mic tanzania ltd vs kijitonyama lutheran church choir 2019 tzca 78 5 march 2019

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM '(COi{:M_M: MUSSA, l.A., MKUY~r J.A.~ AnJt_WA.~~::~~LI( l.AM) CIVIL APPLICATION NO. 109 OF 2015 ,~ , .~.:... . MIC TANZANIA lIMITED ,II ••• , •••••• 11 •• A;PPlICANT VERSUS KIlITONYAMA LUTHERAN CHURCH CHOIR ...••..••..•••..•.•.••.... RESpOr~DENT (Application from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Mansoor, J.) •.. •.. • _... _ .•. . 1.... _ _ •• _ oateo tne lJ~1I aay or April, LUl.!:> in iviisc. Commercial Application iio. 90 of 201~ "===========-= RULING OF THE COURT 28th September 2018 & 18th February, 2019 WAMBAlI, J.A.: The applicant was the defendant in Civil Case No. 30 of 2010 which was lodged by the respondent (plaintiff) at the District Court of IIala in Dar es Salaam Region. The respondent had instituted the suit anq sought declaration tllat_the.a~9Iiem~ h~d. __ ,'"" infringed a copyright of a song called "Hakuna Mungu kama wewe". The applicant thus prayed for the orders of perpetual injunction against the applicant and it? .. ,. ss: servants or agents or any of them or otherwise from infringing upon the respondent, 1 copyright; cld!i18Qf.S. to the tune of One Hundred rVlilHon Sl'rn:liftgs ,(lDO,OOO,OOO/=) and costs of the suit. The applicant lodged the written statement of defence and denied the allegation and claims. The applicant also lodqedthe' notice;'ofpreHminary objection. . i protesting the hearing of the suit on merit. The applicant however, did not appear at the trial court to prosecute the preliminary objections and defend the suit. The District Court of I1ala therefore . ~ dismissedthe preliminary objections and proceeded to hear the suit ex-parte. In the end, an ex-parte judgment was entered in favour of the respondent. The applicant who was earlier at the trial represented by a firm of advocates! MIS· . Kings Law Chambers Advocates instructed MIS Law Associates Advocates to take 90 of 2013 was lodced ~ at the Commerciai Division of the Hiqh - Court of Tanzania that sought extension of time within which to lodge a notice of appeal and the appeai to contest the ex-parte judgment and decree of the trial court. The High Court, Commercial Division heard the parties and delivered its ruling on 17th April, 2015 in which the application was dismissed with costs. section 4(3) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 (the AJA) and Rule 65 of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking to move the ! 'k Court to call for and examine the records of Proceedings, Ruling and Order of the High Court of Tanzania, Commercial Division (!"1ansoor, ].) in Mi$cellaneous 2 Commercial Application No. ~;C uf,7..,:):;.:3 dated 17th April, 2015. The applica:1YC:ol'g:es ' the Court to satisfy itself as to the correctness, legality, propriety or otherwise of the findings, decisions or orders made therein and where appropriate quash and set aside the ruling and older d(;!~cd 17th April, 2015 . . The grounds UPOIl which, the applicant hinges .her dissatisfaction JNittl the decision of the High Court, Commercial Division in this application are that: n(a) Contrary to what was stated in the application and affidavit in support thereof the High Court failed to appreciate the reasons for delay advanced before it which was based on the fact that the applicant'S newly instructed Advocates could not advise the Aoohcen: nn soorooriste .,_.,,_.,' V/-" ""'-"'I remedies cs:::>1/:::>i1a "' .•• , I v cs u hb eaetost .....,,..,,..,' ULv I \",,11 1\ ..A..IIL UH ...,; ~alll L the ex-parte judgment and decree and or do anything including filing the Notice of Appeal before being supplied with at least the copy of the judgment and decree and or perusing the court file; (b) The High Court also failed to find that the reasons and appealing within time were sufficient to warrant condonation of delay; and (c) The High Court also failed to appreciate the established principle of law that illegalities and or; 3 irregularities in tile proL't:i:::Uirry.s'and or judgment and decree sought to be appealed against as demonstrated before it are iii themselves sufficient reasons for extension oYUi77e f~ -.