hashi energy t ltd vs richol co ltd other 2015 tzhccomd 2130 14 december 2015

£N'TH£ HIGH COURT QF TANZANIA ’ (COH^ERCiAL DIVISION)

AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 143 OF 2015 (Arising frorr>Commercial Case No. 149 of 2014) HASH I ENERGY (T) LTD .......... ....... ........ .................. APPLICANT

VHRSUS aiCH O t CO. LTD SINCSDA OOPEL PETROL STATION ! > KC» BANK fT) LTD .............................. RESPONDENT i KHAM XS M A G A M 6A i 2'^?:ov£nbe:'S' i* ^OiL 3.: Mr Matiinda, learned counsel, has filed this application on behalf of the aopJ:c.ant HAS HI Energy (T) Ltd who is the plaintiff in Commercial Case No. 149 of 2014. The applicant seeks the indulgence of this court to extend time within which to file a Reply to the Written Statement of Defence and a Written Statement of Defence to the counter-claim raised by the 4th defendant; the 4th respondent herein. The application has been taken under rule 2D (2) of the K;gr- Court (Co^rrsrcra? Division' Procedure Rules, 2012 - GN No. 250 of 2012 and sections 93 and 95 of the Civil Procedure Code, Cap. 33 of tne Revised Editor'.. 2007, I1: •;.jpooru:ri -:*v j-n affidavit s/'/om in by Mr. Martin Matunda; learned connse:- » The application was argued before- me*; or: 2^1.1 .>'015. our tne wnich Mr Matunda, learned counsel, .appearea for the apn-'cant. Mr. Msuy?- and Capt. Benders, learned advocates '-appeared the- D"* and 4L;' respondents i respectively. There had previously bee- .made s<*» c-rce^ :n the ma?r. suit, to proceed exparte against the: Is1 ana 2S*‘ raspor^nvs. Tha oral nearing was preceded by the parties fiilrg skeleton wdtte- arguments as dictated by the provisions of rule 64 of the High Court •Ccmmerc.a:.

Division) Procedure Rules, 2012 - G N No, 250 of 2012., .The main reason for delay as can be gseanec? from ‘die aff;cavri In support of the application and tne skeleton a 'g ^ e n rs ear.ier n!ed as wet* as tne ora! suomissions at the hearing is chat v'ir. Metunca's «avv Firm was served with the 4tn respondent's Written Statement of Defence wn;qn contained a cci/ster- claim on 21,05.2015. However avay cou»u no" rep.v >r* time because o* lack of special instructions from Dr, At-^ehan Aran, rhe 0 :recco-' of the applicant The said Dr. Asmanan Adan ms. aMecediy, on safer; in Mairobi. That Mr. Matunda talked to Dr Asmanan Ac:a.; un 0B...0C ?.0;ib only ;:o real-?.e she was in Nairobi and that she wculo be bsc* on 18,-;6,2015 v^Me the expiry of the-21 days within which they could "lie a Y^tten $ r* i-~ s??t cf Defence to the 4;ri defendant's coumer-clain v^as c*k i:-.,06 .20;lS. While Mr. Msuya, learned counsel for. the 3 " :;\spondent had notning tc say lr respect of the application, the averments bv rhe. .earned counsel ;for the applicant have been strenuous!y.,:cuntered oy Cap;:, bendera, learned counsel for'.the 4sr' respondent. ■ - Caot Senders, .earned' counsel, states in the counter-affidavit and skeleton arguments as weH .a*s during the oral hearing of the a p p lic a te that the applicant h&s not shown good cause for'the delay to tue the documents for whicn.”e'xten5lon of

time to file them is sought. The learned counsel states that the learned counsel for the applicant had talked to the Director of the plaintiff company on 06.06.2015 and the applicant's counsel does not state what matters were not briefed to him, he argues. The lesmed counsel ’also counters that the fact that the Director of the plaintiff was in Nairobi does not nave any iota o* truth as it is not substantiated by documentary evidence, say passport extract or other like documents. He also states that the applicant being a legal person, there are other directors of the piamtiff vvhc cou'd do the briefing and instruction and the applicant's counsel has .not stated-anything about their whereabouts, • In a short rejoinder, Mr. Matunda, learned counsel, states that the briefings and instructions could not be completed by phone. As for the lack of extracts from Dr, Asrhahan Adan's passport, the learned counsel rejoins that the application was tiled before her return, on 18,06,2015. That Dr, Adan Is the one who signed, the ptedings -n the suit and that all the relevant documents were In her* possession, Having ristenec weii to the submissions of the Seamed counsel for the applicant and ^th respondent and hav»ng gone through the affidavit, the counter-affidavit and the skeleton arguments, I am satisfied that the applicant has not shown sufficient reasons for the delay and thus it Is not

