Ramani v Ikohi Set aside dismissal order

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 10589 OF 2024 RAMANI IO COMPANY LTD…….…………………………………. APPLICANT VERSUS IKOHI COMPANY LTD………………………………………………. RESPONDENT RULING Nov. 4th, 2024 & Feb. 14th, 2025 Morris, J The applicant’s case was dismissed by this Court for want of prosecution on 29.04.2024. On that day, both parties were absent for the pre-trial conference. He is now pursuing two correlative reliefs: an order setting aside the dismissal of Commercial Case No 160 of 2023 (the case); and consequently, restore the case and schedule for its determination. The affidavit of Happyness Macmillan Kawiche, an advocate from Locus Attorneys supports the application. However, Mr. Mussa Kyobya, the respondent’s counsel, lodged a counter affidavit in opposition. 2 The facts of this matter tread on the introduction given in foregoing paragraph. The case was fixed for first pre-trial conference on 29.04.2024. None of the parties did enter appearance. The Court dismissed the case pursuant to rule 28 of the High Court (Com m ercial Division) P rocedure R ules , 2012 (the R ules ). According to the presented depositions, appearance of the applicant’s counsel was mired by her ailment. Whereas the respondent did not unveil what caused his absence, his counsel confirmed that he saw the opposite party’s advocate in the Court’s premises a little while after the case was dismissed. Nevertheless, the contention was mounted by the respondent that the applicant’s non- appearance was without a just cause, given the fact that he had engaged the law firm with a good number of advocates. On 24.09.2024, the Court ordered hearing of the matter to proceed by parties filing written submissions. Each side complied with the fixed schedule thereof. The respective submissions were filed by Messrs. Makarios Tairo and Mussa Kyobya, learned advocates for the applicant and respondent. Both parties prayed to adopt the affidavital depositions as part of their submissions. For the application, Mr. Tairo started by arguing that the 3 absence of the applicant on 29.04.2024 was caused by circumstances beyond the control of his advocate. He swiftly asserted that the respondent technically supported the application because he did not depose facts which clearly controverted the averments of the applicant’s counsel. To him, the depositions of one party which are not opposed by another are as good as admitted evidence by the latter. The case of East African Cables (Tanzania) Ltd v Spencon Services Ltd , Misc. Civ. Appl. No. 61 of 2016 (unreported) was cited to buttress such argument. Furthermore, it was the applicant’s argument that the Court enjoys unfettered discretion to grant the application. He also supported the principle that such discretion should be exercised judicially depending on the merits of facts. He invited the Court to refer to M selem u Kanpili v W aziri Thabiti , Crim. Appeal No. 396 of 2019 (unreported); and M w ita M here v R [2005] TLR 107 in this regard. To him, the Applicant clearly demonstrated that there existed justifiable circumstances for the Court to grant the application thereby according parties the right of being heard in line with 4 Articles 13 (3), (6) and 107A (2) (e) of the Constitution of the United R epublic of Tanzania , 1977. On his part, the respondent contested by submitting that the application was devoid of any merits. Nevertheless, unconventionally he raised a new point which he had not prefaced before the date of hearing. He contended that the applicant did not attach a copy of the impugned dismissal order to his application. Thus, he purported to put the applicant on notice in that such anomaly was illegit. To the respondent, the law requires that the application of the present nature must be accompanied by the copy of the decision which is sought to be set aside. Reliance was on Am os Fulgence Kalungula v Kagera Cooperative Union 1990 Ltd, Civ. Appl. No. 151 of 2018; Nganga & Others v Abdallah , Civ. Appl. No. 136 of 2004; and Hassani R am adhani v Saada M ussa , Civ. Appl. No. 84 of 2003 (all unreported). On such basis, the respondent prayed that the application should be struck out for want of competence. In an alternate disputation, Advocate Kyobya submitted although it was upon the Court’s discretion to determine this application favourably, such powers ought to be exercised wisely upon being supplied with sufficient 5 cause. The respondent argued that the applicant’s sole ground for non- appearance was that his advocate felt sick though he saw the applicant’s counsel in court on the fateful day. To him, the applicant did not sufficiently disclose why another or other advocate(s) was/were not deputed to take over after Ms. Kawishe fell sick. Further, the respondent argued that the allegation that other advocates were engaged in other courts’ proceedings was not only deceptive but also no tangible proof was provided. On such basis, he recapitulated the principle that, the affidavit with deceptive depositions cannot be relied upon by the Court consequent of which the application collapses for lack of supportive affidavit or having the affidavit with hearsay assertions. In this connection, he cited Bashir Ally v Anyegile Andendekisye M w am aluka & Others , Civ. Appeal No. 49 of 2021; I gnazio M essina’s case supra; Suzan Ng 'ondo v Anna Sam w el Urassa , Civ. Appl. No. 606 of 2021; and Jam al S . M kum ba & Others v The Attorney General , Civ. Appl. No. 240/01 of 2019(all unreported). In addition, the respondent contended that, the applicant was obliged to prove all