jmd travel services vs tsn oil t ltd 2022 tzhccomd 22 28 february 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC. COMMERCIAL APPL. NO. 159 OF 2021 (Arising from commercial Case No 67 of 2021) JMD TRAVEL SERVCES........................................ APPLICANT VERSUS TSN OIL (T) LIMITED .^-RESPONDENT Last order: 17th December 2021 Ruling: 28th February 2022 NANGELA, J: This rulina^arises from an application which was preferred byjzhe Ap^ffi/jMD TRAVEL SERVICES on 27th October ZO^l.^The^application was by way of a chamber sunTOonsxfile^under Rule 31(2) of the High Court (Commercial Division) Procedure Rules, GN No.250 of 2012 (as^'amencied by GN.No.107 of 2019). The application is supported by Affidavits of Bakari Juma as well as Hakme Abdulrahiman Pemba, advocates for the Applicant. The Applicant is seeking for the following orders of this Court: 1. That, this honourable Court be pleased to set aside its dismissal order in respect of Commercial Page 1 of 6 case No. 67 of 2021 between JMD Travel Services vs TSN Oil (T) Limited, which was made by His Lordship. Dr. DJ. Nangela on 22nd October 2021. 2. After setting aside the said orders, this Court be pleased to make an Order that, Commercial Case No.67 of 2021 between the afore said parties be restored and proceed with the First-Pre-trial; Conference. 3. Any other order this Honourable Court may deem^just, fit and equitable to'graht. Upon service of ffie: appBcatjon, the Respondent herein filed a counter affidavit^^contest the granting of the prayers sought l^te\pplicant. When the parties appeared before me^^^he_23rd^November 2021, Mr Bakari Juma, learned^advqc^^^represented the Applicant while Mr Raphael Rwezahura, learned advocate, represented the Respondent. On the material date, since all pleadings were complete, it was agreed that the matter shall proceed by way of written submissions. A schedule of filing was issued and the parties have duly complied with it. In his submissions in support of the application, Mr Bakari submitted that, this instant application emanates from Page 2 of 6 Commercial Case No.67 of 2021, which was scheduled for its first pre-trial conference (FPTC) on the 22nd day of October 2021, but got dismissed by this Court for want of prosecution. Mr Bakari submitted that, after the dismissal of the case, the Applicant has promptly filed this application seeking to restore the dismissed suit to its hearing track. Relying on the affidavits in support of the application, Mr Bakari submitted that, when Commercial/Case N6.67 \\ Z of 2021, was called on for its FPTC, he failed^tozenter appearance in Court because on that matenal'day, he had mistakenly indicated in his Diary that, the suifewas scheduled for FPTC at 2.00pm of the same^ate-wnile in fact it was 9-am- a\/ He submitted that, orvt^e piaterial date, he was away to Arusha to attend ar^other^matter and, his colleague, Ms Pemba was the one. who appeared in Court on the 22n^ October 2021 at 2.QPzpm only to learn that the case was dismissed^jf9^Qp,am for want of prosecution. n He urged this Court, to grant the application and rest'ore-the suit since the incident of mistaken recording of the time was a human error. He sought support from the case of Zuberi Mussa vs. Shinyanga Town Council, Civil Appl. No.3 of 2007, CAT (Tabora) (Unreported). He also relied on the case of Ghania J. Kimambi vs. Shedrack Reuben N'gambi, Misc. Appl. No.692 of 2018, HC (unreported), where this Court (Muruke, J) was of the view Page 3 of 6 that mistakes of an advocate should not be imputed on the clients. He also sought refuge on section 3A of the Civil Procedure Code, Cap.33 R.E 2021. In opposing the application, Mr Rwezahura submitted that, Rule 31 (2) of the High Court (Commercial Division) AhS^Rules, Procedure carefully GN considered No.250 ofthe rival(as 2012 amended and submissions by . A\. JJ ' GN.No.107 of 2019) gives this Court a discretion to set aside takenjnto’account the affidavits in support and in opposition orders its the to on such granting of theterms prayers it thinks as sought the HeSsubmitted, by fit. Applicant. The Z however, that, before the Court does sp,^there n)ust be issue I am about to resolve here is whether the applicant sufficient reasons. has disclosed sufficient reasons to convince this Court to this Rwezahura grant Mr application. relied on the'cas^of^fusufu Same and Hawa In his Dada vs. Hadija*Ydsuf,~[1996] submissions TLR 347 and Mr Bakari has demonstrated the that of Frank Kibanga tfsS^ACU^Llmlted, Civil Appeal reasons why he failed to appear in Court at the appointed No.24 of 2003 (Unrep6rted-)f In^Kibanga's case (supra), the Court was of the view that; carelessness or inadvertence on the part of th^Jitigant or their counsel cannot be accepted^a/a^^ting sufficient cause. He urged me to dismissThe application with costs. Page 4 of 6 time. He has relied on the cases of Zuberi Mussa vs. Shinyanga Town Council, Civil Appl. No.3 of 2007, CAT (Tabora) (Unreported) and Ghania J. Kimambi vs. Shedrack Reuben N'gambi, Mi sc. Appl. No.692 of 2018, HC (unreported). In the Zuberi's case (supra) the Court of Appeal was of the view that: "Advocates are human and theyX are bound to make mistakes sometime in the course of tfieif-> duties. Whether suchunistakes amount to lack of diligence is^a question of .fact to. be decided AX V against the Xbackgrpund and ci rcu instance's oreach case...." ff Indeed, as I Jook at hiyaffidavit, it attachments, and the affidavit filed^^MsLPemba, there is no doubt that, the absence of<t1^advorate in Court was cause by his own error AX, in recordingThe time when the suit was to be called on for its ,FPTC. Mi have also noted that, the Advocate's absence wasxQnly^oh that material date and not repetitive. In the circumstance, I think that his erroneous recording of the time when the case was to be called on for • the FPTC and his subsequent absence at the material time, cannot be equated to an act of being negligent. I rather consider it to be an oversight which can be condoned since it was a human error. Page 5 of 6 In view of the above, I find that, this is a fit case where this Court should exercise it discretion. In the circumstance, therefore, I find that there is a need, in the interest of justice that this Court should grant the application. In view of that, this Court settles for the following orders: 1. That, the Applicant's prayer to have Commercial Case No.67 of 2021, restored to its hearing track is hereby granted. 2. The Dismissal Order of this Court date 22nd October 2021 is hereby set aside. 3. In the circumstance of this matter, each party shall bear its own costs. 4. FPTC in respect of Commercial Case No.67 of 2021 shall proceed on 3rd March 2022 at 8:30 am. It is so ordered DATED AT DAR-ES-SALAAM ON THIS 28th DAY OF FEBRUARY 2022 Page 6 of 6