NEW EZOYE ENTERPRISES T LTD VS YARA T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 23054 OF 2024 (Arising from Misc. Commercial Case No. 69 of 2023) BETWEEN NEW EZOYE ENTERPRISES (T) LTD ………………………………...……APPLICANT VERSUS YARA TANZANIA LIMITED………………………………………………RESPONDENT RULING Date of last order:05/02/2025 Date of Ruling: 14/03/2025 GONZI, J. Under Section 14 of the Law of Limitation Act, CAP 89 [R.E 2019], the Applicant filed this Application and prayed for orders that: a. The Honourable Court be pleased to grant the Applicant an order for extension of time to file an application to set aside 1 the Exparte Judgment which was delivered by this Honourable Court on 16th day of August 2024. b. Any other reliefs and or direction the Court shall deem fit to grant The Application was supported by an affidavit of Ambroce Menance Nkwera and Dickson Pius Nduguru, Learned Advocates of the Applicant. It was opposed by Counter Affidavit of Elizabeth John Mlemeta, Advocate for the Respondent. In their Joint Affidavit the Learned Counsel for the Applicant adduced that the delay to make the Application to set aside the exparte Judgment that was passed against the Applicant was not deliberate as from time to time they were in Court corridors pursuing other rights. Further that the applicant never rested in following up to be supplied with copies of the exparte Judgment and hence, the delay is, therefore, a technical delay. This assertion was contested by the Respondent who asserted that the reason for exparte order was caused by negligence of the advocates of the Applicant and that the Applicant has not accounted for four days of delay from 12th September to 17th September when the present matter was electronically filed. 2 The hearing of the Application proceeded by way of written submissions. The Applicant enjoyed the service of Ambroce Menance Nkwera Learned Advocate, whilst the Respondent was represented by Nuhu Mkumbukwa, Learned Advocate. I thank both Learned Counsel for their submissions. In the submissions in chief for the Applicant, Mr. Nkwera, Learned Advocate, submitted that extension of time may be granted upon adducing reasonable grounds and accounting for each day of delay. He referred the Court to LYAMUYA CONSTRUCTION COMPANY LTD V. BOARD OF REGISTEREDTRUSTEE OF YOUNG WOMEN CHRISTIAN ASSOCIATION OF TANZANIA, Civil Application No. 2 of 2010 [2011] TZCA 4. He submitted, further, that reason for delay was that the exparte Judgment sought to be set aside was delivered on 16th August 2024, however, copies thereof were supplied to the Applicant on 28th August 2024. By that time only one day was left for the Applicant to set aside the exparte Judgment as required by Rule 43(2) of (2) of the High Court (Commercial Division) Procedure Rules, 2012, as amended, which provides that an application to set aside an exparte judgment should be filed within 14 days. He submitted that in the due course, the Applicant filed Misc. Application No. 3 15098 of 2024 for setting aside ex-parte order which was yet to be determined, they were thus barred from filing another application of setting aside ex-parte judgment as the same would be considered forum shopping. He cited the case of JONAS MREMA VERSUS JANETH ELLY TEMU Civil Application NO. 887/01 OF 2023 [2024]TZCA 950. Mr. Nkwera, submitted that from 28th August 2024 to 2nd September 2024 the Applicant was waiting for determination of Misc. Commercial Application No. 15098/2024 for setting aside the exparte order whereby the Ruling thereof was delivered on 2nd September 2024 in which the Application was struck out. He added that from 2nd September 2024 to 12th September 2024, the Applicant was preparing documents to be filed in Court and filing the present application itself. In reply, Mr. Mlemeta, Learned Advocate, submitted that the Applicant failed to account for each day of the delay as the Judgment was delivered on 16th day of August 2024 whereby under the law the Applicant was duty bound to file an application for setting aside the exparte order by 30th day of August 2024. He argued that the present application was filed on 17th September 2024. Mr. Mlemeta submitted that the Respondent does not dispute the assertion that the Applicant obtained the Judgment on 28th day 4 of August, 2024. He argued that by then the Applicant was within the prescribed 14 days where he ought to have filed his Application for setting aside exparte orders. Mr. Mlemeta submitted further that the Applicant has failed to account for each day of the delay as required by the law and without sufficient reasons as in their affidavit under paragraphs 15 and 17 no reasons were adduced and neither were the days of delay accounted for. He referred the Court to ABSA Bank (T) Ltd (formerly Barclays Bank (T) Ltd) v. Tanzania Pharmaceutical Industries Ltd & 3 Others, Miscellaneous Commercial Application No. 142 of 2022 & Misc. Commercial Application No. 015064 of 