ESTHER HEMA SIMA

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 196 OF 2017 ESTHER HEMA SIMA (Administratix of the estate of SAMUEL MAJENGO ........ APPLICANT VERSUS 1. FIRST NATIONAL BANK TANZANIA LIMITED........... 1st RESPONDENT 2. TESTA LIMITED .......... 2ndRESPONDENT 3. LAZARO OBADIA MTANI .......... 3rd RESPONDENT 4. LEONARD RUSUMBAYA GWANIJE ........... 4th RESPONDENT 5. JOHN MNYIKA ........... 5th RESPONDENT 6. WILSON ISHENGOMA ........... 6th RESPONDENT 7. SHAMIM HAJI HONGOA ........... 7fh RESPONDENT RULING Date of the last order: 18/07/2018 Date of the Ruling: 23/08/2018 SEHEL, J. This is a ruling on application for extension of time to file an application for setting aside default judgment and decree in Commercial Case No. 125 of 2014 delivered on 22nd November, i 2016. The application was filed on 30th June 2017 and it is made under Section 14 (1) of the Law of Limitation Act, Cap.89. At the hearing of the application, learned advocate Lucy Mwang'ombe assisted by the learned advocate Eriki Rweyemamu appeared to represent the applicant while the learned advocate Innocent Mushi appeared to represent the 1st respondent. The 2nd , 3 rd , 4th , 5th , 6th and 7th respondents were absent though duly served with summons by way of publication in two widely circulated newspapers of Uhuru dated 19th October, 2017 and Habari Leo dated 19th October, 2017. Consequently, the applicant was allowed to proceed ex-parte them. Counsel Mwang’ombe informed the Court that the applicant is the administrator of the late Samwel Majengo Sima who was the 7th defendant in Commercial Case No 125 of 2014. She argued the applicant was not aware of the proceedings in Commercial Case No. 125 of 2014 and she only became aware on 15th December, 2016 as such she requested for copies of proceedings and judgement which were supplied to her on 15th May, 2017. It was the 2 view of the counsel for the applicant that the applicant took immediate action after receipt of the copies of judgment and proceedings by filing the present application for extension of time on 30th June, 2017. The learned advocate for the applicant submitted that it took the applicant time to file the application because she was also sick and was undergoing economic problems due to the mischief as she is now taking care of her family and she also resides in Singida as such it was difficult for her to make a follow up for setting aside default judgment in time. Counsel Mwang'ombe argued the reasons stated by the applicant are sufficient reasons therefore she prayed for the application to be granted. She cited the case of Benedict Mumello Vs Bank of Tanzania, Civil Appeal No. 12 of 2002 where the Court of Appeal of Tanzania held that an application for extension of time is entirely to the Court's discretion to grant or refuse it. The counsel also argued that there is illegality in the proceedings whereas in the cases of VIP Engineering & Co. Ltd and 2 3 Others Vs City Bank Tanzania Limited, Consolidated Civil References 6, 7, and 8 of 2006 and Principal Secretary, Ministry of Defence & National Service Vs Devram Valambhia [1992] T.L.R 185 where the Court of Appeal of Tanzania held that the question of illegality is sufficient reason to grant extension of time even if the respondent has not shown reasonable cause for the delay. The illegality which the counsel pointed out were: the notice of default judgment was made after the death of the 7th defendant; the Court was notified of the death of the 7th defendant but failed to make a legal representative party to the proceedings as required by Order XXII Rule 4 of the Civil Procedure Act, Cap. 33 as such the suit ought to abate against the 7th defendant pursuant to Order XXII Rule 4 (3) of the Civil Procedure Act, Cap.33; substituted service was done in contravention of Order V Rule 20 of the Civil Procedure Act, Cap.33 since the returned summons was not attached with an affidavit to prove that the defendant was either keeping away or summons cannot be made by any other mode. 4 With all these submissions, the learned advocate for the applicant prayed for the application to be granted. It was briefly replied by the counsel for the 1st respondent that the proceedings at pages 44 to 45 indicate that the 7th defendant was served through publication and on 9th May, 2016 one Elimboto Samwel Sima appeared to represent the legal representative and was advised by the Court on the procedure to follow. It was the view of the learned advocate for the 1st respondent that the applicant was well aware of the proceedings from 9th May, 2016 as such saying that she was not aware then it is a lie and the court should not entertain it. On the issue of illegality, he responded that the purpose of issuing summons is to inform a party including the legal representative on the proceedings. The counsel said the initial summons were received by the borrower, one Mr. Lazaro Obadia Mtani, the Managing Director of the borrower who informed the Court that he could not trace other defendants including the applicant then the Court ordered for re-service through advert 5 vyhich was done and in response of such advert the applicant appeared before the Court on 9th May, 2016. The counsel therefore argued that the applicant was properly served as such Order XXII Rule 4 (3) of the Civil Procedure Act, Cap. 33 does not apply. On reasons of sickness, the counsel for the 1st respondent submitted that such a reason is not stated in the affidavit in support of the application, it comes from the bar as such the Court should not entertain it. Counsel Mwakingwe re-joined by insisting her earlier submissions that the applicant was not aware of the proceedings and that pursuant to Order V of the Civil