- .... ~~~-., 1-.,"':'~~" ~ ,', ._ ~,' .•....•. , The application is supported by the affidavit of Tumaini Shija the Principal Officer of the applicant and the written submissions lodged by MIS Law Associates Advocates. Upon being served with the application, the respondent through the services of Godwin Muganyizi, learned advocate lodged affidavit in reply opposing the application together with written submissions. The learned advocate also lodged a When the aooiication was caiied on for hearina on 28/9/2018. I • - - ....; - : _. : ~ Mr. Rosam - fVibwambo, learned advocate from iVi/S Law Associates Advocates appeared for the applicant. No appearance was entered by the respondent or his advocate. However, it was brought to the attention of the Court that the respondent was served through the counsel on 28th August, 2018. the respondent under Rule 63(2) of the Rules. We wish also to remark at the outset that although the hearing was ex-parte, the court required the counsel for the applicant to respond to the objection which was raised earlier on by the respondent on 17th June, 2015 on whether the applicant 4 .:::-:=-------'"---- . could hCiv,::: iilb. .; .evision instead of appeal agait ist theC"ciec!s~;jn of the High Court, Commercia! Division. The counsel for the applicant explained briefly the bases on which the application had been brought. He supported his submission on the position . of the lav, set in several decisions of this Court. . In thisreqard, upon consideration ofhts arguments, we were convinced that the application i.5 properly before the Court and we proceeded to hear the arguments on the grounds of revision. It is important to note that the High Court, Commercial Division in its rulIng observed that there were no sufficient reasons which were advanced by the applicant for condonation of delay. The applicant however, complains in the first ground that the learned judge failed to consider what was stated in the application and the affidavit when she reached that decision. The applicant bittery complains that the judge did not appreciate the fact that the newly instructed advocates could not have advised her properly on the way forward without having been supplied with the copies of the proceedings, ex-parte judgment and the decree. This complaint is vivid in the notice of motion, the affidavit in support of the notice of motion sworn by the principal officer of the applicant, Tumaini Shija, the written submission and the oral submission of Mr. Mbwambo, learned advocate when he addressed u5 iil'C)u;-!" z.;,t:~c r;20,-ing of the application. Firstly, on this point we think that the story of Tumaini. Shija, the Principal, Officer of the applicant on when, the applicant got the information of the, date of delivery of judgment by the trial court and when the new advocates, MIS, Law Associates Advocates were instructed to handle the matter is contradictory. In 5 paragraphs 4 and 5 Cf~::;i2 c.~T;dDvit which was before the High' COllrt:Y~idge~:~ rOmaini Shija states that sometimes in September! 2012 the applicant received notice that the judgment was to be dehvered on 6/9/2012 and that it was not delivered on that day, but was dciiverec;3;"; 24/9/2012. Yet the notice of rnotion wh'it:J(was lodged toqether with ,tlJ~,,9ffiq,ayitJn.gicated that the praver for extension of.time.was for the purpose of appealing against the decision which was delivered by the trial District Court of Iiaia on 29th August, 2012. Thus, if we go by paragraph 5 of Tumaini Shija's affidavit that MIS Law Associate Advocates were instructed to take up the matter on appeal after the decision was delivered on 24/9/2012, the'. argument that the new lawyers who took over from M/S Kings Law Chambers Advocates could not have advised the applicant on appropriate remedies against the ex-parte judgment early i,.. '-j\.l I::; r!! !.oc:tinn~hle •••••.•• \.IVII\.ILlI..... The issue I II ••••I n.f t-hQ UL. VI Llle delive 1.:;;11 V•..• I...vYr VI ;1 idcment ",f JUu~ II II\, a IIU ...