henry erasto nginila ta nginila office solutions general supply vs ramani io company ltd 2023 tzhccomd 264 7 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC. COMMERCIAL APPLICATION NO.89 OF 2023 (Arising from Commercial Case No.03 of 2023)

HENRY ERASTO NGINILA t/a NGINILA OFFICE SOLUTIONS & GENERAL SUPPLY..................................................... APPLICANT VERSUS ’’III],. RAMANI. IO COMPANY LIMITED....... RESPONDENT li h' n ih. m ik .diih Date of Last Order: 11/07/2023 Date of Ruling: 07/08/2023

RULING

NANGELA "lib ’P ™lh Law o^|mita^pn[|A^ Cap^S R.E 2019. In brief the Applicant |i. That, this Honourable Court be pleased to grant an order for extension of time for the Applicant to file an application to set aside orders of this Court dated 03rd of May 2023 concerning to the hearing of Page 1 of 8 Commercial Case No.03 of 2023 ex-parte.

2. Costs of this application be provided for.

3. Any other reliefs this court may deem fit to grant. On the 11th of July 2023 this matternwas called on for ...... orders. On the material date, Mr. FrankONtuta, learned counsel "'in,... uh' appeared for the Applicant while‘Ms. Mariam Jshhpil appeared for the Respondent. This court'si^ir^yd&wefje for the parties iiiii Ih to file their respective a'Mdavitsland ’proceed to dispose of the an S|hih *’hb 11 III 'I * II * matter by way oflwritten sdomiss onsl' A schedule of filing their ihi Hlh b jOiRlhi... hhi» ,. . . . , respective saffida^ ts and written submissions was given and 71 < r 7 M(h, ''IH I H|lh Ih l|ln his sufimissibn the Applicant urged this court to grant H|||| * j the applicata^land extend the time within which the Applicant will lodge his application for orders setting aside the court's order dated 03rd of May 2023, which allowed the Respondent to proceed with an ex-parte hearing of the main suit, i.e., Commercial Case No. 3 of 2023. Page 2 of 8 He submitted that there are sufficient reasons for granting the application as disclosed in the supporting affidavit of the Applicant. In the affidavit relied upon by the Applicant, the only reason disclosed therein regarding why at the date the order was given the Applicant was absent in codk is sickness that 1 l||h • till befell on the Applicant on the materia 11 date. A sick, sheet was ’lb hili hll'' attached as

"Annexure HNE." % ’hh.dtll H ^Hii> The Applicant submitted th-at ^titheitimfe of his sickness he had just engaged* a law fi;rm sijjipe he was all along II? ^l||i unrepresented andkthafe the lawyer engaged had only perused the files to'^| clel^r wifej|the^a*cts of the case. d iT&^esfe a counter affidavit and written submissions to’challenge the application. In the submissions that this court should not grant the prayers sought. He contended that, the Applicant has not been able to account for the delays between 3rd of May 2023 to 9th May 2023. Page 3 of 8 In a brief rejoinder the Applicant contended that, there has been an account of the days constituting the delay as those are days when the Applicant was sick as the sick sheet ("Annexure HNE") shows. Moreover, the Applicant was also looking for a lawyer to represent him in court as he was unrepresented. In view of the rival submission^feijrj^ bofeljparties, the ■i|ll ’Ik ^i|lhi|h 'h||P issue to be responded to is whetn^r^bas^Cjllon1'^ facts as disclosed in the affidavits'fand^tee^blbhissiofes filed in this ......... ........ ........ ......... court, it will be appropriate to gfoijjt ^^application. th^application. As I stated^ereirji|above^lne main reason for the delay to act withiin time is that the Applicant was sick. A sick sheet I|h /H uh 'll* iiiiiiiniihu ?ii| ” "Ulin,, Tc .. was jannexedito I 'Mi. 'evince '< ‘that

fact. 'in essence, where there is a proof of sickness, an hi Jp application may be granted. This court, (as he then was) held in the case of Pastory J. Bunonga vs. Pius Tofiri, Miscellaneous Land Application No. 12 of 2019 (unreported), and, regarding a situation where sickness is relied upon as a reason for ones' delay to act, that: Page 4 of 8 "Where it was on the balance of probabilities proved, sickness has been good and sufficient ground for extension of time yes. But with all fairness the fact cannot be founded on mere allegations. There always must be proof by the applicant that he fell sick and for the reason of sickness he was reasonably^ consi(j#iWg|.v for a lawyer to represent him in In viWilof the above, since the Applicant is a lay person, getting the service of a person learned in law was, and has always been, a sufficient ground which may make a court to condone a delay to act. Page 5 of 8 The importance of legal representation when sought by a party to a case cannot be over emphasized. In the case of Pascal Kitigwa vs. Republic [1994] TLR 65 (CA) the Court of Appeal of Tanzania observed that: In the case of Laurent Joseph and another vs. Republic (3) we had(the occasion to observe ,on the importance of affording opportunity to accused persons to'l^ave l^gal .the party of an advocate h M h *uh and tna^of Haipna Said vs. Republic [1991] TLR 124, this court,

MwaSWsanya J., (as he then was), made it clear that, the right to be represented by a lawyer is a constitutional and statutory right. For that reasons hereabove, it is my humble view that, where a litigant has delayed acting because he was looking for Page 6 of 8 a lawyer who would represent him in court, such a factor should be taken with the gravity it deserves. It is my findings, therefore, that, where an application for extension of time is premised on such a factor, that fact will be a sufficient ground to allow that application. In the upshot, there being proof of sickness on the part lib HHIhh for an advocate to represent hinrlin coui^||thetep exists an ample reason why this court sljiotai|Aceed to grant the orders iJ ThatM|jthe Applicant's prayers for l|’ ^efemsion^’ of time are hereby Ik ‘‘HIP hlh ’granted and time is extended for I him to file an application to set aside the orders of this court dated 03rd of May 2023.

2. That, the said application for setting aside the orders of this court, be filed in court within 14 days from the date of this ruling, Page 7 of 8 i.e., on or before the 21st of August 2023.

3. That, the granting of this application is with costs as prayed. It is so ordered. DATED at DAR ES SALAAM ON THIS 07™ '^ OF AUGUST 2023 illii,„ 'l|hlii, Page 8 of 8