NA TZHC Simon23

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 35 OF 2d06 NATIONAL BANK OF COMMERCE LIMITED ..... I••••• PLAINTIFF VERSUS RABCO TANZANIA LIMITED ............................. ~sT DEFENDANT ABDUL BARAK.A ............................................... 2ND DEFENDANT KHADIJA BARAKA .......................................... 3RD DEFENDANT ! -----------------------------------------------------· ------ RULING MASSATI. J: This Is a multiple application for ex~ension of time, objection proceedings, and for an order to set aside the I judgment of this court dated .22/9/2006 and I the subsequent decree. The background is that a suit was filed in this court under summary procedure under 0. XXXV against the I I Applicant, Second and Third Respondents I by the 1st I I Respondent for the sum of Tshs.103,675,461.26. An I I application for leave to appear and defend was filed on I I I \ ) 2 I 31/7/2006. The application was supported by the affidavit of I i ABDUL BARAKA, the Applicant's spouse. iAccording to the records the Applicants were represented by Mr. Waissaka, I I learned Counsel. On 22/9/2006 I dismissed the application and entered judgment and decree for the Respondent. I Armed with the decree, the Respondent moved the court for an order 1 of execution by appointment of a receiver. : On 14/2/2007, I I granted that application. And so the house in dispute now 1 was set for sale on 25/3/2007. I However on 22/3/2007, the Applicant herein KHADIJA BARAKA, filed, under a Certificate of Urgency, the application referred to above. The principal ground of her application i:s that she was not served and did not instruct Mr. Waissaka to represent her in the application for leave to defend. Allthough learned I Counsel for the Applicant and the Respondent, had also dwelt 3 on other reasons, the main stay of there arguments revolved around whether the Applicant was or was not served. According to Mr. Ogunde, learned Counsel, the Applicant was not served, and all the signatures appearing as hers in the summons were forged. According to Mr. Nyika learned Counsel the signature appearing in the summons is that of the Applicant. So the central issue that I have to resolve is whether the Applicant was served. In resolving the present issue, I will bear in mind that as it is an allegation of fraud the burden of proof lies in the Applicant, and the burden is slightly higher, than in ordinary civil cases. Secondly in arriving at a decision, the court will have to consider all the surrounding circum$tances in their totality, and also base its findings on credibility. The first thing that I did was to compare the signatures of the Applicant appearing in the summons elated 11/7/2006 • 4 alleged to be signed by the Applicant with that in the Debenture and the affidavit. My finding is that they are so similar that I am convinced that they must have been signed by the same person. So, unqer s. 75 of the Evidence Act, I find that the Applicant signed them. The second set of facts I have considered I is the conspicuous absence of Mr. Abdul Baraka, who acknowledgedly is the Applicant's husband, according to whose affidavit filed in support of the application for leave, is on record to have done so also on behalf of the Applicant. There is no other evidence to contradict this averment. Then there is an appearance by Mr. Waissaka, advocate whom the Applicant denies to have ever instructed. This is not the first case of this kind. In SAID SALIM BAKHRESSA VS ALLY A. NGUME [1997] TLR 312, the Applicant had also denied service and instructing Counsel who appeared for him in the lower courts. The Court of Appeal said: - 5 i "Generally there is no formal procedure laid down for i instructing an advocate to defend a client in a trial, the I I instructions may be given by the client, himself, or any other person on his behalf. " The court also went on: "Where an advocate had appeared in co'µrt in defence of I the Appellant at the trial and had go17e to the whole I length of preparing for a case and conducting it in court, I I it would be most unusual and improbable I that the advocate would not have been properly instructed. " I I Taking all these circumstances, I am more than satisfied that I the Applicant not only was served with the : summons, and I I therefore aware of the existence of the suit biut also through I her husband, ABDUL BARAKA:, instructed Mr. Waissaka to . 6 " appear and represent all the Defendants in the application for leave. find it highly incredible and improbable that Mr. I Waissaka could have gone all the way to appear for the Applicant without proper instructions. It is th~refore my finding I that the Applicant was aware of the suit especially as neither ABDUL BARAKA, nor MR. WAISSAKA had fi'led any affidavits or joined as parties in this application. Having made that finding, and it being the only, if not the principal reason, for extension of time to', file the other I applications, I will make a further finding that no reasonable or sufficient cause has been disclosed under s. 14 (1) of the I Law of Limitation Act for delay in filing the intended applications. The application therefore stands dismissed with costs. Execution process is to proceed.