LEIGHTON OFFSHORE PTE LTD VS DB SHAPRIYA CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 34 OF 2016 (ARISING FROM MISC. COMM APPLICATION NO 301 of 2015) LEIGHTON OFFSHORE PTE LTD- TANZANIA BRANCH.......................................................... APPLICANT VERSUS DB SHAPRIYA $ CO. LIMITED....................................... RESPONDENT RULING Mansoor, J: Date of RULING- 06th MAY 2016 The Applicant filed an application under Rule 43 (2) of the High Court (Commercial Division) Procedure Rules, 2012, praying for an order to set aside a dismissal order of the Application no. 301 of 2015. The Application reads as follows: a) That this Honourable Court be pleased to set aside a dismissal orders against the Applicant’s application; b) Costs of this application be provided for; c) Any other reliefs) this Court may deem fit and just to grant. Against this present application, the respondent raised three preliminary objections as follows; 1. The application is misconceived and bad at law for wrong and non-citation of enabling provision of the law; 2. The application is not maintainable and bad at law for being overtaken by events; and 2 | !’ a g c 3. The application is misconceived and bad at law for being a review in disguise. Misc. Commercial Application No. 301 of 2015 was for an extension of time to file an application for stay of execution. This application was filed on 23rd November 2015. This was the second application after the first one (Misc. Commercial Application No. 229 of 2015) was dismissed for being incompetent. On 14th December 2015, the Court ordered the hearing of preliminary objections raised by the Respondents in Misc. Commercial application No. 301 of 2015 .to be on 12 February 2015. The Applicant did not file the skeleton written arguments as required by the Commercial Court rules but the respondent did. On the date of the hearing, the applicant or its Counsel never entered appearance, and no reason was shown for their failure to appear, hence the court ordered the hearing of the preliminary objection to be held exparte, and therefore 3 | Pa ge \ the Ruling of striking out of the application was an exparte order. Indeed as argued by the Counsel for the respondent, the counsel for the Applicant is confusing issues as Misc. Civil Application no. 301 was not dismissed for want of appearance but it was dismissed after hearing and determining the preliminary objections raised by the respondent and deciding that the application was incompetent, and so the application was struck out for having been supported by a defective affidavit. For purposes of clarity I shall reproduce the Ruling dated 26th February 2016, it stated: “This is a Ruling arising from an exparte hearing of the preliminary objections taken by the Counsel for the Respondent against the Application for extension of time within which to file an application for stay of execution filed by the Applicant on 23rd November 2015 under the Certificate of Urgency. The preliminary objections were heard exparte since the Applicant and its Counsel failed to enter appearance on the date fixed by the Court for hearing of the preliminary objections and no notice as why they did not appear in Court was received by the Court. ” In fact, the Ruling was of the effect of striking out of the application, the application was not dismissed as stated by the Applicant. It appears the Counsel for the Applicant did not read the Ruling. The last paragraph of the Ruling of Misc. Commercial Application No. 301 of 2015 reads as follows: “Consequently, the affidavit is defective for failure to give the source of information and belief this defect rendered the entire application incompetent. The application is therefore struck out for being supported by a defective affidavit. “ The Applicant has moved the Court to set aside the dismissal order. There was no dismissal order of the Court. The Application was struck out for being incompetent after hearing the objection raised by the respondent in that application. It should be noted that the objections raised in Misc. Application no. 301 of 2015 were heard and determined on merits, and the Court struck out the Application for being supported by a defective affidavit. The Application was never dismissed for nonappearance of the applicant hence neither Rule 43 (2) of the High Court (Commercial Division) Procedure Rules nor Order IX of the Civil Procedure Code applies in this instant application, as these provisions of the law deals with appearance and consequences of nonappearance of parties. It should also be noted that Rule 63 of the High Court (Commercial Division) Procedure Rules, empowers the Judge without hearing the affected party to strike out an affidavit, which in his opinion contravenes any provision of the law currently in force, and make any consequent order, including striking out the application, where the Judge deems fit. In Misc. Commercial Application No. 301 of 2015, there was a preliminary objection against the affidavit in support of the application. The hearing was conducted exparte since the applicant did not file any skeleton written arguments as 6| u' required by Rule 64 of the Rules, and did not enter appearance on the day the hearing of the objections was set for hearing. Applying rule 63, i.e. without hearing the affected party, and after hearing the objections raised, the Court found that the affidavit contravened the provisions of the law, the affidavit was incompetent, and hence the court proceeded to strike out the application. The remedy therefore is not to ask for setting aside the dismissal order as there was no such order made by the Court. The remedy is to file a fresh application. If, in the alternative the applicant is seeking to challenge the decision of the Court to proceed with the hearing of the preliminary objection exparte made on 12th February 2016, the procedure in that case is not to ask the Court to set aside the dismissal order but to make an application for setting aside the exparte order as provided under Rule 43 (2) of the High court Commercial Division Procedure Rules, and under Order IX of the Civil Procedure Code. I do not agree with the arguments of the Counsel for the Applicant that Rule 43 of the High Court Commercial Division Procedure rules gives wide discretionary powers to the Court to reverse a Ruling which ended up striking out the application as that order was made under Rule 63 of the High Court Commercial Division Procedure Rules, after finding out that the affidavit in support of the application was defective. It is true that the proceedings of 12th February 2016 resulting to the striking out order were exparte proceedings, however the Court did not enter an exparte judgement, the court did not pass a dismissal order or any other order in accordance with Order IX of the CPC, the Court passed an order striking out the application after finding out that the affidavit in support of the application was defective, hence that order falls under Rule 63 of the High Court, Commercial Division Procedure Rules, and Rule 43 (2) of the High Court, Commercial Division Procedure Rules is inapplicable in the matter. 8| Therefore the case of Attorney General & another vs Nassoro Athmani Gogo & others Consolidated Appeals No. 105 and 81 of 2006, cited by the Counsel for the Applicant is irrelevant in this matter as that case did not concern the applicability of Rule 63 of the High Court, Commercial division Procedure Rules. . In the upshot and on the basis of the above reasons, the preliminary objection on wrong citation of the relevant provisioh of the law is upheld, and the application is dismissed with costs for being incompetent. I however, agree with the arguments of the Counsel for the applicant that the other two objections raised by the respondent i.e. the objection on the matter being overtaken by events and the matter being a review in disguise are totally irrelevant, and thus the two objections are dismissed. In the result, the application being incompetent, it is hereby dismissed with costs. DATED at DAR ES SALAAM this 6™ day of MAY, 2016 10 | P a g e