hijri abdallah kapikulila vs ncba bank tanzania limited 2022 tzhccomd 127 19 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 176 OF 2021 (Arising from Commercial Case No. 116 of 2016) BETWEEN HIJRI ABDALLAH KAPIKULILA.............................. APPLICANT VERSUS NCBA BANK TANZANIA LIMITED A (Successor in title of the defunct NIC Bank Tanzania Ltd ...^RES PON D'ENT . X\ X Date of last order: 29/03/2022 \" / Date of Ruling: 19/05/2022 \\ X RULING A Vr* NANGELA, J. / \ V This Ruling results from an application filed by the Applicant herein under section N(l).ofthe Law of Limitation Act, Cap 89 R.E 2019, Section 95, of the Civil Procedure /> V'A }; Code, Cap 33 R.E 2019 and 43(1) of the High Court (Commercial Division) Rules, GN No. 250 of 2012 amended. Z< z? J L The ^ppIiGatiori" has been brought by way of a chambef^surnrrton^ supported by an affidavit of Ms Leticia Msechu, who is the Applicant's advocate. In particular, the prayers sought were as follows, that: (a) This Honourable Court be pleased to extend time to the Applicant within which to apply to the Honourable Court to set aside the order dated 7th October 2021 which dismissed the Counter Claim of the Applicant for want of Page 1 of 11 Prosecution in Commercial Case No. 116 of 2016. (b) Costs of application be provided for. (c)Any other order or relief(s) the Court may deem proper and fair to grant. The Respondent has contested the application by filing a counter affidavit. Before going to the /foots of Athis application, let me set out some facts which, gave rise to it. Briefly stated, this application rests on the Commercial Case No. 116 of 2016, in which "the Applicant sued the Respondent claiming for the following reliefs; (i) Payment of the outstanding loan amount'of fshs. 160^562,539.53. (ii) Payment of general damages to be assessed by the court. (iii) payment of interest at the rate of 20% per annum on the principal sym of Tshs. 160,562,539.53 from 06th September 2016 till full payment. (iv) Payment of Court's interest on (b) above at rate of 12% from the date of judgment until full payment. (v) Costs (vi) Any other reliefs) this Honourable Court deems fit and just to grant. Page 2 of 11 ALTERNATIVELY (vii)Sale of Motor vehicles with Registration numbers T 988 CRP make Yutong Bus, T 662 DBV make Yutong Bus and T 278 DFA make Yutong Bus. (viii) Costs (ix) Any other relief(s) this Honourable Court deems fit and^ just to grant. Having been served with the plaint,the Applicant (Defendant) filed his written statement of Defence, and thereafter an amended written statement of Defence in which he raised the Counter- Claim. iJpbn the completion of the pleadings together witK.thelnediation, which was unfruitful, the parties J were ordered to file their witness statements. Both parties lodged a single witness statement to be relied tipgndn their respective cases. When the \rriatter was set for hearing, the advocate of the " Plaintiff/(Respondent herein) informed the Court that, the intended witness for the plaintiff could not be traced and, a formal application was filed to substitute the witness statement. The Application was dismissed by Hon. Sehel, J., (as she then was). Subsequently there was a sequence of applications in the Court of Appeal, following the dismissal of the main suit as the witness statement was struck out from the record. Page 3 of 11 After all such applications in respect of the main suit, a prayer was made to continue with the counterclaim because it was a separate suit. However, later, the counterclaim was, on 7th October 2021, dismissed as well for non appearance of the Plaintiff in the counter claim. Following that order, the Plaintiff in the counterclaim was aggrieved and, hence, this application. When this application was called on for the hearing on 29th March 2022, the Applicant was represented x b/^Mr. Octavian Mshukuma, learned advocate,^, and> Ms Prisca Nchimbi, learned Advocate represented .the Respondent. The matter was argued orally. ^<in1s\submission in support of chamber summons, and relying further on the affidavit filed in support of the application as7 well as the skeleton argument filed irjztfns Court, vyhich he adopted to form part of his submission, Mr Mshukuma, the learned counsel for the Applicant❖submittedjp' brief that, there was a main suit which was consolidated with counter claim in the manner that’, there Vwere two suits in one suit which were V\ // independent to each other, although the main suit was also dismissed sometimes on October 2018. He submitted that, following that dismissal, the Plaintiff initiated a revision process in the Court of Appeal of