2024 between M/S Rift Valle Products Limited vs. M/S Matongo Farming Company Limited. He submitted further that submissions do not constitute evidence it is the affidavit itself that constitute the evidence see The Registered Trustees of the Archdiocese of Dar-es-salaam v The Chairman of Bunju Village Government & 11 others. Submitting in alternative, Mr. Mlemeta submitted that since the application was filed on 17th September 2024, the Applicant ought to have accounted for each day of delay from 30th August 2024 the day on which they obtained the Judgment, to 17th September 2024. However, the 5 Applicant only accounted for 10 days that is from 30th September 2024 to 12th September 2024 but not to 17th September 2024 when the Application was filed in Court thus the remaining 4 days ought to be accounted for. Mr. Mlemeta, Learned Advocate, prayed for the Application to be dismissed for lack of merit. There was no any rejoinder. Hence, that marked the end of the submissions by the Learned Counsel. I am now set to determine the application at hand. Granting of extension of time is entirely the discretion of the Court. The Court upon sufficient cause for the delay or for extension of time being shown, may grant the application for extension of time. The principle is that in applications for extension of time, like the present one, there is no hard and fast rule as to what amounts to “sufficient cause”. Each case should be determined on its own merits bearing in mind the prevailing circumstances of the case. This rule was restated in the case of REGIONAL MANAGER, TANROADS KAGERA V. RUAHA CONCRETE COMPANY LTD CIVIL APPLICATION NO.96 OF 2007 (CAT unreported), where the Court held that: “What constitutes sufficient reasons cannot be laid down by any hard or fast rules and this must be 6 determined by reference to all the circumstances of each particular case”. In the instant application, the reasons for the delay in lodging the intended application to set aside the exparte Judgment, as per the applicant’s affidavit, are outlined in paragraphs 12-16 thereof thus: 12 . That the Applicant after knowing that the case has been ordered to proceed exparte he filed an application to set aside the order but the respondent herein filed preliminary objection as the application is overtaken by event, we concede to the preliminary objection and the Court struck out the application. Copy of the Order is herein attached and marked as “Annexture NA-5” and leave of the Court is craved for the same to from part and parcel of this joint Affidavit. 13 .Those, the Court on 16th day of August 2024 deliver the exparte judgment against the Applicant herein who is the defendant in the main case on 17th day of August 2024 we filed a letter to be availed with copies of the judgment and Decree and we received the same on 28th day of August 2024 where we had just left with one day to file application to set aside exparte judgment and at the same time there was another application before the Court. “ Copy of the Exparte Judgment and decree and letter requesting for the copies of the Judgment is herein attached and collectively 7 marked as “Annexture NA-6” and leave of the Court is craved for the same to form part and parcel of this join affidavit. 14 . That, after the delivering of the Judgment of the Court we made follow-up to be availed with the Copy of the Judgment and the same we received on 28th day of August 2024 after the Decree had some defects and counting from the date in which the Judgment and decree of the Court was issued to the Applicant. 15 . That, after receiving the copies of judgment and decree we found ourselves out of time to file an application to set aside the exparte judgment hence we file this present application to be extended time to file the application. 16 .That, there was application which was pending before the which is Miscellaneous Commercial Application No. 15098 of 2024 which was pending before the Court and the Applicant could not proceed to file application for setting aside the exparte judgment while there was another application and after the struck out of application the Applicant Counsel had to prepare this application as the same was necessitated since the time to file application for setting aside exparte Judgment had already elapsed. 