entitled to the ordens sought. I say so because the apoiicant was served with the 4th defendant's \NSD on- 23,35 2015 (according to the 4th defendant) and 3 therefore had seven days within whicn vo flic :* :v;p!y the'ee/h These a^e the dictates cf a proviso to Order VII; ru*e 13 of tne TPC whin'"* provides that 3 ii- § ; ..* ' reply to the written statement o'* aefence sh^, be presented within seven days cf ser/ice. Thus when Mr. Matunda, learned ecunt-.o, c^ ed vis cuent on 06.06.2015 he was already 'out of time because he *»as supposco cc rl;e the reply to the WSD within seven days after service, this'delay ra? not neen expla ned away by the learned counse** neither ;n nis nfneavit s^psorting the sppiicaton nor his skeleton arguments.’ Neitna was this delay ~occuntec fo\ ?t the rrai nearing of the aptpi-ication. As for the WSD to the counter-claim, :n terms of Grbe: Vl?I rule 1 • (1) of the CPC, the same was supposed to be presented w;th:n 2 J covs service., The reason why the WSD to the counter-claim was no; fued \o rime, as already alluded to above, has been explained to be the absence of the Dr. Asmahan Adan; the Director of the applicant company. Her absence, as rightly stated by Mr. Ser.cera, learned counsel for the 4?t' -e^pondent nas not been substantiated. I arn not ready to accept Mr. Marunda's contention to tne effect that the application lacks, such.

r,uibst>-nt::<den because tne appiicat'on was filed before Dr. Asrnahan Ariar- returned' on 18.06.7015.. *Such explanation cannot be a c c e p te d in thus g-obn; .niiace where courier services are readily available let alone the fact that the said Dr, Anan was in Narcos; the Capita! City of the neighbouring country -Afterc, in addition to couner services,, buses piy on dally b?s^. to and *n:- and no. explanation has' been made why such services were not, re sorteo to, to reinforce the reasons ?or deiay. And as if to cl inch the matter, the. learned counsel learnt that his client was outside the country on- 06:06.2015 Dut the present application was filed on 17.06.7015 before, he** return. The' delay for *1 days from the moment the learned counsel learnt of his client's’ absence to the time of filing this application has not; been .accounted for. This is exacerbated by the fact that tile teamed counsel was made aware that his client would not be back until 18,06.2015. It is obvious that the learned counsel did not wait for Dr. Adan to file the application. 7 reaiiy find no plausible explanation why Mr. Matunda, * i learned counsel acted tne way he aid. If anything, the applicant's counsel r,d's exhibited inaction ana negligence for his failure to act promptly. In ' W Vtlam M & iaha B u fa ro b w a . Vs R Criminal Application No. 5 of 2005 (Mwr.nza - unreported), -crowing S h a

n ti Vs H in d o ch a a n d O th ers [1973] i EA 207, a principle s laid that in applications of this nature, a party applying for extension of time should not be negligent in the delay. It is trite law that an aoplicstion of this nature will only succeed upon the applicant advancing sufficient reasons to the satisfaction of the court why the step for wNch extension of time is sought; in this case filing the repiy to the 4th defendant's vVSD anc the VVSD to the its counter-claim, was not taken in time If a document :s not fiied in time, special circumstances have to be shown dv the applicant for extension of time to file the same to issue. In the case at bend, the applicant'’has not explained b the satisfaction of the court' why it did not file the reply to the WS.O of the 4th defendant within seven days ss.sq u ire d ov .tHe lew. Neither, has .it explained to the satisfaction of the court why the present application was filed on 17.06.2015 while the applicant's counsel learnt of Dr Adan s aoserce m b and that she would be back on 18.06.2015^ There was a contention by far. * Matunda, learned counsel for the applicant, in ‘ the last para of his affidavit to the effect that "it is desirable to grant the enlargement of time being sought in order to accord the Applicant ? fa ir. opportunity to be heard in this case’ , I'agree. However, I wish to remind the learned counsel that this

