NASRA SAID VS KCB BANK T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 40 OF 2015 (Arising from Commercial Case No. 130 of 2013) NASRA SA ID ...................................................................APPLICANT VERSUS KCB BANK TANZANIA LIMITED...................................... RESPONDENT 1st & 29th October, 2015 RULING MWAMBEGELE, J.: The applicant Nasra Said, through the services of Mr. Russumo, learned advocate, filed an application in this court praying for inter alia, extension of time to file an application to set aside an exparte judgment and decree delivered by this court on 16.04.2014. The application has been supported by an affidavit sworn by the applicant. The application was heard before me on 01.09.2015 during which Mr. Russumo learned advocate appeared for the applicant and Mr. Elisa Abel Msuya, learned advocate appeared for the respondent. Prior to the oral hearing, Mr. Russumo had filed skeleton written arguments as required by rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN 1 No. 250 of 2012 (henceforth "the Rules"). Mr. Msuya did not. However, despite Mr. Msuya not filing his skeleton written arguments, hearing of thee application proceeded in terms of the proviso to rule 64 of the Rules. Mr. Russumo, learned advocate, stated in the affidavit and at the hearing that the applicant was all along not aware of the proceedings against her; she became aware of the judgment and decree against her when she was served with a letter by Tambaza Auction Mart. He stated that the respondent ought not to have resorted to service by publication as it was aware of her whereabouts. The applicant, through Mr. Russumo, states that she was a ten cell leader and thus her residence was known. Having realized that there was a decree against her, she assigned a lawyer to address the matter but that that lawyer mishandled the matter by not filing an appropriate application, hence the delay. Mr. Msuya, learned counsel for the respondent vehemently attacked the applicant's application stating after adopting the contents of the counter affidavit that substituted service is proper service at law and a default judgment was entered against her after such publication. Mr. Msuya, learned counsel for the respondent, stated that in order for an applicant to succeed in an application of this nature, sufficient reasons for delay must be shown. To buttress this point, he cited and supplied the Registered Trustees o f the Archdiocese o f o f Dar es Salaam Vs the Chairman Bunju Village Government, Civil Appeal No. 147 of 2006; an unreported decision of the Court of Appeal and Isabella John Vs Silvester Magembe Cheyo 2 ors, Commercial Case No. 49 of 2003; an unreported decision of this court. 2 Mr. Msuya submitted further that at page 1 of the skeleton written arguments, the applicant has stated the misconduct by the respondent which borders fraud. In the circumstances, he submitted, proof becomes higher than the normal standard in a civil suit. He cited and supplied CF Union Bank Ltd Vs Ainullah Haiderally t/a Al- Minar Pyaraii Laiji Dhirani & 2 ors, Commercial Case No. 6 of 2001 (unreported), to bolster up this argument, the learned counsel added that the fact that the applicant was a ten cell leader cannot arise at the stage of the skeleton written arguments as it was not deposed in the affidavit supporting the application as was the case in TUICO at Mbeya Cement Vs Mbeya Cement & anor, [2005] TLR 41. Mr. Msuya submitted further that the applicant states that the period from 18.07.2014 to 04.03.2015 was due to the lawyer who was in conduct of her case. She has, however, miserably failed to account for the delay before that. He stated that inaction by a lawyer has never been a sufficient ground to account for a delay. On this point the learned counsel cited Umoja Garage Vs NBC Holding Corporation [2003] TLR 339 and Abdallah S. Ndope & ors Vs National Housing Corporation, Civil Application No. 82 of 2011 (unreported). On the right to be heard, Mr. Msuya stated that that right is subject to other laws as the CPC; it is not absolute. In the circumstances, he stated, the applicant ought to have shown sufficient reasons for delay which she has miserably failed to account and thus prayed that this application be dismissed with costs. 3 In rejoinder, Mr. Russumo stated that substituted service is normally resorted to after failure to get the person intended to be summoned. This was not the case in the instant case, he stated. Mr. Russumo added that the negligence of the applicant's previous lawyer should not be used to punish the applicant. I have heard the rival arguments by the learned counsel for the parties. There is a confusion by the learned counsel for the applicant as to whether the decision intended to be challenged was a default or exparte judgment. Mr. Russumo does not seem to note any difference between the two. An exparte judgment is one given after the plaintiff has proved the case by learing evidence in the absence of the party having failed to appear and defend the suit. A default judgment is one given after the defendant has failed to file a defence and it is given without hearing the plaintiff's evidence. Unlike an exparte judgment, a default judgment would not need proof by adducing evidence. The reasons for delay given by the applicant as can be gleaned in the affidavit taken by Mr. Russumo supporting the application and after picking grain from the chaff as the application had several prayers some of which had been dismissed vide my previous ruling as being incompetent, and as per the skeleton written arguments and amplification thereof (at the hearing) by Mr. Russumo, learned advocate, are that the applicant was all along not aware of the proceedings against her. It is averred that the respondent ought not to have resorted to service by publication as it was aware of her whereabouts of the applicant who was a ten cell leader. The applicant, through Mr. Russumo, states that she became aware of the judgment and decree against her when she was served with a letter by Tambaza Auction Mart. In order to save the 4 sinking boat the applicant, procured a lawyer to address the ailment but that lawyer mishandled the matter, hence the delay. Mr. Russumo, in the affidavit and at the hearing of the application, has unleashed very strong allegations against the course taken by the respondent to resort to publication. He deposed and submitted that the applicant's residence is known and that the resort to serve her by publication was done with malice knowing full well that she could not read the newspapers. I agree with Mr. Msuya on most of the submissions together with the authorities cited ranging from the inaction of the lawyer to allegations of fraud. However, what is important in the present application is the sufficiency fo the reasons for delay. The reasons for delay given by the applicant as can be gleaned in the affidavit taken by Mr. Russumo supporting the application and after picking grain from the chaff as the application had several prayers some of which had been dismissed vide my previous ruling as being incompetent, and as per the skeleton written arguments and amplification thereof (at the hearing) by Mr. Russumo, learned advocate, are that the applicant was all along not aware of the proceedings against her and that the respondent ought not to have resorted to service publication as it was aware of her whereabouts. The applicant, through Mr. Russumo, states that she became aware of the judgment and decree against her when she was served with a letter by Tambaza Auction Mart. She states that she looked for a lawyer to address the ailment but that lawyer did not file an appropriate application, hence the delay. 5 Mr. Russumo, in the affidavit, has unleashed very strong allegations against the course taken by the respondent to resort to publication. He deposes that the applicant's residence is known and that the resort to serve her by publication was done with malice knowing full well that she could not read the newspapers. All considered, I am satisfied that the applicant has shown sufficient reasons why she did not challenge the default judgment in time. This application for extension of time within which to file an application to set aside the default judgment and decree delivered by this court on 16.04.2014 is, therefore, in the interest of justice, granted. The applicant to file the application sought for within a fortnight from the date hereof. In view of the peculiar circumstances of this matter, I make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 29th day of 0 c ^ 2 0 1 5 . ... ---- - Is' . I -----j J. C. M. MWAMBEGELE JUDGE