equity bank t ltd vs anne sara komba ta emerald house 2022 tzhccomd 355 10 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 165 OF 2022 (Arising from Gommercial Case No.10 of 2022) EQUITY BANK (T) LIMITED............................................. APPLICANT VERSUS ANNE SARA KOMBE T/A EMERALD HOUSE............... RESPONDENT RULING Date of Last order: 07th NOVEMBER 2022 Dateof Ruling: 10th NOVEMBER 2022 A.A. MBAGWA, J. This is an application for extension of time within which to publish a decree arising from a default judgment in Commercial Case No. 10 of 2022 which was delivered by this Court (Hon. Maruma J). The application has been brought by way of chamber summons made under rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012 and section 93 of the Civil Procedure Code. Further, the application was supported by an affidavit sworn by the applicant's counsel one Seni Songwe Malimi. The deponent states that on, 29th July, 2022, this court delivered a default judgment in favour.of the applicant following the respondent's failure to i file a written statement of defence. It was further averred that the judgment was delivered by Hon. Mpaze, Deputy Registray in the presence of Christabella Madembwe, learned advocate from K &M (Advocates) on behalf of the applicant. However, the said Christabella Madembwe left their law firm shortly after the delivery of judgment. According to paragraphs 5 and 6 of the affidavit, Christabella did not properly handover the case file at the time of her exit as such, the matter skipped the firm's attention until in August, 2022 when the office, during review exercise, discovered that the decree was not published within ten days as required under rule 22 of the of the High Court (Commercial Division) Procedure Rules hence this application. The application was not contested as there was no counter affidavit filed by the respondent. This was due to the fact that the respondent did not appear even in the main suit i.e., Commercial Case No. 10 of 2022, a fact which resulted to the default judgment. When the matter was called on for hearing, the applicant was represented by Seni Songwe Malimi, learned advocate. As hinted above, the application was heard ex parte as the respondent did not file counter affidavit nor was, he present on the hearing date. Submitting in support of the application, the applicant's counsel adopted the affidavit to form part of his oral submission. The counsel expounded 2 that the applicant was seeking extension of time on the reasons advanced in the affidavit. He continued that, as per the requirement of rule 22(2)(a) of the High Court (Commercial Division) Procedure Rules, a default judgment has to be published within ten (10) days of its delivery but this was not done due to reasons beyond their control. The applicant's counsel further submitted that when the judgement was delivered before Hon. Mpaze, Deputy Registrar, the officer from their law firm one advocate Christabella Madembwe appeared but unfortunately, she later quitted their office without proper handing over of the case file. Consequently, the default judgment was not published within the prescribed time of ten days as per the law. The counsel said that non publication of the default judgment would cause two consequences. One, the applicant cannot execute his decree and two, the judgment debtor would not be afforded the second opportunity to oppose the matter. On the above submission, the counsel prayed the court to grant the application on the ground that the omission was inadvertent. Upon navigating through the submissions and deposition along with its annexures, it is undisputed that there is a default judgement and decree in Commercial Case No. 10 of 2022 which was entered against the 3 , . , 1 respondent herein as clearly exhibited through annexures (K&M-2) (a) and (b) attached to the affidavit. It is further common cause that the said default judgment was delivered on 29th July, 2022 but the decree was not published within ten days. As such, the applicant prays for this court to extend the time within which to publish the default decree in order to comply with the requirement of rule 22(2)(a) of the Rules. Having considered the affidavit and submission by the applicant's counsel, the issue for determination of the matter is whether the applicant has demonstrated sufficient grounds to warrant him extension of time in order to publish the default decree in Commercial Case No.10 of 2022. It is now a well-established position of law that there is no hard and fast rule as to what constitutes sufficient reasons for grant of extension of time. Rather, sufficient causes are determined by reference to all the circumstances of each particular case. See Regional Manager, Tanroads Kagera vs. Ruaha Concrete Co. Ltd, Civil Application No. 96 of 2007, CAT at Dar Es Salaam. In determining the good cause, courts have been invariably taking into account various factors including but not limited to length of delay involved, reasons for delay, the degree of prejudice, if any, that each party is likely to suffer, the conduct of the parties and the need to balance the 4 interests of a party who has a decision in his favour against the interests of a party who has a constitutionally underpinned right of appeal. See Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No. 392/01 of 2020, CAT at Dar es Salaam, Paradise Holiday Resort Limited vs. Theodore N. Lyimo, Civil Application No. 435/01 of 2018, CAT at Dar Es Salaam and Ludger Bernard Nyoni vs. National Housing Corporation, Civil Application No. 372/01/2018, CAT at Dar Es Salaam. The applicant has sufficiently demonstrated in his affidavit that the failure to publish the decree was due to inadvertence that occurred during handing over of the case file when Christabella Madembwe was leaving the office. Moreso, the applicant stated that the omission was noted during the review exercise hence the applicant had no other option than to bring this application. Admittedly, from the dispositions above, it goes without saying that there was no negligence on the part of the applicant nor can it be said that the applicant's conduct is malicious. Besides, I do not see any prejudice that would be occasioned by extending time. It should be noted that the High Court (Commercial Division) Procedure Rules are silent on the power of the court to grant application of this 5 nature. However, rule 2(2) permits application of the Civil Procedure Code in case of lacuna. In the premises, I am satisfied that this court, in terms of section 93 of the Civil Procedure Code, is enjoined to deal with application at hand. On all the above account, I am of the considered findings that the applicant has demonstrated sufficient .cause to warrant his extension of time. Consequently, I grant the application. The applicant is therefore given ten days from the date of this ruling to publish the decree. I make no order as to costs. It is so ordered. counsel Queen Allen and in absence of the respondent this 10th day of November, 2022. A.A. Mbagwa JUDGE 10/11/2022 6