Misc

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 25619 OF 2024 (Arising from Commercial Case No. 98 of 2023) INK WORLD LIMITED…………………..………..…………………1ST APPLICANT VENKADESH KUMAR PADMANABAN…………………….………2ND APPLICANT VERSUS ZUNA PRINTING SOLUTION LIMITED……………..……………RESPONDENT RULING Date of last order: 04/12/2024 Date of Ruling: 7/03/2025 GONZI, J. Under Section 68 (e) and 95 of the Civil Procedure Code, CAP 33 (R.E 2019) of the Laws of Tanzania and Section 14 of the Law of Limitation Act, CAP 89 of the Laws of Tanzania (R.E 2019), the Applicant prayed for orders that: (a) That, the honourable Court be pleased to grant extension of time to file an application to set aside 1 exparte judgment and orders in Civil case no. 98 of 2023 (b) Cost for this application be provided for (c) Any other orders that this Honourable Court may deem fit to grant. The Application was supported by affidavits of Ally Karim Ladha (on behalf of the 1st Applicant) as a director of the company and Mr. Venkadesh Kumar Padmanaban, the 2nd Applicant. It was opposed by Counter Affidavit of Sadick Siu, for the Respondent. In their Affidavit the Applicants adduced that the delay to make the Application to set aside the exparte Judgment passed against them was not deliberate as the applicants never rested from time to time in following up to be supplied with copies of the exparte Judgment. Hence, they stated that they have throughout been C corridors and the delay is therefore a technical delay. This assertion was contested by the Respondent who asserted that the alleged technical delay ended on 7th October 2024 when eventually the Applicants were supplied with copies of the exparte Judgment but they filed the present application on 18th October 2024 hence a further unaccounted for delay of 11 days. 2 The hearing of the Application proceeded by way of written submissions. The Applicants enjoyed the service of Mr. Frank Ntabaye, Learned Advocate, whilst the Respondent was represented by Dr.Aloys Rugazia, Learned Advocate. I thank both Learned Counsel. In the submissions in chief for the Applicants, Mr.Ntabaye, Learned Advocate, submitted that the prayer for extension of time is of greater essence due to the fact that the primary prayers sought were clearly out of time. He referred the Court to Rule 43(2) of the High Court (Commercial Division) Procedure Rules, 2012 which requires that where an exparte judgment or dismissal order has been entered by the Court, the aggrieved party should apply to set aside the exparte order within 14 days. Submitting further, Mr. Ntabaye argued that the exparte judgment intended to be challenged was entered on 5th July, 2024. He argued that 14 days after the date of the Judgment expired on 19th July 2024. He submitted that after delivery of the exparte judgment, the applicants immediately applied for copies of the exparte judgment and decree from the Court on the 7th day of July, 2024. However, the same was supplied to the Applicants on 7th day of October, 2024. 3 Mr. Ntabaye, submitted that applicants were delayed through Court process also known as technical delay as the delay is largely prompted by the time spent in Court corridors. He relied on the case of William Shija vs Fortunatus Masha (1997) TLR 213 CA, 219. Mr. Ntabaye further submitted that they are aware of the principles set out in the case of Lyamuya Construction Company Limited v. Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010, where the factors for consideration in an application for extension of time were considered. He submitted that the legal requirements thereof have been met in this application in that, firstly, they have accounted for each day of delay and have given the reasons for the delay. Secondly, that the delay is not inordinate meaning it does not exceed reasonable limits and not unusual. Thirdly, that they had shown all due diligence and their desire to set aside the exparte order in time by filing various requests for copies of the exparte Judgment and Ruling just two days after the exparte judgment was pronounced. Mr.Ntabaye, Learned Advocate prayed for the application to be granted. On the other side, Mr. Rugazia, Learned Advocate, submitted that it is trite law that an applicant seeking an extension of time must account for 4 each day of the delay to justify their prayer for extension of time. However, he argued, the Applicants failed to account for the days after they had received the copies of the Judgement and decree on the 7/10/2024 until the filing of the Application herein that is the 18/10/2024. He made reference to the case of Vedastus Raphael vs. Mwanza City Council and 2 Others, Civil Application 594/08 of 2021. Mr. Rugazia, Learned Advocate, argued that the Applicants, in their submission, have failed to address the specific period of delay comprehensively. While they provided a general chronology of events, they omitted a detailed and satisfactory explanation for the prolonged delay from 7/7/2024 to 18th October 2024, when the application before this Court was made. He argued that the failure to account for each day of the delay is fatal to the Applicants' case. He cited the case of Hamis Babu Bally vs. The Judicial Officers Ethics Committee and 3 Others, Civil Application 130/01 of 2020, pg. 14-15. Further submitting, Mr. Rugazia argued that the Applicants have relied on statements that amount to hearsay as stated at page 2 in the paragraph 3 of their submission in chief naming one Fatuma and in Paragraphs 5, 6 and 7 of the applicants’ joint affidavit. He insisted that it is unsafe to rely on 5 facts not corroborated in absence of the named third party’s affidavit. He relied upon the case of Republic s. Paschal Hilku Kinyooe and Another, Criminal Sessions Case No. 50/2020, High Court of Tanzania at Arusha, at page 12. He submitted that the Applicants' current application for an extension of time is misconceived and premature as the Applicants should have firstly pursued the appropriate procedural remedies before seeking the reliefs sought in this application. I his view, the Applicants ought to have filed an application for the restoration of their witness statements that were allegedly affected by