, on 22nd March 2023 we could not proceed because the plaintiff’s advocate filed additional documents but did not serve to the respondent necessitating an adjournment. It was contended further that on 07th February 2024 even if the applicant’s advocate was present, we could not have proceeded because no witness/plaintiff’s principal officer one Peter Kaale whose witness statement had been filed in court, was present that day. Therefore, it had nothing to do with the absence of Advocate Silayo but plaintiff’s general seriousness of not wanting to prosecute this matter. 12 It was observed that the previous conduct of the applicant demonstrates sheer lack of diligence and general desire to have this matter finalized on part of the applicant and his advocate. It was added that, there are two witness statements, but the advocate for the applicant always made a general request for adjournment without regard to the other witness who could have appeared so that he could be cross examined. Mr. Wilbard distinguished the cases which were cited by the learned counsels for the applicant. Regarding the case of Bahati Matimba (supra), the learned counsel said that the quoted words do not exist. Second, it was noted that in the cited case the applicant was trying to restore the case which was dismissed for want of prosecution after he was given wrong dates for filing submission by the counsel who held brief, while our scenario is different. The same was stated in respect of the case of Paulo Kitaida Mandira (supra) in which the applicant had confused the dates, while in the instant case there is no confusion of dates. Mr. Wilbard concluded that the application is bound to fail. He invited this court to hold so and dismiss it for failure to demonstrate reasons for not attending on 07th February 2024. In their rejoinder, the learned counsels for the applicant submitted that the learned counsel for the respondent failed miserably to grasp what had 13 been submitted in chief. They reiterated their submission in chief and stated that the applicant managed to adduce sufficient reasons for this court to grant prayers prayed in the chamber summons. Responding on failure to comply to section 18 of the Electronic Transactions Act (supra), the learned counsels for the applicant contended that the said section is not applicable to the case at hand. They gave the reason that the said photoshoots were deponed in an affidavit by advocate Edwin Silayo who verified that all that he deponed were true and correct. It was contended further that annexure ES-2 was not edited at all as it was the true and real picture taken when the proceedings were going on. They condemned advocate Wilbard for his failure to bring the affidavit of Nelson Laseko or Hon. D. C. Kamuzora, J to prove that advocate Edwin Silayo was not appearing before Hon. Kamuzora, J. Concerning rule 10 (a), (b) and (c) of the Judicature and Application of Laws (Remote Proceedings and Electronic Recording) Regulations (supra), the learned counsels for the applicant were of the view that it was not applicable to the application at hand. Their reason was that the link is not always sent 7 days prior to the hearing date. They said that the case which advocate Silayo was attending was a backlog and under urgency as Hon. Kamuzora, J was transferred 14 to another station. That, due to development of technology, in the video link system there is no password or formal instruction issued for one to access the service of video link as the respondent’s counsel tried to mislead this court. In regard to typed proceedings, it was reiterated that it was requested as indicated by ANNEXURE ES-6 attached to the reply to the counter affidavit filed in court. However, it was submitted that the proceedings were not supplied to the learned counsel as Hon. Kamuzora, J was in transition period to Morogoro her new station. Hence, it could not be possible at all to obtain the proceedings within 23 days. Concerning the conduct of the applicant, the learned counsels for the applicant reiterated their submission in chief. On the adjournment of 22nd March 2023, they alleged that despite the filing of additional documents, still the applicant’s counsel was ready to proceed with the hearing. That, it was the counsel for the respondent who sought an adjournment. Regarding the citing of the case of Bahati Matimba (supra), it was stated that it was a mere mis-citing as the applicant was intending to cite the case of Bilila Lodge Investment Limited t/a Four Seasons Safari Lodge Serengeti v. Okuli Kinabo Kimaro, Misc. Labour 15 Application No. 60 of 2022, High Court of Tanzania at Arusha, at page 14, 11th to 15th lines, where the court held that: “I am in consideration of the decision in the case of Shocked and another vs Goldschmidt and another [1998]1 All 372 where it was held that the applicant’ conduct before the alleged non-appearance should be taken into consideration in application of this nature.” It was rejoined further that the same was repeated in the case of Paulo Kitaida Mandira v. Mashaka Masanja Mabula, Misc. Land Application No. 24 of 2022, High Court of Tanzania at Musoma, at page 7, 12th line to 15th lines. The learned counsels for the applicant reiterated their prayers in the chamber summons. Having gone through the rival submissions of the learned counsels of both parties as well as their pleadings, the question is whether the applicant have managed to adduce sufficient cause for non-appearance on the 07th day of February 2024. Apart from the cited authorities, the learned counsels for the applicant relied inter alia on the initial summons dated 24th September 2021 to show that the case before the High Court at Arusha was a backlog; and the 16 screenshot of the proceedings alleged to be of 07/02/2024. At the same time the learned counsels agreed that in the letter which was written to seek adjournment there was no case number, parties of the case nor a cause list or summons to support the reason for seeking adjournment. The learned counsel for the respondent contested the application vehemently. In short, he said that the reason for adjournment as it was, remains unjustified. While I appreciate authorities cited by the learned counsels of both parties, with due respect to the learned counsels for the applicant, it is worth to note that if reasons for the adjournment were allowed to be stated later, no one could lose a case for lack of sufficient reason. I say so on the mere setting that the dismissal order dated 07/02/2024 is faulted based on evidence attached to the affidavit supporting this application and not the letter seeking adjournment. Fortunately, the issue of adjournment