MIC T LTD VS KIJITONYAMA CHURCH CHOIR MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 90 OF 2013 MIC TANZANIA LIMITED................................ APPLICANT VERSUS KIJITONYAMA LUTHERAN CHURCH CHOIR...................................................... RESPONDENT RULING Mansoor, J: Date of HEARING- 13/04/2015 Date of Ruling- 17/04/2015 The District Court for Ilala District entered an exparte judgement against the Applicant herein since 29th August 2012 in Civil Case No. 30 of 2010. At the District Court, the Applicant herein was represented by a law Firm known as M/S Kings Law Chambers, they entered appearance and filed the written statement of defence, however, since the Applicant did not enter appearance on the day fixed for hearing for defending the case, an exparte judgement was entered against it. The Applicant contends that it wasn’t aware of the exparte judgement, until it was served with the garnishee order during the execution of the said exparte decree on 26 August 2013, thus they instructed a new Law Firm, i.e. Law Associates Advocates to pursue an appeal, and that by the time they discovered that there was an exparte judgement passed against them, the time for filing the Notice of Appeal as required by Rule 69 (4), of the High Court, Commercial Rules had already passed, and this prompted them to file an Application under Section 14 (1) of the Law of Limitation Act, Cap 89 R:E 2002 for extension of time to file the notice of Appeal, and an Appeal against the decision of the District Court. The Applicants contends that they had asked for copies of the Judgement, Decree and Proceedings from the District Court, and they were supplied with the same on 26th August 2013, and they filed this Application before this Court on 28th August 2013. The Counsel for the Applicant contends that it is the District Court that had delayed them from supplying with 2 the necessary documents to enable them file the Notice of Appeal on time as required by Rule 69 (4) of the High Court Commercial Rules, hence this constitutes sufficient reasons warranting this Court to grant the applicant an extension of time to file Notice of Appeal, and an Appeal out of time. The Counsel for the Applicant also cited the case of the Principal Secretary, Ministry of Defence and National Service vs. Duram P Valambhia, CA (1992JTLR pg. 387 at page 389, in which Justices of Court of Appeal had stated that, “where the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is a point o f law o f sufficient importance to constitute a sufficient reason within Rule 8 o f the Court o f Appeal Rules to overlook noncompliance with the requirements of the Rules and to enlarge the time for such compliance. ” Regarding this decision, this Court is being given the discretion to decide on whether or not there is sufficient cause for condonation of the delay based on the circumstances of the 3 case, and on deciding that this court is not supposed to consider the merits of the appeal. Whether or not there is an illegality in the judgement, that is a subject of an appeal, and this Court is not empowered to determine the merits of the appeal as yet, and the point of law at issue as at this stage is not the illegality of the decision that is being challenged. In response, the Counsel for the Respondent submitted that the Commercial Rules doesn’t require the Applicant to file the Notice of Appeal with copies of Proceedings, Judgement, Decree and Orders, thus the Applicant could have simply puresed the District Court file to see what transpired, and file the Notice of Appeal in time. Secondly, the Counsel argued that the Counsel for the Applicant had admitted negligence, thus negligence cannot constitute sufficient reasons to grant an extension of time. The Counsel also submitted that the Applicant ought to have applied before the District Court for setting aside the exparte judgement before resorting to an appeal. On the point on whether or not the Applicant ought to have exhausted the remedies available under the Civil Procedure Code and file an application for setting aside the exparte judgment instead of an appeal, I shall refer to the case of THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR, CIVIL APPEAL NO. 54 OF 1997 BETWEEN JAFFARI SANYA JUSSA and ISMAIL SANYA JUSSA vs. SALEH SADIQ OSMAN In this case the Court of Appeal determined the question of what is the position of setting aside ex parte proceedings. The Court of Appeal had said that there is concurrent jurisdiction between the Court of Appeal and the High Courts (both of Tanzania and of Zanzibar). The Justices considered OXI R 14 of the Zanzibar Decree, which state: O XI R. 14 provides as follow: In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; The Justices said and I quote: “This rule of setting aside an ex parte decree will only benefit a defendant. But there are two more possible scenarios in an ex parte decree: One, a defendant might not want to set aside an ex parte decree but might wish to contest the findings or the award. Two, a plaintiff notwithstanding that the decree is in his favor, might nevertheless wish to challenge the finding or the award.” They said, in such a case the remedy would appear to be to appeal under section 5(1) (a) of the Appellate Jurisdiction Act, 1979, which provides as follows: 5.-(l) in civil proceedings, except where any other Law for the time being in force provides otherwise, an Appeal shall lie to the Court of Appeal- 6 (a) Against every decree, including an ex parte or Preliminary decree made by the High Court in a Suit under the Civil Procedure Code, 1966, in The exercise of its original jurisdiction; They said further that: “It is abundantly clear to us that concurrent jurisdiction exists only with respect to setting aside an ex parte decree. Now, could a defendant pursue both avenues at the same time? We think not and we have three reasons for thinking so. First, O XI R. 14 is the only provision specifically and singularly for setting aside an ex parte decree. We have already said that section 5(1) (a) of the Appellate Jurisdiction Act covers more situations than setting aside an ex parte decree. In that case it is our considered opinion that that provision should be invoked first and foremost. 