Procedure Act, Cap.33 all defendants ought to be served with summons. Having heard both sides arguments, the Court is invited to determine as to whether the extension of time should be granted or not. I prefer to start with the non contentious issues. It is not disputed that a default judgment was entered against one Samwel Majengo Sima. It is further not disputed that the default judgment against Samwel Majengo Sima was entered on 22nd November, 2016. Rule 22 (2) of the High Court Commercial Division Procedure Rules GN 250 of 2012 requires an aggrieved party to make an application for setting aside default judgment within 21 days from the date of judgment. It is on records that the applicant failed to make its application within time thus the present application seeking for extension of time. As I said earlier the application is made under Section 14 (1) of the Law of Limitation Act, Cap. 89 and Section 95 of the Civil Procedure Act, Cap. 33. Section 95 of CPC bestows upon the Court with inherent jurisdiction and it can only be invoked where there is no specific provision of the law. In the matter at hand the relevant provision of the law is Section 14 (1) of the Law of Limitation Act, Cap. 89 which provides: “Notwithstanding the provisions of this Act, the Court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for execution of a decree, an application for such extension may be made either before or 7 after the expiry of the period of limitation prescribed for such appeal or application."(emphasis is mined) It follows from the above provision of the law that the court has a wide discretionary power to extend time for lodging of any application, including an extension of time for filing an application for setting aside default judgment and decree. However, such discretionary powers can only be exercised if it is shown by the applicant that there is reasonable or sufficient cause to do so (See Kalunga and Company Advocates Vs National Bank of Commerce Limited [2006] T.L.R 235). It is repeatedly held by the Court of Appeal of Tanzania that what amounts to sufficient reason or good reason has not been defined but a number of factors have to be taken into account by the Court in exercising its discretionary powers. These factors have been well enumerated in the case of Lyamuya Construction Company Limited Vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported-CAT) that: __ 8 "(a)The applicant must account for all the period of delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance/ such as the illegality of the decision sought to be challenged." Let me now apply the above criteria to the matter at hand. We are told by way of affidavit that the applicant was not aware of the existence of the case and the decision made therein because no summons to appear, summons to file defence or notice for default judgment issued to the applicant. The applicant said sometime in December, 2016 it came to their knowledge that there was a case between the 1st respondent and the late Samwel Majengo Sima as such applied for copies of proceedings, judgment and decree. 9 Before going any further let me pose and ask myself whether the applicant was not aware of the proceedings. Counsel for the 1st respondent invited the Court to take judicial notice to the proceedings of the case. The proceedings show that on 9th June, 2016 one Elimboto Samwel Sima appeared and notified the Court that it is his second time to appear in Court. He further notified the Court that the person who is appointed as administrator is not healthy and Mr. Elimboto has no power of attorney to represent the applicant. It is thus as correctly submitted by the counsel for the 1st respondent that the applicant was fully aware of the existence of the suit way back in June, 2016 before the default judgment was entered. Since she was aware of the existence of the suit then as I said any party who is aggrieved with the default judgment, is required to file her application within 21 days from the date when the judgment was entered. That is, the applicant was required to file her application for setting aside default judgment by latest 15th December, 2016. But she did not do so and there is no other ► explanation as to why the applicant failed to file the application io within time. As she was fully aware of the existence of the suit way back in June, 2016 then I am not persuaded that the applicant was aware of the proceedings. I am alive that the counsel for the applicant told this Court from the bar that the applicant could not file it in time because she was sick. But such an excuse is not stated in the affidavit. It comes from the bar. It is trite law that submission from the bar is not evidence. In the case of Registered Trustees of the Archdiocese of Dar es Salaam Vs A the Chairman Bunju Village Government and 11 Others, Civil Appeal No. 147 of 2006 (Unreported) Court of Appeal of Tanzanian said: “............. submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence.’’ 11 It is further pleaded by the counsel for the applicant that there are irregularities as such the Court should grant extension of time. The alleged irregularities are the non issuance of summons. The issue of not being issued with summons could have been one of the reasons to be advanced in the application for setting aside default judgment but not for extension of time. At this moment the Court is more concerned with the explanation given for the delay and as I have said there is none. In the end I see no merit in the application for extension of time. The application is hereby dismissed for lacking merit. The first respondent shall have its costs. It is so ordered. DATED at Dar es Salaam this 23rd day of August, 2018. 12