Tanzania, and, therefore, the counterclaim was adjourned generally paving the way to the revision process, as evidenced in the Annexure HAK/1 to the affidavit. He Page 4 of 11 contended that, the revision proceedings, which was revision No. 561 of 2018, was also dismissed on 3/1/2020. There after there were a series of applications but the bottom line is that, the prayer of the applicant to proceed with the hearing of the counter claim was refused due to the fact that there was a pending appeal to the Court of Appeal. Mr Mshukuma submitted that, as a matter of law, the granting of the extension of time is entirely ir^tlie discretion of the Court, upon good caused being adduced. According to him, the Applicant filed this application for\extension of time due to the reasons that, the Applicarit>was Pnaware of the dismissal of the counterclaim on 7/10/2021. According to Mr Mshukuma, the Applicant became aware only on 16th Novembek 2021 when he perused the z A ’ v> Court file as perAnnexure HAK/6. He submitted that, after the knowledge :pf that fact, the Applicant filed the present // 'H X. application son 23fLNpvember 2021. He contended further, that/therdelaytOzfile the respective application to set aside thejorder of.this Court was not occasioned by the Applicant. In fact^eAnsisted that there was no delay on filing the application as the Applicant acted promptly. The second ground adduced was the illegality in the sense that, as per annexure HAK/7 (a)(b), it is showed that, the summons issued on the 15th day of September 2021by the court and directed to the Applicant's advocate, required the Applicant to appear on 7th October 2021 for mention, Page 5 of 11 and, that, the date of mention was the same date that the matter was dismissed on the ground that the Applicant lost interest to pursue it. In concluding his argument, he referred to the various cases he cited to support his arguments as per the skeleton argument. He stated further that, the main suit and counter claim were consolidated and, that, one could not have proceeded without the other. He however toll^this Court that; the bottom line fact is that the Applicant wasunaware of the dismissal of the counter claim untiQ'6*>November 2021 when the perusal of the file was -made^ He contended further, that, since on that day theApplicant ought to have appeared for a mention,^for\vhick^ez was unaware, this Court should grant thisfapplkzatipn <with costs. (1 v Opposing the; granting of the Application, it was Ms. Prisca Nchimbi'sr ^rayerxto adopt the counter affidavit filed in this Court^tpgethdr^with the skeleton arguments as forming formzpart;of her submission. She went ahead and submitted that, the \ documents she sought to adopt clearly \\ H demonstrate that the Applicant has failed to adduce any reasonable sufficient cause for the Court to grant the extension of time sought. She submitted further that, as shown in the skeleton argument, the Applicant has failed to show that there was no negligence on his party in respect of his absence in Court on the 7th May 2021 when the matter was set for orders. Page 6 of 11 She contended that, the Applicant was fully aware of that date. In her submission, she insisted that, one would have expected the Applicant would have known the scheduling order of the counter claim if he could have perused the Court file earlier to find out when the matter was set for mention. She contended that, while the order was issued on 7th October 2021, it was not until 16th November. 2021 when the Applicant claim to become aware of the.,dismissa border. Responding to the issue of illegality, MsNchimbi stated that, the issue of illegality cannot stand as it is.not explained why the Applicant failed to file the^ZVpplication on time. She was of the view that, thei;e wasxho any/illegality and, even if there was one, thatf'canp^t justify the filing of this U v ■ application. Fina|$ she, prayed for the application to be dismissed with.costsK . // W In a ^briefi- rejoinder, Mr. Mshukuma reiterated his submission in tliief, and also insisted that, he did peruse the /■’’ 'i/' filefon 16th\l^ovember 2021 and not on 30th August 2021. \\ J? Furthermore, he submitted that, there was illegality and in case of the illegality discovered, the court is enjoined to grant the extension of time so as to cure that illegality. I have carefully considered the above rival submissions by both parties, and the key issue which needed to be determined in this ruling, is: whether there are sufficient grounds upon which the court may rely upon to grant Page 7 of 11 the application. It is trite law that, in an application for extension of time, where the