7 Second, O XI R. 14 operates in the High Court (and subordinate courts) because the CPD does not apply to this Court (see section 1 (2) of the CPD). It is our settled view that one should only come to this Court as a last resort after exhausting all available remedies in the High Court. Finally, it appears to us that, in the case of concurrent jurisdiction under the Appellate Jurisdiction Act, 1979, the sequence of actions is to start in the High Court and subsequently to this Court. This is definitely so in the case of applications under Rule 44: Whenever an application may be made either to the Court or to the High Court, it shall in the first instance Be made to the High Court... We think that that sequence is orderly, logical and avoids confusion and the duplication of litigation, as was the case here. Therefore, the applicants ought to have applied for setting aside the ex parte decree in the High Court and should 8 not have simultaneously filed an appeal in this Court. That move was undoubtedly irregular.” In this present appeal, the decision intended to be appealed against, is an exparte judgment entered against the applicant under Order VIII rule 14(1) of the Civil Procedure code 1966. Under Order IX Rule 13, a defendant "may apply to the court by which the Decree was passed for an order to set it aside, if he satisfies the court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing..." The Applicant contends that they became aware of the exparte Judgment on 29 August 2013 and this was the earliest point in time the applicant became aware of the exparte judgment, or execution of the exparte decree; the applicant did not also apply before the trial court to have the exparte judgment set aside. 9 I agree that the word used in Order IX Rule 13 is “may”. Order 9, rule 13 makes provision for the setting aside of an ex-parte decree against the defendant. It lays down the conditions and also the procedure for the setting aside of an ex-parte decree. A plain reading of this order and especially the word “may” clearly indicates that the Applicant can prefer an appeal against an ex-parte decree, and if the Applicant has preferred an appeal, no application for setting aside the ex-parte decree under order 9, rule 13 of the Code will be entertained. The language used in Order 9 Rule 13 of the CPC and also Section 70 of the Civil Procedure Code clearly suggests that an aggrieved person may either file an appeal against a decree passed ex-parte or make an application under order 9, rule 13 of the Civil Procedure Code for setting aside the exparte decree, and this is what the Justices of the Court of Appeal in the above mentioned case have decided. They however, said that the aggrieved person cannot use both the remedies, he has to choose one, and thus this application is maintainable under the law. 10 Coming to the point on sufficient cause for condonation of delay, I shall hold that sufficient cause has not been made out by the Applicant for condonation of delay in filing the Notice of Appeal. The Applicant admitted that it entered appearance before the District Court and filed its defence but said that it is their previous advocate who failed to enter appearance on the date the case was fixed for hearing. The Applicant never showed the Court as to whether they were diligent enough to make follow up to see as to what is happening with their case or why the previous Advocate did not enter appearance when the matter was fixed for hearing. The Judgement at the District court was pronounced on 29th August 2012, the Applicant did not bother to check with their previous advocates or with the Court as to what transpires in court, they did not show interest in pursuing their defence hence they only became aware of the existence of the exparte judgement on the date they were served with the garnishee order, this Court cannot condone lack of diligence or negligence in the conduct of cases, and negligence cannot 11 constitute sufficient cause for condonation of delay in filing Notice of Appeal. Again, as submitted by the Counsel for the Respondent the Applicant ought to have filed the Notice of Appeal within 14 days from the date the judgement was pronounced as required by Rule 69 (4) of the High Court Commercial Rules and that Form No 5 of the Commercial Court Rules (which is the Notice of Appeal) prescribed under Rule 69 (2)of the High Court Commercial Rules does not require for it to be accompanied by a copy of decree, judgement or proceedings, it can be filed on its own. The Applicant could simply peruse the records of the District Court’s file to find out whether or not they needed to appeal against the whole decision or only part of it, and that under Rule 69 (5), it is the Court’s duty to supply the Applicant with the certified copies of the proceedings, judgement and decree, after the notice of Appeal has been duly lodged as per Rule 69 (4) of the Rules, and after payment of the prescribed fees. For clarity, this Rules reads: Rule 69 (5) “the Court Appealed from shall, upon receipt of the notice of appeal and upon payments of the prescribed fee, supply to the appellant a certified copy of the proceedings, and a copy of judgement and decree. The Appellant did not need copies of proceedings judgement or decree to file the Notice of Appeal on time., and the Applicant showed lack of diligence in making follow of its own case, thus in the conclusion no sufficient cause had been made out for condonation of delay in presenting the Notice of Appeal under Rule 69(4) of the Commercial Rules. Thus, based on the above reasons, this application is dismissed with costs. 13 Application dismissed with costs. Dated at Dar es Salaam this 17th day of April 2015 14