oeing a court of taw (not a court of sympathy} wi«i only grant such application upon being snown sufficient reasons for delay, Inaction and negligence on the part ov the applicant or his advocate will not- be condoned bv the court - see: M iw e ffe iS B z n k o f T&nzante [2006] 1 EA 227 (CAT) $nd Kaiunga a n d Com pany J&di/ccatz > Vs Nations? B ank » of Commerce [2006] TLR 235 In the K a lu n g a case (supra). the. Co-rt of appea:, g'BppKnc with a somewhat similar situation as is in the instant case, ha-u ih :o ro s^v 'The learned Advocate. concepoated cn evp:a!ning the reasons as to wny :eavs to aopea! -ncu.ic be granted. Where there :s 'nac^’or. or dev.ay an tne part of the ap3i?cant, cvare ougnc to be ^on-e Kind of explanation or materia! to ena&ie the court to exercise the ciscretion ..." The Court of Appeal wenr on: "This court has discretion to extend time but such extension ... can only be done if 'sufficient reason' has been given". I also wish to remind the learned counsel for the applicant that rules of procedure must be obeyed. Rules are made to be followed. As already shown above, the reply to the 4th defendant's WSD ought to have been filed within seven days of service and the WSD to the 4th defendant's counter-claim ought to have been filed within 21 days of service. The applicant has presented no sufficient material upon which this court can exercise its

discretion to extend time within which to file the documents. I wish to associate myself with what was stated by Lord Guest in an English. decision of R atn am Vs C u m arasam y a n d A n o th e r [1964] 3 All ER 933, at 935 at which His Lordship stated: "The rules of court must prim a •facie be obeyed and, in order to justify a court in extending time during which some step in procedure requires to be taken there must be some material on which the Court can exercise its discretion. If the law were otherwise any party in breach would have an unqualified right to extension of time which would defeat the purpose / of the rules which is to provide a timetable for the conduct of litigation." [Emphasis supplied]. • 7 The foregoing quote was followed with approval by tne Court of Appeal in G o d w in Afd e w e si and K a ro li Ish e n g o m a Vs T anzania A u d it C o rp o ra tio n [1995] TLR 200 in which an applicant had a one day delay in filing a notice of appeal. The Court of Appeal (Mnzavas, J.A) held - I quote from the headnote - that: "The rules of court must prima facie be obeyed and'in order to justify extending time during which some step in the procedure requires to be taken there must be some material on which the court can exercise its discretion". in the case at hand, apart from the absence of Dr. Adan, which I have found and held to be frivolous and therefore

unacceptable, there is no other material accounting for the delay in filing the reply to the 4th defendant's WSD and the WSD to the 4th defendant's counter-claim, upon which this court can exercise discretion to extend time within which the applicant can fiie his documents. In the same line of argument, the Court of Appeal had another opportunity to restate the law through Kiieo, J.A in B u s h iri H assan Vs L a tifa L u k io M a sh a yo Civil Application No. 3 of 2007 (.jnreported) in the following terms: ‘ ■ "Delay, of even a-single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken". 8 And, -to reinforce this point a little bit further, I wish to quote the words of Rustomji in nis book titled Law of Limitation, 5th Edition as quoted in D aphn e P a rry Vs M u rra y A le x a n d e r C arson [1963] 1 EA 546. The learned author stated at p. 88 thus: "Though the court should no doubt give a liberal interpretation to the words 'sufficient cause', its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to

the appellant." I really, am very sympathetic with the applicant, for the outcome of this ruling may be catastrophic to it, However, as said above, this being a court of law will not be moved by sympathy. Sympathy has never been a ground for exercising discretion of this court - see: A m o s S h a vu Vs T.A M song e & 2 others, Civil Case. No. 128 of 1993, an unreported decision of this court (Bahati, 1) and M w a rig i Vs M w a n g i [1999] 2 EA 234; a persuasive decision of the Court of Appeal of Kenya. For the avoidance of aoubt, I must state at this juncture that, I am aware that some of the authorities cited abox/e were dealing with applications for 9 extension of lime to file appeals out. of »:irne', However, I have no scintilla of doubt that the principle can be applicable to situations like the present one. All said and guided by the authorities discussed above, the applicant having failed to show sufficient reasons to my satisfaction why it did not fiie the reply to the 4th defendant's WSD and the WSD to the 4th defendant's counter-claim within the prescribed time, I find no merit in this application and proceed tc dismiss it with costs to the 4 :h respondent. Order accordingly. DATED at DAR ES SALAAM this 14th day of December, 2015. j Jj C. M. MWAMBEGELE

JUDGE 10