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 24th June & 15th September, 2015 RULING MWAMBEGELE, J.: The applicant Nasra Said is a judgment debtor in Commercial Case No. 130 of 2013. A judgment was entered exparte against her having defaulted to enter appearance when the case was called on for hearing. Upon being served with the execution process, she immediately attempted to have it halted through an application for injunction which was christened Miscellaneous Commercial Cause No. 315 of 2014. Unfortunately, that application did not sail through as it was found to be an abuse of court process. Feeling the urge to press on, she filed this application seeking for a total of four orders. Unfortunately, this time, two among the orders sought therein were held to be incompetent and struck out. This left only three of the orders sought for, to wit: 1 1. "That this honourable Court be pleased to grant an order for extension of time in order to file an application to set aside exparte Decree delivered on the 16.04.2014; 2. That Costs be paid; and 3. That this Honourable Court be pleased to grant any other relief it may deem just to grant. An affidavit in support of the application sworn by the applicant's learned counsel is basically to the effect that she was never aware of the suit which was against her because she had never been served with the summons and that she became aware of it after being served with the notice of execution. She states that her natural right to be heard was violated, and further that if the prayers are not granted she and her family stands to suffer irreparably. A counter affidavit was sworn by one Samuel Mangesho, and of relevance are statements therein to the effect that since there is a ruling and order of this court on the time limitation then this court is functus officio in as far as the issue of extension of time is concerned. It is on that regard that the respondent on the 12.03.2015 presented for filing a notice of preliminary objection that the Court is funtus oficio to adjudicate the present application on account of the decision of this court in Miscellaneous Commercial Cause No. 315 of 2014. In a reply thereto, the counsel for the applicant states that the doctrine of functus officio is not applicable in this case in that the question of limitation of time was not finally determined in Miscellaneous Commercial Cause No. 315 of 2014. After all, he argues, the doctrine is a mere technicality which cannot be applied in a situation where fundamental rights of a person are about to be denied. 2 The application was argued before me on 24.06.2015 prior to which the parties had earlier filed their respective skeleton written arguments pursuant to rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. The centre of controversy relates to the ruling of this court in Miscellaneous Commercial Cause No. 315 of 2014. In that application, the applicant had sought, as alluded to earlier on, for injunctive orders against the respondent in respect of the very same judgment which is the subject in the present matter. I have also shown that the said application was dismissed for being an abuse of court process for it was preferred in absence of a suit. My brother at the Bench Nyangarika, J. had reasoned that temporary injunction beyond the scope of the suit cannot be granted because the object was only to preserve the status quo of the parties while rights were being litigated. His Lordship went on to observe that though the learned counsel for the respondent did not seek leave to file a counter affidavit, the shortcomings which he highlighted could not be ignored. The said shortcomings related to absence of the suit upon which the application for injunction could be legally tenable as well as failure to take requisite steps immediately upon being aware of the court action. I have weighed the arguments the respondent's counsel in respect of the objection raised in the light of the said ruling. I have failed to see how the same renders this court functus officio in relation to the present application. It is trite law that a court becomes functus officio when it disposes of a case by a verdict or an order that finally and conclusively disposes of the matter. 3 The Tanzania Telecommunication case (supra) cited by the counsel for the respondent is in point here. I take that general statement in the Tanzania Telecommunication case (supra) to imply that in the case of applications, like the one at hand, the court should have been seized with the same application upon which it should have made an order which finally disposed of the matter, to the extent that the applicant could be precluded from coming to seek for the same orders. Thus, in such circumstances, this court could be functus oficio. Contrary to that statement, in my considered view, the present application and the previous one (Miscellaneous Commercial Cause No. 315 of 2014) are quite distinct because, whereas the former was seeking for injunction, the latter is for extension of time within which to make an application for setting aside the exparte decree. To me, nothing out of the said rule in Miscellaneous Commercial Cause No. 315 of 2014, arise therefrom either expressly or by implication which suggests that the applicant was thereby precluded from making this application on the basis of time limitation. This is so because, the considerations the court is required to make in these applications are different in that, whereas in the former, the considerations are preservation of rights of the party in pendency of the suit, in the latter, the consideration is mainly on the sufficiency or otherwise to explain away the delay. As can be gleaned from the proceedings and the ruling in Miscellaneous Commercial Cause No. 315 of 2014, nothing suggests that this court by dismissing an application for injunction was barring the applicant to bring the present application. 4 It is for the foregoing reasons that I find that the issue of this court being functus officio is out of order and as such has been raised as a misconception. I accordingly overrule this objection with costs. Order accordingly. DAR ES SALAAM this 15th day of September, 2015. J. C. M. MWAMBEGELE JUDGE 5