their failure to comply with the procedural deadlines and seek a certificate of delay if there was a technical or procedural impediment that prevented them from complying with the Court-ordered timelines. He prayed for the Application to be dismissed for lack of merit. There was no any rejoinder. Hence, that marked the end of the submissions by the Learned Counsel. I am now set to determine the application at hand. Granting of extension of time is entirely the discretion of the Court. The Court upon sufficient cause for the delay or for extension of time being shown, may grant the application for extension of time. What amounts to 6 sufficient cause was reiterated in the case of Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Women’s Christian Association, Civil Application No. 2 of 2010 (unreported), where at pages 6 and 7, the Court of Appeal highlighted the following conditions for granting of applications for extension of time. These are: 1. The Applicant must account for all the period of delay. 2. The delay should not be inordinate. 3. The Applicant must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. 4. If the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance as the illegality of the decision sought to be challenged. In the instant application, the reasons for the delay in lodging the intended application to set aside the exparte Judgment, as per the applicants’ affidavit, are outlined in paragraphs 10-12 thereof thus: 7 “10. That, the matter was heard exparte and entered in favor of the respondent on the 5th day of July, 2024, before advocates of both parties. 11. That, after the judgment, we had requested for copies of Judgment and decree from the Court in various earlier on 07th day of July, 2024, but the copies were not ready. We later on requested copies on 30th day of July and 13th day of July, 2024 all to which we were told of the absence of the judge and the copies of judgment and decree not to be ready. It was not until the 7th day of October, 2024 after various calls and probes from the Court registry when we were served the copies of Judgment and decree through whatsapp from registry officer named Fatuma. (a copy of the request for Judgment and decree on various dates is herein attached and marked as 8 annexure VV-5. Leave of the Court is craved to form part of this affidavit) 12. That, upon realizing such a default in lapse of time, we now make this application for the extension of time within which to file application to set aside exparte order and there by accord with the applicants the right to be heard on merit and meet the ends of justice due to the nature of claims and circumstance of the case” Rule 43 (2) of the High Court (Commercial Division) Procedure Rules, 2012, as amended, states that: “Where the Court has entered an exparte Judgment or passed a dismissal order or any other order in accordance with order IX of the Code, it shall be lawful of the Court, upon application being made by an aggrieved party within fourteen days from the date of the Judgment or the order, to set aside or vary such Judgment or order upon such terms as may be considered by the Court to be just.” 9 In this case, it is undisputed that the Judgment was delivered on 5th July 2024. The 14 days lapsed on 19th July 2024. The Applicants alleged to have been supplied with the copies of the exparte judgment on 7th October 2024 thus the delay was a technical one and contributed by the Court. I am guided by the principle that “A litigant should not be allowed to suffer through the mistake of an officer of Court connected with the administration of justice.” That principle was restated in the case of VIP Engineering & Marketing vs Société General De Surveillance (SA) and another, Commercial Case No.16 of 2000 (unreported). Also, it was reiterated and emphasized in the case of MOUNT MERU FLOWERS TANZANIA LIMITED VS BOX BOARD TANZANIA LTD; CIVIL APPEAL NO.260/2018 CAT AT ARUSHA (unreported), where the Court held that: "Parties should not be punished for errors committed by the Court and cases need to come to an end if the Court sees that no substantive justice was breached". In the present application, it transpires that the Applicants had timely applied to be supplied with certified copies of the exparte Judgment. The Respondent does not dispute this fact. Therefore, all the waiting period for 10 the same to be supplied by the Court is therefore excluded up to the date that the Applicants were supplied with the same on 7th October 2024. The only assertion by the Respondent was that although the copy of the exparte judgment was supplied to the Applicants on 7/10/2024, the filing was effected on 18/10/2024. The Respondent, therefore, argued that the Applicants were negligent and have not accounted for the delay from 7th October 2024 to 18th October 2024 when they could have filed the present application instantly upon being supplied with the certified copies of the exparte judgment on 7th October 2024. I have gone through the electronic case file in the electronic case management system. The application at hand was submitted in Court on 11th October 2024. The control number was extracted on 11th October 2024 and according to the system it was filed on 13th October 2024. From the date that the certified copies of the exparte Judgment were supplied, that is, 7th October 2024, to 11th October 2024, the date when the application was submitted in Court, 3 days had elapsed. I have asked myself whether a delay of three days is inordinate in the circumstances of this case where the Applicants upon receiving the certified copies had to engage 11 Advocates to draft and file the present Application in Court. In my view, the delay of three days is excusable. Therefore, the application for extension of time is granted. The Applicant is given 7 days from the date of this Ruling to file an application seeking setting aside the Exparte Judgment. Each party shall bear its own costs. A. H. GONZI JUDGE 07/03/2025 Ruling is delivered in Court this 7th day of March, 2025 in the presence of Mr. Elisante Frank Jumbe, Advocate for the Applicants and Dr. Aloys Rugazia, Advocate for the Respondent. A. H. GONZI JUDGE 07/03/2025 12