of cases is not a new subject in our jurisdiction. We have a plethora of authorities for our guidance. Order XVII rule 1 (1), (2) and (3) (a) to (f) of the Civil Procedure Code, Cap 33 R.E 2019 provides that: 17 “1. -(1) At any stage of the suit the court may, if sufficient cause is shown, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. (2) Where a suit has been adjourned at the request of the plaintiff or by consent of both parties, such suit shall be placed last in the list of pending cases (3) In every case under sub-rule (1), the court shall fix a day for the further hearing of the suit and may make such order as it thinks fit with respect to the costs occasioned by the adjournment: Provided that- (a) when the hearing of the suit has been commenced, it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds that there are exceptional reasons to be recorded by the court requiring the adjournment of the hearing beyond the following day; (b) no adjournment shall be granted at the request of a party, or parties except where the circumstances are beyond the control of the party or parties as the case may be; 18 (c) the fact that the advocate of a party is engaged in another court, shall not be a ground for adjournment unless that advocate is appearing before a superior court; (d) where the illness of an advocate or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant adjournment unless it is satisfied that the party applying for adjournment could not have engaged another advocate in time; (e) where a witness is present in court but a party or his advocate though present in court, is not ready to examine the witness, the court may, if it thinks fit, receive the evidence of the witness and pass such orders as it thinks fit dispensing with the examination in chief or cross examination of the witness as the case may be, by the party or his advocate not present or not ready as aforesaid; (f) in the event of an adjournment at the instance of the court, the reasons for the adjournment shall be recorded and the court shall strive to fix the hearing date within the shortest period possible but not more than thirty days.” Emphasis mine 19 From Order XVII rule 1 (3) (c) of the CPC (supra), it is crystal clear that an advocate being engaged in another court other than the superior court, is not a ground for seeking adjournment. My learned brother Hon. J. R. Kahyoza, J while dealing with a similar question in the case of Asha Ramadhani v. Janeth Ngodo, Misc. Land Application No. 10 of 2023, HC Manyara sub registry at Babati, at page 4 he observed that: “In order for an advocate to take advantage of paragraph (c) of rule 3(3) (sic) of Order XVII of the CPC, he must adduce evidence that he is engaged in the superior court on the date fixed for hearing.” Emphasis added Despite the restriction in the cited section, our courts have been exercising inherent discretion, though judiciously, by allowing adjournments where sufficient cause has been demonstrated. By merely writing a letter notifying this court that he had another case online before Hon. Kamuzora, J, did Mr. Edwin Silayo demonstrate sufficient cause? In the case of Christina Alphonce Tomas (As Administratrix of the late DIDAS KASELE DECEASED) v. Saamoja Masingija (Civil 20 Application No. 1 of 2014) [2016] TZCA 289 (22 April 2016) at page 3, the Court of Appeal stated that: “The Court has always discouraged adjournments on grounds of sickness not supported by medical proof. The learned advocate is aware or ought to be aware that the Court has to have evidence to support grounds for an adjournment. We totally discourage the idea of seeking adjournments not supported by concrete proof that they are genuine applications.” Emphasis supplied In our scenario, the letter seeking adjournment did not mention the case number nor any concrete proof that the learned counsel for the applicant was indeed appearing before Hon. Kamuzora, J as asserted. Without further ado, it is obvious the learned counsel for the applicant did not adduce concrete evidence to support his ground of adjournment, despite the fact that he was not appearing before a superior court. Even the annexures to the affidavit in support of this application are mere afterthoughts which do not suffice to move this court to set aside its dismissal order. For instance, a screenshot which shows the face of the learned counsel for the applicant, as correctly observed by Mr. Wilbard for the respondent, the document lacks authenticity. Also, the document has 21 no date, thus, it is difficult to rule out that it was taken from the proceedings of Land Case No. 28 of 2021 of the High Court at Arusha. Moreover, the learned counsels for the applicant averred that the applicant has been diligent in prosecuting his case. The learned counsel for the respondent faulted that averment. In rejoinder, they submitted that when Mr. Silayo filed additional documents on 22/03/2023 he was ready to proceed with the hearing but the learned counsel for the respondent prayed for an adjournment. Respectfully, it seems the learned counsels for the applicant are acting like drum makers (Kila mwamba ngoma huvutia kwake). They don’t want to admit responsibility for their failure to advance concrete evidence in the adjournment letter. As rightly contended by Mr. Wilbard, when the matter was scheduled for hearing on 22/03/2023 which was the last day of special backlog clearance session, Advocate Edwin Silayo filed 43 additional documents and served the counsel for the respondent in court when hearing of the matter was about to commence. Then, the learned counsel for the respondent prayed for adjournment on the reason that most of the documents which he was served with, were new. Thus, he needed time to go through the documents. Thereafter, the court granted the adjournment on the reason that being conversant with 43 documents 22 required time. In other words, the adjournment on 22/03/2023 was occasioned by the learned counsel for the plaintiff (applicant herein) who filed 43 additional documents lately. That was after the matter had been adjourned twice on the reason of sickness of the principal officer of the plaintiff which was never proved by concrete evidence to date. In the circumstances, there is no way Advocate Silayo Edwin or the applicant can successfully claim acting diligently. Taking into account the provisions of the law and case laws which I have cited herein above, I am of settled opinion that this application has no merit. Therefore, I dismiss it forthwith with costs. It is so ordered. Dated and delivered at Moshi this 25th day of July 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 25/07/2024 23