• ri when II 1.11"::; Inc;:..r., t-ha ,-vv '-'advocates VV---..'L ;:) vvere instructed to take over the matter also appears in paragraphs 7 and 8 of the r, ".appiicant's skeieton argu.wepts before, the I-!:gh Court ',which were lodged by the advocate. It is also important to note that-the issue of the delivery date, (24/9/2012) of the judgment is also reflected in both l~:.tters writen by MIS Law Associates Advocates l? th:::Prfnc1palResident f'Vi_9gistrate Ilala qistrt~tCQurt on 26/9/2012 and 30/7/201.3. :,,' " On the other hand, the affidavit of Tumaini Shija lodged in this Court in support of the application for revision indicates that the ex-parte judgment of the District ,.' . :-, .' Court was delivered on 24/08/2012. Yet the words in brackets which precedes the notice of motion and the affidavit show that.the decision of the District ! Court of Ilala I 6 Wi]S delivered on 29th AUgUSlr 201'l_.;·' 'Yhb matter was aiso countered by paragrdpd" . ( , 5 of the affidavit in reply which was lodged by the respondent's advocate on ., 16/6/2015. Unfortunately, althbT.lg'ft'thevvdtcen submission was lodged 'in this"Codrtby tl'{t§~f"" applicant's counsel.on 2.7f,7/2D.1S. \'Nhich was after the respondent's advocate lodqe.. an affidavit in reply, paragraph 4 of the same still maintains that the ex-parte judgment was delivered on 24/8/2012 and that M/S Law Associates Advocates were immediately instructed and wrote a letter requesting for copies of judgment and decree as well as the proceedings. Indeed, what is apparent, in our view, is that paragraphs 4 and 5 of the affidavits of Tumaini Shija differs from each other in respect of the affidavit which are in respect of the same matter. For purpose of clarity we better reproduce them herein below: AFFIDA VIr BEFORE THE HIGH COURT "4. That the Applicant was initially being represented by M/S King's Law Chambers/ Advocates and thus all services were' b~/fig'inade":h;ough the said lawyers. Sometimes in Septembe0 2012 the _ . applicant received a notice of the date' ofjfjdgment to be delivered on 6/9/2012. When it inquired with ·f .» the Iewyers 1 was informed by Mr. Makene Advocate of Kings Law Chambersthat they are not aWi:!re that 1 healing had proceeded and:'UiB If/CJiter is due for judgment. 5. That on 6/9/2012 the judgment was not delivered. '. It Was deliveh:Jtl on 24/9/2012 it transpired that the same was ex-parte. The applicant -_ '," "~. • .~ •••• • •••;., ••# •••• _~. '" _' ••.. , "". ''''11 ••....• ' ~, ", was aggrieved and thus instructed MIS Law Associates Advocates to take up the matter on appeal. Law Associates Advocates immediately wrote a letter requesting for copies of Proceedings, Judgment and Decree for appeal purposes. A copy of the said letter is attached as Annexture TIGO 1. N AFFIDAVIT BEFORE THE COURT OF APPEAL 114. That the Applicant was initiaJ/y being represented by f'v1/S Kings Law Chambers, Advocates. Sometimes in September, 2012 the Applicant received a notice of the date of ex-parte judgment. 5. That on 24/08/2012 the ex-parte judgment was delivered. The unbeknownst (sic) of what is in the record of proceedings and the ex-parte judgment the Applicant instructed M/S Law Associates Advocates to take up the matter. Law ;?ssqc_ia(e.~,Af{Y9.F?it€~", . . "". immediately wrote a letter to the trial Court requesting for copies of Judgment and Decree as well as the record of proceedings. // 8 A thorou~, I rt=~}ljii 19 of the extracted paragraphs from 'Ti Ie tvvo affidavits of Tumaini Shija reveals the following matters. First there is a deference of what was said in respect of the date of delivery of the ex-parte'jouqrnent: wherethe information was obtatneo-on tile date of delivery , of the" <arne ;::j_nd "vhf) received tile saki intormatlon. , There is also uncertainty on when M/S Law Associates Advocates were instructed to take up the matter (whether after 24/08/2012 or after 24/9/2012). Indeed, it is not known why the deponent's story on the date of delivery of the judgment differed at the High Court and the Court of Appeal. However/ according to paragraph 11 of his affidavit lodged at the High Court, the applicant had been granted opportunity to peruse the record of proceedings and had in possession the