applicant has demonstrated good cause, the court is warranted to exercise judicial discretion and grant such application. The requirement to demonstrate sufficient cause, in an application like the one at hand is emphasized in section 14 (1) of the Law of Limitation Act Cap b89 [R.E 2002], which states as follows: X\ "Notwithstanding the provision^ of \\ / this Act, the court may, reasonable or sufficient pause^ \Emphasis supp//e(^^'Zz^-^y\ Z Z\ As regards to whatamounts to^sufficient cause there has been no statutorydefinitibn bj/such term. However, in the case of Tajiga^VCement* Company Limited vs. Jumanne D. Massanga and Amos A. Mwalwanda, Civil Application I\Jo. of_2Q01, (unreported), Nsekela JA (as he then was),, stated that: ^"from decided cases a number of V\ factors have to be taken into " account whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on the part of the applicant. Page 8 of 11 Further, it may be recalled that, Courts in several decisions, have issued guidelines on matters to be considered while exercising Court's discretion in determining any application for extension of time. In the case of Mbogo vs. Shah [1968] EA the defunct Court of Appeal for Eastern Africa highlighted some of factors to be considered, by saying that: "All relevant factors must taken into account in deciding //* how to" exercise the discretibQ"td.\ )/ extend time. Thesex factors include the length^f-thexdelay/’ the reason forthe delay, whether there is an^rg^blecXXn the appeal/' and/tthe^/degree of j^rejucliGe to th^defendant if time _ is'eXten'ded.^ In thepresent application, the Applicant has argued that, the application^based on the counterclaim which was dismissed orb7 > October 2021. Besides, it is the Applicant's subniissions/that, although the counter claim was one with the main suit in a consolidated form, still the two were separate suits to each other. Indeed a counter claim is a separate suit altogether. That fact is well settled. The Applicant has claimed that, following the dismissal of the main suit on 18th October 2018, there was a sequence of various applications, including an appeal which rendered the counter claim to be adjourned generally. Page 9 of 11 It was contended, further, that, there is as well a ground regarding an illegality in the sense that, as per annexure HAK/7 (a)(b), the summons issued by the Court on the 15th day of September 2021 and directed to the Applicant's advocate, required the Applicant to appear on 7th October 2021 for mention, and, that, the same date of mention was the same date that the matter was dismissed on the ground that the Applicant lost interest tppursue it. In the case of Principal Secretary, Ministry of Defence and National Service vs.> Devram Valambhia [1992] TLR 182, the Court of AppeaT held that^when there is an allegation of illegality, it ^/^stF^icignt reason for a Court to grant extension of tinjq^Thisxyvas^also reiterated in the case of Mgombayeka/Investment Co. Ltd and 2Others vs. DCB BankZPL^Qv^Appl. No.500/16 of 2016 (unreported). , : , /z )/ V'Z In m^\yiew,__however, the dismissal of the counter clainrpnTthe 7\ day of October 2021 cannot be regarded as an (illegality\ merely because that day was a day set for mention ^Whether it is for a mention date or hearing date, the Applicant was duty bound to appear in Court either in person or through his advocate who received the summons. Failure to appear in Court without reasonable cause will definitely entitle the Court to dismiss the suit or struck out the pleadings in respect of the party who without sufficient reasons fails to appear in Court on the appointed date. Page 10 of 11 As such, much as an illegality is a ground which would justify granting of an order for extension of time, the ground said to constitute an illegality does not squarely fit in to warrant that this Court uphold it and exercise its discretion. All in all, having gone through the submissions made by the Applicant, I do not find that there have been cogent reasons sufficient to warrant that I grant the orders sought. In the upshot it is my finding, bearing in mincj^here was no sufficient reasons adduced before this Court to warrant it exercise its discretion to grant an extension zo£time, I find that this application should fail. __ \\ \\^ In view of the considerations made herein above this \\ Court settles for the following orders, that: \X B y.is 1. This f! application hereby - /dismissed._ A z<2.Theclismissal is with an Oder as £\ A z /to5 costs' Wto the Respondents. Orderaccordirigly. n A HON. DEO JOHN NANGELA JUDGE, ourt of the United Republic of Tanzania (COMMERCIAL DIVISION) 19/05/2022 Page 11 of 11