kilimanjaro truck company limited vs tata holdings tanzania limited another 2022 tzhccomd 43 23 march 2022

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 170 OF 2021 (ORIGINATING FROM COMMERCIAL CASE NO. 76 OF 2015) KILIMANJARO TRUCK COMPANY LIMITED...................................................APPLICANT VERSUS TATA HOLDINGS TANZANIA LIMITED................ 1st RESPONDENT HARVEST TANZANIA LIMITED............................ 2nd RESPONDENT Last Hearing Date: 07/03/2022 Date of Ruling: 23/03/2022 RULING MKEHA, J: In the present application, the applicant is moving the court for an order of extension of time to lodge a notice of appeal to the Court of Appeal of Tanzania against the whole of the judgment and decree of the High Court, i Commercial Division at Dar es Salaam, delivered on 7th June 2018 in Commercial Case No. 76 of 2015. The applicant's first attempt to appeal was unsuccessful, when her appeal was struck out for having been instituted beyond the time prescribed under rule 90 of the Court of Appeal Rules. The application is made under section 11 (1) of the Appellate Jurisdiction Act and section 14 (1) of the Law of Limitation Act. The same is supported with affidavits of Mr. Rowland Sawaya, the Managing Director of the applicant and that of Mr. Michael Ngaro, the applicant's advocate. On the other hand, the application is resisted through counter affidavits of Mr. Lusiu Peter, the respondents' advocate and that of Mr. First Kalugaba, the Finance Manager of the 1st respondent. According to Mr. Michael Ngaro learned advocate for the applicant, reasons in support of the application are contained in paragraphs 14, 15, 17, 18, 19 and 20 of Mr. Sawaya's affidavit. Specifically, the affidavit indicates that, the judgment of the High Court is problematic for emanating from and or being based on material procedural irregularities and illegalities including among others, non-attendance of witnesses for the parties and irregular adoption of witness statements and documents attached thereto as 2 exhibits (Paragraph 17 of the affidavit). In terms of Paragraph 18 of the affidavit, the procedural irregularities and illegalities pointed out under Paragraph 17 constitute good cause and sufficient reasons for extension of time. Mr. Lusiu Peter submitted in reply that, the reasons advanced by the applicant are not sufficient to warrant grant of the application. He made reference to Paragraph 12 of his own counter affidavit in which the contents of Paragraphs 15, 16 and 17 of the applicant's affidavit were vehemently denied. According to the respondents, the applicant did not adduce sufficient reasons warranting extension of time. In view of the respondents, the applicant preferred the present application on collapse of her appeal which was incompetent due to mistakes, negligence and inaction on part of the applicant and her counsel. The only issue for determination is whether there are sufficient reasons for grant of the application for extension of time. Amongst others, the applicant put forward some procedural irregularities and illegalities as reasons for the delay. It was specifically stated in Paragraph 17 of the applicant's affidavit that, there were some fatal irregularities and illegalities apparent on the face of the judgment regarding non-attendance 3 of witnesses for the parties and irregular adoption of not only witness statements, but also, documents attached thereto as exhibits. In the respondents' counter affidavits, there was no specific denial of the fact that, the impugned judgment suffers from a number of infirmities including illegalities pointed out in Paragraph 17 of the applicant's affidavit referred to hereinabove. Under Paragraph 12 of Mr. Lusiu's counter affidavit, a general denial was made, that, there were no good reasons for the delay and further that, the application was filed following striking out of the applicant's former appeal for reasons of incompetence. Again, Paragraph 14 of Mr. Kalugaba's affidavit, did nothing more than generally denying the contents of Paragraph 17 of the applicant's affidavit. It was simply stated under the said part of the counter affidavit that, the judgment in Commercial Case No. 76 of 2015 was correct and proper, having no procedural irregularities and illegalities. Neither of the deponents of the counter affidavits dared to specifically dispute, presence of the specific procedural irregularities and illegalities pointed out by the applicant. It is a settled position of law that, each factual averment made in the affidavit accompanying the chamber application has to be specifically 4 denied by the replying party/respondent. In the absence of specific denial, such averment is deemed to have been admitted by the replying party/respondent. In the present application, the respondents did not specifically deny the fact that the impugned judgment is tainted with illegalities. According to the decision in PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE vs. DEVRAM VALAMBIA (1992) TLR 185, illegality of the decision sought to be challenged constitutes sufficient reason for extension of time regardless the extent of delay. It is for the foregoing reasons I hold the application to be meritorious. The application is granted. Thirty (30) days' time is given for the applicant to achieve the said purpose. No order is given as to costs. DATED at DAR ES SALAAM this 23rd day of MARCH 2022. C. P. MKEHA JUDGE 23/03/2022 5 Court: Ruling is delivered in the presence of the parties' advocates. C. P. JUDGE 23/03/2022 6