17 . That, for the interest of Justice let the prayers in the chamber summons be granted” Rule 43 (2) of the High Court (Commercial Division) Procedure Rules, 2012, as amended, states that: 8 “Where the Court has entered an exparte Judgment or passed a dismissal order or any other order in accordance with order IX of the Code, it shall be lawful of the Court, upon application being made by an aggrieved party within fourteen days from the date of the Judgment or the order, to set aside or vary such Judgment or order upon such terms as may be considered by the Court to be just.” It is undisputed that within 14 days after exparte order or Judgment one may bring an application in Court to set it aside or vary such Judgment. In this case, both parties do not dispute that the exparte Judgment was delivered on 16th day of August 2024 and was supplied to the parties on 28th day of August that is after 12 days of the Ruling. The Applicant therefore remained with two days only to file the said application in Court. I have considered the rival arguments by the Learned Counsel for both sides. In my decision I am guided by the principle that “A litigant should not be allowed to suffer through the mistake of an officer of Court connected with the administration of justice.” That principle was restated in the case of VIP Engineering & Marketing vs Société General De Surveillance (SA) and another, Commercial Case No.16 of 2000 (unreported). Also, it was reiterated and emphasized in the case of MOUNT MERU FLOWERS 9 TANZANIA LIMITED VS BOX BOARD TANZANIA LTD; CIVIL APPEAL NO.260/2018 CAT AT ARUSHA (unreported), where the Court held that: "Parties should not be punished for errors committed by the Court and cases need to come to an end if the Court sees that no substantive justice was breached". In the present application, it transpires that the Applicant had timely applied to be supplied with certified copies of the exparte Judgment. The Respondent does not dispute this fact. Therefore, all the waiting period for the same to be supplied by the Court deserves to be excluded as the Applicant cannot be blamed for any inaction during that time especially as the Applicant was following up in Court. The Applicant by then had already filed Miscellaneous Application No. 15098/2024 seeking to set aside the exparte order. This was later struck out but it does not negate the fact that the Applicant was already in Court vindicating his perceived rights. The Respondent has asserted that paragraphs 15 and 17 of the Applicant’s affidavit do not show sufficient reasons and do not constitute accounting for each day of the delay. I have gone through the paragraphs 15 to 17 of the Affidavit supporting the Application at hand. The applicant 10 clearly stated in paragraph 16 he had timely filed an application, that is, Miscellaneous Application No.15098/2024 upon which another application could not be lodged regarding the same matter and that only after it was struck out that the subsequent days were used in preparation of the instant application. The said Miscellaneous Application No.15098/2024 was attached as Annexture NA-5 and I have gone through it. The Application aimed to set aside exparte orders, however, it was struck out on 2nd Day of September 2024. The time spent in a Court corridor by the applicant in further pursuit of his rights resulting into delay, renders that delay a technical one constituting a good cause for extension of time. See Omary Ally Nyamalege (as Administrator of the Estate of the late Seleman Ally Nyamalege) & 2 Others v. Mwanza Engineering Works, Civil Application No. 94/08 of 2017, (at Mwanza) and Hamisi Mohamed (as the administrator of the Estate of the late Risasi Ngawe) v. Mtumwa Moshi (as Administratrix of the Estate of the late Moshi Abdallah),Civil Application No. 407/17 of 2019, (at Dar es Salaam) both un reported). 11 Since the Applicant was in Court corridors pursuing her rights in Miscellaneous Commercial Application No. 15098/ 2024, the time from 28th August 2024 to 2nd September 2024, is condonable. The time then began to run as counted from 2nd day of September 2024 the moment when the Application was struck out to 17th September 2024 when the Application at hand was filed in Court. I have gone through the electronic case file in the electronic case management system. The application at hand was submitted in Court on 12th September 2024. That was after 10 days. The control number was extracted on 17th September 2024 and according to the system it was filed on 17th September 2024. The application was actually submitted in Court by the Applicant on 12th September 2024. The Applicant had no control over the internal Court processes until the application was admitted on 17th September 2024 and, as such, the delay thereof cannot be attributed to him. I am satisfied that the ten days delay from 2nd September to 12th September 2024 was accounted for as the days the Applicant used in preparation of the instant Application. I have found, therefore, that the Applicant has sufficient cause warranting extension of time. In the upshot the application is granted. The Applicant is granted 7 days from the date of 12 this Ruling to file an application for setting aside an Exparte Judgment. Each party shall bear its own costs. It is so ordered. A. H. GONZI JUDGE 14th March, 2025 Ruling is delivered in Court this 14th day of March, 2025 in the presence of Ms. Digna Jumanne, Advocate for the Respondent also holding brief for Mr. Amboce Nkwera, Advocate for the Applicant. A. H. GONZI JUDGE 14th March, 2025 13