HASS PETROLEUM T LTD VS RICHARD NEHEMIA GWAU PARSLEY LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 93 OF 2015 (Arising from Commercial Case No. 117 of 2014) HASS PETROLEUM (T) LIMITED FLEET LOGISTICS (T) LIMITED > ......................APPLICANTS VERSUS RICHARD NEHEMIA GWAU PARSLEY LIMITED j .............................. RESPONDENTS 18th April & 21st May, 2015 RULING MWAMBEGELE, J.: By a Chamber Summons made ex parte, the applicants - HASS Petroleum (T) Limited and Fleet Logistics (T) Limited - have proffered this application seeking for, inter alia, extension of time to advertise the decree of this court in Commercial Case No. 117 of 2015. The application has been made under sections 14 (1) and 46 of the Law of Limitations Act, Cap. 89 of the Revised Edition, 2002. section 95 and Order XLII rule 2 of the Civil Procedure Code, Cap. 33 of the Revised 1 Edition, 2002. It is supported by two affidavits; the first one sworn by Adronicus Kembuga Byamungu and the second one sworn by Mariam Tausi Mwaleni. The application was argued ex parte on 18.04.2015. Prior to this oral application, the applicant's counsel had filed oral written submissions as required by the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules"). Mr. Mutongore, learned advocate, appeared for and on behalf of the applicants. A brief background to the present application, as can be gleaned from the record is that the applicant procured a default judgment from this court on 02.04.2015 after the defendants; the respondents herein, defaulted to file a Written Statement of Defence. In that default judgment, it was also directed that the decree shall not be executed unless and until the provisions of rule 22 (2) of the Rules were complied with to the letter. Under rule 22 (2) (a), the applicants were required to publish a copy of the decree in at least two newspapers of wide circulation in the country within ten days from the date of the default judgment. It happened that the applicants could not comply with the order. The reasons given, as evident in the affidavit, skeleton written arguments as well as at the oral hearing are mainly that the default judgment was handed down on the last working day of the week and was followed a 2 Easter Holidays which were followed by a Public Holiday (Karume Day). Another reason is that the court could not avail the decree to them within ten days after the judgment. That is was not until 10.04.2015 when the copy of the default judgment was availed to them but without an extract decree. The extract decree was supplied to them on 14.04.2015, the learned counsel told the court. It was Mr. Mutongore's argument that the delay is not their fault. The learned counsel ascribed the delay to have been caused by the court as well as the public holidays. He thus submitted that they did not act negligently. Mr. Mutongore, learned counsel relied on Standard Chartered Bank (T) Limited ks Bata Shoe Company (T) Limited, Civil Application No. 101 of 2006; the decision of the court of appeal to buttress the proposition that the court can grant an extension of time if it is satisfied that an advocated acted with reasonable promptness and diligence. He thus prayed for the application to be allowed. Mr. Mutongore, learned counsel, had another from the bar. He prayed that should the court grant the prayer, due to shortage of space in the Newspapers, it should be ordered that the ten days should start to run after expiry of seven days. Having elegantly gone through the record of this case, I find myself in agreement with Mr. Mutongore, learned counsel that the circumstances of this matter are such that the applicants are not to blame for the 3 delay. The record is clear that the applicants' advocate applied for judgment and decree on the same date of the default judgment. It is also indisputable that the default judgment was delivered on the last working day of that week followed by five days which were exempt from court proceedings {dies non juridicus). This had taken half of the ten days within which the applicants ought to have published the decree as ordered by the court and as dictated by the Rules. The situation is exacerbated by the fact that the court did not avail the decree well in time. I have perused the file; the Exchequer Receipt voucher (ERV) and the endorsement on the decree vindicates the applicants' averment to the effect that the same was supplied to them on 14.04.2015. Mr. Mutongore's prayer made from the bar to the effect that if the application is granted the time should start to run seven days after the order is refused for two main reasons. First it does not appear in the affidavits supporting the application hence an afterthought. It was just made from the bar which is not acceptable. Secondly, it will be contrary to the dictates of rule 22 (2) (a) of the Rules. In the upshot, I find merit in the present application and would allow it. The time within which the applicants are to publish the decree extracted from Commercial Case No. 117 of 2014 in two Newspapers is extended to ten more days commencing from the date of this ruling. I further order that the decree should not be executed unless a period of twenty 4 one days from the date of expiry of the extended period of ten days has lapsed. Order accordingly. at W ES SALAAM this 21st day of May, 2015. » y '■■■ -® it St || , _____ _ IM MJ ! I ----- ---------- *> / J. C. M. MWAMBEGELE ___ ^ g ^ .E R C lA > JUDGE 5