allegations per the law instead of craving for the mercy under 6 the provision of the Constitution or the doctrine of “overriding objective” because such reliance is subject to diligence observance of mandatory provisions of the law per the holding in M artin D. Kum alija & Others v I ron & Steel Ltd , Civ. Appl. No. 70 of 2018(unreported). Consequently, the respondent prayed for the dismissal of the application with costs. In rejoinder, the applicant commenced by opposing the approach adopted by the respondent to put the former on notice of a point of law in the reply submissions. He asserted that the subject mode was irregular and the Court should not condone it because the objection is not reflected in the affidavit and the cited authorities thereof were distinguishable. To the applicant, the raised point was equivalent to facts from the bar/ street which was bad in law pursuant to DP P v Barick Enos M w asaga , Crim. Appeal No. 472 of 2019; Said Sultan Ngalem a v I sack Boaz Ng'iw anishi and Others , Civ. Appl. No. 362/17 of 2021 (both unreported); and Trasafrica Assurance Co. Ltd v Cim bria (EA) Ltd (2002) E.A 627. The applicant also argued that even if the point was to be considered, the authorities cited related to applications not similar to the current proceedings; and/or Courts thereof were being invited to deal with 7 proceedings which were not before them while in the application at hand, the file is before this Court. With regard to the contention that the application was supported by the affidavit with deceptive depositions, the applicant rejoined by stating that, each statement in the applicant’s affidavit was supported by requisite proof, where applicable. To the applicant, there were no hearsay depositions calling for affidavits from other persons stated in his affidavit. Finally, he reiterated that, basing on the strength of grounds supporting his application; the matter called for a favourable determination by this Court. I have dispassionately considered the depositions and rivalry submissions of the parties. The issue to be determined is whether the application is supported with adequate grounds. However, before I set the Court to answer it, I will first deal with the contention surrounding the approach employed by the respondent regarding the attachment of the impugned order. In essence, the respondent introduced the concern-turn- preliminary objection (PO) by stating that he has noted that the application did not contain a copy the dismissal order. Simply put, he purported to note 8 the omission at the time of writing the submissions in opposition, not earlier; not any other time. Undisputed thus, is the fact that the opposition in the foregoing respect was raised by the respondent in his reply submissions. Times without number, the courts have been loath to condone points raised by one party against the opposite party’s case on a surprise basis. There are a number of reasons for such disinclination. I will restate them here-and-now. First, instead of raising the so-called contention as a PO at the earliest, the respondent waited for his opportune time to present it and fully argue in its support. The point to note here is that the reply submissions were meant for hearing of the application not otherwise. Second, the approach adopted by the respondent was a total surprise to the opposite party. Given the fact that it was raised at the spur of the moment, the applicant against whom requisite ‘notice’ was not served well in advance; was without adequate time to prepare and respond accordingly. Consequently, his right of being heard and/or fair hearing is prejudiced. Third, the respondent submitted over the matter not before the court. 9 Fourth, he engaged the court and/or the applicant with afterthoughts and extraneous matters thereby distracting the coherence of the proceedings. Fifth, the objective of the PO was beaten. Ordinarily, a successful PO leads to defeating the suit/trial without wasting time by determining the merit of such matter. When the purported PO is raised inordinately late; as is the case hereof, the mischief is far from being cured. Sixth and most serious of all, the respondent raised and argued such ‘PO’ illegitimately by usurping the powers of the Court. In other words, he gave himself the mandate to submit on the matters not before the Court and/or without the corresponding order. The above observations in perspective, it becomes logical to reason that although the defence may be considered that it was heard on the PO by way of rejoinder; two wrongs do not make a right. Put otherwise, the applicant had an option of imploring the Court to shelf the raised issue and/or seek adjournment in order for him to make necessary preparations before responding to it. Nonetheless, he preferred to respond instantly instead, thereby falling into the respondent’s trap of taking proceedings in own hands in total exclusion of the Court. Both parties are thus, at fault in this respect. 