INSIGNIA LTD VS CMA CGM MISC

IN THE HIGH COURT OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM Miscellaneous Commercial Application No 31 of 2018 [Arising From Commercial Case No. 36 of 2016]

BETWEEN INSIGNIA LIMITED............................................ APPLICANT Versus CMA CGM (Tanzania) LIMITED........................ RESPONDENT

RULING MRU MA, J This objection will not detain me much. The Applicant is the Plaintiff in Commercial Case No. 36 of 2016 from which this application originates. In that suit the Applicant is suing the Respondent for payment of USD 52,080.00 being the amount paid by the Applicant to a third party allegedly on behalf of the Respondent. The Applicant is also claiming for general damages interests and costs. For reasons not solely attributable to the Applicant, when the matter was called on for Final Pre Trial Conference it was realized that the life span of the case which had been extended had expired. The Applicant took initiative to apply for extension of life span and filed Miscellaneous Commercial Application No 31 of 2018 for that purpose. The Application is preferred under Section 93 of the Civil Procedure Code [Cap 33 R.E. 2002] and Rule 2(2) of the High Court [Commercial Division] Procedure Rules, 2012 Upon being served, counsel for the Respondent together with his counter affidavit to oppose the application, filed a notice of preliminary objection containing three points of preliminary objection namely:- i. The question of extension of time in the above application is solely governed by Rule 32 of the High Court (Commercial Division) Procedure Rules prescribing the track of the case, in consequences whereof, the court lacks power to extend the speed track in the above

application after the expiry of the 12 months calculated from 24th March 2016 the date of filing commercial case No 36 of 2016; ii. Application under Rule 12 aforesaid is required to be oral and not in writing iii. The speed track in the Application above mentioned is not governed by the civil Procedure Act as applied by rules 2(2) and 3 of the Code of the 2012 to Rules. As stated at the outset of this ruling, the impugned application is pegged under the provisions of Section 93 of the Civil Procedure Code and Rule 2 (2) of the High Court (Commercial Division) Procedure Rules, 2012. Admittedly, proceedings in the High Court Commercial Division are governed by the High Court (Commercial Division), Procedure Rules. However, contrary to what was submitted by Mr. Rweyemamu, counsel for Respondent, the Rules are not exhaustive. Rule 2(2) of the Rules gives room for the application of the Civil Procedure Code. The said sub rule provides: "In case of any lacuna in these rules the provisions of the Code shall apply" Invoking the provisions quoted above, the Applicant's counsel resorted to Section 93 of the Code to apply for enlargement of the life span of the case. The said Section reads:- "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though

the period originally fixed or granted may have expired" Unlike Mr. Rweyemamu's observation that there is no lacuna in Rule 32, in my view there is a clear lacuna in Rule 32 of the High Court (Commercial Division), Procedure Rules as that Rule does not cover for a situation where the prescribed life span of 12 months has expired. It is in such a situation that any party may invoke the provision of Section 93 of the Code to apply for extension or enlargement of the life span of the case. This court has on several instances applied technical rules liberally. It has inherent power or jurisdiction to waive strict application of the rules of procedure and ensure that each party is given fair opportunity to state its case and answer the case against it. This is in consonant with the requirement of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania and the famous English decision in the case of Kendal vs. Hamilton (1878) 4 AC 504 at 525 where it was held: 'Procedure is but a machinery of the law after all, the channel and means whereby it is administered and justice reached. It strangely departs from its proper office when instead of facilitating it is permitted to obstruct and even extinguish legal rights and thus made to govern where it ought to sub serve." Allowing the present preliminary objection to stand will amount to permitting procedure to strangle

and obstruct legal rights of the parties. In the circumstances and without much ado, the preliminary objections are dismissed with costs to the applicant. Having considered the nature of the prayers sought in the Chamber summons, the affidavit for and against them, the fact that this is now a backlog case, I will proceed to grant the enlargement sought and order that the life span of the case be and is hereby extended for another 12 months counting from the date this ruling will be delivered to the parties. Judge. Dated 10th September 2018 I Certify that this is a true and correct of the original/order Judgment Rulling Sign:...................................................... Registrar, Commercial Court. DSM.