copies of the judgment and decree which were attached then and even in the record of revision before this Court. Indeed. a CODV of the iudament shows that the • i I" ..;....; decision of the trial District Court was deiivered on 29th August, 2012. jvioreover/ the applicant sought extension of time at the High Court to file the notice of appeal and appeal against the decision of the trial District Court that was delivered on 29th August, 2012 and not otherwise. Furthermore, there is nowhere in the affidavits of vivid fact that the judgment in consideration was not delivered on 29th August, 2012, " although he reproduced the record 'of v.hat transpired in the trial District Court: . f . (I;, between 6/12/2010 to 14/8/2013. 9 -.'':::':':.''.-- :~~"-E:~.-:-:-'::f.·-_"·__ , _~:~~~_~~?f<~: Two, although Turnair!~:'Sr!!jd- inquired from Mr. Makene advocate ftdh"J"f'X'iyS ' Kjn~ls Law Chambers, Advocates on the date of delivery of the judgment and was informed by him that he: was neither aware of the hearing date nor the date .tif judgment, there is'no arrldavicrrom the said advocate to substantiate the clair'rI~ This would have helped <to,.cau.ge ,.toe, truth of the matter .. and. the. p<z.r.~Q.r,;Lo.f-trGP..sitjon between when MIS Kings Law Chambers, Advocates stopped to be engaged in the matter and when MIS Law Associates Advocates took over the conduct of the case. Unfortunately, it is also not known whether the direction by the applicant to withdraw the instruction from MIS Kings Law Chambers Advocates to MIS Law Associates Advocates was oral or in writing. This fact was not placed before the High Court or in this Court despite the fact that in both the counter affidavit and reply to the affidavit of r"1r. Tumalni Shija by r"1r. Codwin I'Jluganyizi, the learned advocate for the respondent the issue of lack of affidavit of jVir. Makene was raised in oaraoranhs 1 - i -- - .. _.. . - I _ i and 2 of the respondent's written arguments at the High Court and paragraph 7 of the affidavit in reply. In those paragraphs the advocate for the respondent emphasized that no reasons had been stated for the failure of former lawyers of the applicant to appear at the District Court during the proceedings. ,'Iilterestingly, the learnedadvocate f.-,; ~:.;2'·'afJP1'i·cant .states in paragraph "3-uf ,:,0.' .,. .. ,.. the written submission lodged in this Court that. " ... the applicant tried to contact her. lawyerb:;:~;,.jn vain. Having at the time retained M/6-!.:afv Associates Advocates the Applicant instructed the newly retained lawyers to follow up the matter only to find out that the matter had proceeded ex-parte against her and it is due for judqment:" 10 \J,.':t;; I due respect, this statement, we vef';:I)1 t:: b:,~s'Ldte, is contrary to what Tumaini Shija said in the affidavit at the High Court that he. managed to contract Mr. Makene advocate from MIS Kings Law Chambers Advocates who was not aware of what had transpired in the trial court cor.cerninq thC'';'ilearfng and date of judgment. "fhis Is' ...... different from statinq.tnat her lavvypr WAS I !,nsttccessfullycontacted." What ts rnore.. _.',.~ .. '." interesting is that in the affidavit before this Court, Tumaini Shija said nothing about contacting Mr. Makene advocate. Three, going through the letters dated 26th September, 2012 and 30th August, 2013, no one can entertain doubt that in both letters, MIS Law Associates Advocates informed the trial District Court that the applicant intended to apply to set aside the ex-parte judgment. We better reproduce the relevant parts of both letters on this matter. (26th September! 2012. letter) '' .. Being dissatisfied with the judgment our client intends to apply to set aside the ex-parte decision. VVe therefore request a copy of the Judgment, Decree and Court proceedings to be availed to us, in order to assist the preparation of the Application. VOU/s ~- . sincerely; ," '. . ',' ~., ','. : . ...: ".::..~."",' -. ~ '_ , .•... ' ... LAW A,5S0CIATE~ ADVOCATESrr (30th July, 2013 letter) ;. .~.- Ii '-'4,:. 