10 The Court will be least expected to swim along with the parties into further imperfection in this regard. The basis is straightforward. The contention which has been raised is not jurisdictional in nature. In law, the question interrogating the court’s jurisdiction can be raised at any stage of the proceedings [Yazidi Kassim t / a Yazidi Auto Electric R epairs v AG , Civ. Appl. 354/04 of 2019; M asasi Construction Co. Ltd v P erm anent Secretary, M inistry of Agriculture & Food Security , Civ. Case No. 100 of 2009 (both unreported)]. Consequently, I will not consider the respondent’s point hereof any further. After laying the foregoing foundation, the Court now proceeds to determine whether or not the application at hand is with any merit. The Court dismissed the suit stated above pursuant to rule 28 of the R ules . Principally, the order made under such rule may only be set aside by the Court “on such terms as it considers just”. Thus, I am at par with both the applicant and respondent that the Court is clothed with discretionary powers to set aside its dismissal order. However, the applicant is enjoined to exhibit to the Court facts and evidence to be used in assessing whether or not his appearance was prevented by a just cause. In other words, for the Court to 11 conclude that its decision to set aside its dismissal order is just, a prior assessment of the applicant’s grounds is inexorable. In the matter at hand, the applicant fronts one major ground that caused his counsel’s non-appearance on 29.04.2024. That is, ailment. According to paragraphs 4, 6 and 8 of the affidavit in support of the application, the subject advocate fell sick a day before (annexure RCL 1) and was subsequently delayed by the call of nature while in the Court premises. The applicant’s submissions are equally reiterating the said sickness as the root cause of his advocate’s absence. In order to assess whether the ground stated by the applicant suffices to support the application, the Court makes several findings below. One, the respondent did not contest the averment of the applicant’s counsel that she fell sick on 28.04.2024 (para 4 of the affidavit and annexure RCL 1). I have taken time to read the whole counter affidavit. No paragraph therein opposed the ailment allegations. In law, depositions in the affidavit are only controverted by the counter testimonies. Submissions for or against the corresponding deposition, however strong they might be, they carry with them no evidential value before the court of law. That is the law. [see, 12 the R egistered Trustees of Archdiocese of Dar es Salaam v The Chairm an, Bunju village Governm ent , Civil Appeal No.147 of 2006; and I son BP O Tanzania Lim ited v M oham ed Aslant , Civil Application No. 367/18 of 2021 (both unreported)]. Two, the respondent’s omission above notwithstanding, even uncontested fact should not be taken by the Court outrightly as being truthful. Thus, I studied annexure RCL 1 attached to the affidavit. On its face, the annexure comprises of the hospital’s diagnostic laboratory form and the discharge form. Both credentials bear the name of Happiness Maximillian Kawiche and are dated 28.04.2024. These details correspond with the particulars in the affidavit attached to the application. Hence, in the absence of any tangible opposition of the deponent’s averment in this regard, the Court lacks any other evidence to analyse adversely. Three, despite the alleged sickness as discussed above; the applicant’s counsel asserted that she made it to the Court for appearance on 29.04.2024 only to be interrupted by the sickness which forced her to visit the washrooms until the case was dismissed. This assertion was seriously contested by the respondent. Under paragraph 4 (c) and (e) of the counter 13 affidavit, the respondent contended that the avowals by the applicant’s counsel were untrue and called for strict proof. In addition, the respondent was assertive that if the subject counsel was sick, another advocate working in the firm she came from should have taken over. Naturally, a substantial part of the respondent’s submissions and the applicant’s rejoinder was dedicated to such contention. With adequate consideration, the effort from both sides in this regard was uncalled for. To begin with, the counsel who was instructed to appear on the fateful day deposed that she did come to court despite the ailment. Further, per paragraph 4 (d) of the counter affidavit, the respondent counsel saw her in Court premises albeit later than the scheduled time. In part, the respondent’s counsel stated that he “was in court at all times and so the deponent came in court at around 9 hours”. In this regard thus, the contention changed from being that of not being in Court due to sickness but of coming late in court. All the same, the assertion that the respondent’s counsel was in Court at an appropriate time does not correlate with the court record because he also did not enter appearance when the case was called for the conference proceedings. 14 The observation above notwithstanding, I am not naïve to the principle that being in the court premises does not amount to appearance (Cases). Hence, whether the applicant’s counsel arrived late in Court or was in the premises when the case was tabled to proceed; what counts is the undisputed fact that the case was dismissed in the absence of parties. Nevertheless, having found above that the applicant counsel proved her sickness; the statement that she made necessary efforts to come to court on the scheduled day, which fact is corroborated by the respondent’s counsel, the Court is inclined towards finding further that the applicant’s counsel took essential initiatives in the circumstances. In line with the forgoing circumstances, evaluation of evidence and analysis of legal aspects; I hold that the issue raised herein is answered positively. Thus, the application stands granted. For avoidance of doubts, the dismissal order of 29.04.2024 is hereby set aside; and the case is accordingly restored. Consequently, the same shall proceed to the next stage. Costs shall follow the outcome of the just-restored suit. 15 It is so ordered. C.K.K. Morris Judge February 14th, 2025