11,3(on the 2rJh day of September, 2012·!ii/t(jA,ij.;Dteto this Honourable Court requesting for a copy of the Judament; Decree and Proceedings. !J~" That we have not been availed witlrthe saine to date, ," . ·9,." liVe humbly request this Honou.rao/e·Courtto.,·-.'.- avail us with a copy of the Judqment; decree and Proceedings to assist us in the preparation for our application to set aside the Ex-parte Judgment. Respectfully, FOR AND ON BEHALF OF LAW ASSOCIATES ADVOCATES, ~~cf ••••••••••••• ADVOCATE cc: OJ)l}osite oertv •• - • - I cc. Client~" It is important to note that unlike the second letter, the first letter was not copied to the applicant and the respondent. However, in view of the clear statement from both letters, it seems the instruction of the applicant to the advocates (MIS Law " <;.- ". -'. ,_';. -":".: i'" ;':', ,';','., ._";~'.'." .••...• " Associates Advocates) was not to appeal but to apply for setting" aslde the ex-parte . • "0;':- •.', .r judgment. «: .,":.•( In this regard, we think that the statement of Tumaini Shija in paragraph 5 of '. -his affidavit ';:hk::h was before the High Court that MIS Law Associates Advocates was directed "to take up the metter on appear cannot be justified. 12 Surprisingly, in his ci'InoaV;t-oefore this Court there is no insrructioffltJta:Fte"tile matter on appeal but simply "to take up the matter" as reflected in paragraph 5. It follows that the contention in· ground (a) in the notice of motion that the .f.1ewly instructed advocates (MIS' taw Associates Advocates) could 'not have itdVised the app!lcanLon .approprtate. remedies available aqalnst the. ex-pane -~udgmeR.t. and decree before being supplied with at least a copy of judgment and decree or perusing the trial court file cannot be substantiated. This is so because both letters were very clear on the course which the advocate intended to' take and thus the crucial issue was to lodge an application before the trial court and explain why the former advocates were prevented from appearing up to the time judgment was delivered ex-parte. Here, we take cognisance of the fact that, be that as it may, the applicant knew that there was an ex-parte judgment before 6 September 2012 as per affidavit of Tumaini Shija. Indeed according to paragraph 3 of the written submission by the j iearned counsei for the appiicant quoted above at page i 4, it shows that when a follow up was done it transpired that the matter had proceeded ex-parte against the applicant and it was due for judgment. It is in this regard that a letter dated 26th September 2012 was written to the trial court by MIS Law Associates Advocates. COl}rt, the applicant knew that the ex-parte judgment was to be delivered ·.on 6/9/2012 although it was not delivered on that datev i ; 13 In the event, taking into consrcerat-on 'uf what we have described and _'''" ' discussed above with regard to ground (a) of complaint, we pause and ask ourselves whether by dismissing the applicatton for extension of time the High Court judg_e - failed to appreciate the reasons for delay which were placed before her by the ,-"" " ., . -appllcant. We think, with.due respBGtr-thatthe answer is emphatically !\!o.,-,.,Jn.,the~ •.. c: •• ,-' crcumstances. we have no hesitation to conclude that this ground has no basis as no sufficient reasons were demonstrated by the applicant. We dismiss it. Furthermore! with regard to ground (b) of complaint, we think, in view of what we have said above, this matter need not detain us any longer. We hasten to add that if the applicant was determined to file the notice of appeal in the High Court, Commercial Division! that eouid have been done within fourteen days (14) as required by Rule 69 (4) of the High Court, Commerciai Ruies, 2012 as observed by the High Court judge in her ruiing. It is piain that apart from the inconsistences and contradictions on the dates of delivery of judgment of the trial court in the affidavit ofTumaini Shija which we have observed above, no one can doubt that the applicant had information concerning the of delivery of judgment before 6/9/2012. That is why h~:.; l1~ilK.itJd; officer (Tumaini Shija) contacted :_; It: rvlii ,t;---lawyer Mr. Makene advocate. The applicant was thus required to.have sought clarification and more information or. tile-<;tatus of the case before the trial court.> ·Ehe could also had immediately followed closely on the matter and lodged the notice of appeal before the expiratlon of 14 days if she so wished. Indeed, as stated by the respondent and 14 the H!gn LUJrt Judge, lodging of the notice at appearwou.o not have required to be accompanied with either a copy of the proceedings or judgment or decree of the trial court, The duty of the applicant was to knO\~L the date of the delivery of the judgnie'ht. The applicant could nottherefore have warted to file the notice of appeal - ,·,!..!ntn .when she was supplied with the relevent-dccernsnts on 27/8/2012 as.alleqed . , -v , in paragraph 15 of Tumaini Shija's affidavit before the High Court. In this regard, we similarly entertain no doubt that this ground has no merit and it is accordingly dismissed. Lastly, in ground (c) of complaint, the applicant blames the High Court judge to have failed to appreciate the established principle of law that illegalities and irregularities is sufficient reason for extension of time. In the circumstances of this matter, We think this argument cannot apply. Vve think we have amply demonstrated above that the first option which was available to the applicant was to appiy to set aside the ex-parte judgment under Order IX Ruie 13 (1) within 21 days since the trial court, proceeded under Order IX Rule 6 (1) of the Civil Procedure Act, Cap. 33 R.E. 2002. Indeed, as we have shown above, through the letters to the trial court the direction and the intention of the applicant was to apply to set aside the ex-parte almost after one year as the letter-dated 30th August 2013 stltl carried the desire of the applicant to apply to the Distritt Court to set aside the ex-parte judqmentr-The applicant was thus supposedto have utilized that option to convince the trial court that there were reasons for non-appearance both before the hearing , of the 15 ._-_. . ~;.:- -~o =- ,,:- . :-~~££~~'=:{_ preliminary objecnons In:;Nnlch the matters of law were painted t~l!l~ af:)!] Juring the hearing of the case. If the applicant could have convinced the trial court, she could have pointed the alleged rileqalities. If the trial court could have ,declined to set aside the ex-parte judgments she would have appealed to the High cuort. Thus, if the ""appe!la:lt ',"Ia:-:!tedto<~ppeal, this would have.been dcneln.nme.... ,,,,,~,. ,., . We are however aware of the argument of the applicant's advocate that the applicant had the option of either appealing or applying to set aside the ex-parte judgment and that both remedies can be exercised concurrently. This matter was delt at length by the High Court judge in her ruling. Nevertheless, in the circumstance of this case, the applicant should have applied to set aside the ex-parte judgment. However, the remedy of setting aside ex-parte judgment could only have This option has not been exhausted since the applicant has not appealed to the High Court. Besides/ the District Court would have been better placed to hear the arguments on non-appearance than the High Court. In the event, this ground is also dismissed. In the final analysis, we':::: t -:''Cl(;CU' It I 'our mind that the appiicant: ias. II' i~ " sufficiently demonstrated that special circumstances exist to enable us to apply the c ' . ,) 'powers of revision under section 4 (3) of the AJA to revise and quash the proceedings, and ruling and set aside the order of the High Court, Commercial-Division dated 17th 16 ---.~.~-:- --~ ---:§.~~:~- .. ::-. April, 2015 that dismissed the ap:pIicahon for extension of time vvithin which taCtile a';i(:,. notice of appeal and an appeal. Vve therefore disrmcs. the application in its entirety. However.-as the-' respondent did not enter appearance when the application was heard, we maRe no .' order as to costs. '. h., .",', DATED at DAR ES SALAAM this 5th day of February, 2019. K. M. MUSSA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K. \fIJAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. )'[;VVtAA/U./( S. J. Kainda ,h DEPUTY REGISTRAR COURT OF APPEAL .' , y; _'-' • 17