20151001 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) ··-- AT DAR ES SALAAM · - MISCELLANEOUS COMMERCIAL CAUSE NO.- 2-1 OF 2016 (Arising from Commercial-Case No. 128 of 2014) RUVU GEMSTONE MINI-NG CO. LIMITED ....•................... APPLICANT

VERSUS RELIANCE INSURANCE COMPANY (T) LTO .................. RESPONDENT 4 th & 20 th June 20, 2016

RULING MWAMBEGfil=E, J..!'.: This.is a ruling in respect of- an· application for extension of time within which to make an application for extension of the lifespan of Commercial Case No. 12s· of 2014 arid for extension of the lifespan of the said case. The application has been made under section 14 (1) of the Law of Limitation Act Cap. 89 of the Revised· Edition, 2002 and 95 of the Civil Procedure Code Cap. · 33 of the Revised Edition, 2002 as well as Rule 32 (2) and (3) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of _2012 (hereinafter "the Rules"). This application was agreed by the parties and blessed by the court to be disposed of by way of written submissions. Mr. - Chuwa, learned counsel, bases his submissions mainly on his affidavit. He argues that delay of determination of the said suit was not on applicant's own making. He gives - - an account of what transpired in the proceedings from the partial settlemenF of the suit, the delay in filing the witness statements by the respondent, grant-- of an application for doing so by this court, to adjournments and finally thatt-_ the applicant has been diligently prosecuting the matter: The applicant cites several decisions to support his arguments. These are: Tanzania Knitwear· · Ltd Vs Shamshu Esmail [1989] TLR 48 (HC), Africa Medical Research Foundation Vs Stephen _Emmanuel & Others DSM Civil

Case No. 17 ofL- (·. 2011 (unreported) and Electrics International Co. Ltd Vs Archplan_ International Ltd & 4 others, Civil Case No. 16 of2003 (unreported). On the other hand, Mr. Jethro. Turyamwesiga, learned counsel, for the respondent, relying on the counter~affidavit of Adolf Runyoro, counters those· arguments on mainly two angles. First, that no reasons are given for delay to~- apply for extension of the lifespan of the suit but rattier the reasons given are those for delay to determine the. matter, that no account is made for the five; . . months delay that js from Septembar 2015 to February 2016 to file an=~- application for extension of the lifespan. Secondly, an~ in the nature of a preliminary point of law, that the application is omnibus and thus bad in law in that it contains two· applications in· one. He argues that in the light oft . F- .:· Rutagatina C.L Vs the Advocates' Co1!7mittee, Civil Application No. 98 of 2010 (unreported), it should be dismissed, and further that this being an: t application for which time within which to institute it is not provided, it should· have been brought within 60 days from the day the lifespan expired in terms of item-21 to part III of the Cap. 89. . . Strange approach to· rejoinder was adopted by Senior Counsel Edward Peter · Chuwa in a somewhat evasion to the submissions in reply to his submissions- in-chief. He crafted a

letter to · this court dated 06.06.2016 and titled 2 "FAILl)RE TO FILE REJOINDER SUBMISSIONS". Therein he blames and laments as hav\ng been denied a -chanc~ to-do .so due to the respondent's delay to serve on him the reply submissions. That the same were .served to him far beyond the time scheduled for him to file his rejoinder a_nd therefore in his tone: "We humbly ask the court to take note of this . . . .. omission and "excuse us" for failure to file ·the·. ·- rejoinder as ordered" The respondent has raised a point which is in the nature of a preliminary objection to the effect that the appl_ication is omnibus because it is a two-in- ane application; an application for extension of time to apply for enlargement·· .. - - . ~. - of time within which Commercial Case No. 128 of 20·14 should be finalized and an application for extension of time· within which the case should be finalized. The learned courisel relies on· the. Rutagatina case (supra) and - - · Jovin Mutagwaba Vs Geita Gold Mining Ltd, Civil Appeal No. 23 of 2014 '> - (CAT unreported) for the proposition thatthat course· is· not permissible. This issue was well articulated by this court [Mapigano, J. (as he then was)] in Tanzania Knitwear i'h which, faced with a similar situation - the issue whether an application which unites two distinct applications in one application, namely an application for setting. aside a~

temporary injunction and an application for injunction is bad at law. His Lordship observed at page 51: " ... the combination of the two applications is not bad at law. I know of no law that forbids such a course. Courts of law abhor multiplicity of 3 t proceedings. Courts of law -.,encourage the opposite." The above quote was affirmed· by the Court of Appeal in MIC Tanzania Limited Vs Minister for- Labo-ur and Youth Development, Civil Appeal No. 103 of 2004 (unreported). In that case, the Court .~f Appeal appreciated --· . the foregoing quote in Tanzania -Knitwear as the correct position of the law. The Court of Appeal stated-: · "In the TANZANIA_ KNITWEARLTD case.· (Supra), the application had united two distinct applications, namely one for setting aside a · 'temporary injunction and another for issuance of a temporary -in]UnCtiOn'. · Objection· was taken against such a- 'combination on the ground that it • -was bad •in law. Mapigano, J; (as he then was) ·held: In my opinion . ... . the combination of the two applications is not bad at law. I know of no law that forbids such a course. Courts of law abhor· multiplicity of proceedings. Courts of law encourage -theopposite.· The· learned_ Senior State Attorney in this appeal has invited us to disregard the holding of Mapigano, J; because we are not bound by it. Indeed we are not bound .by it and there is no direct decision of

this Court on the issue. 4 • I' However,- that cannot be a hindrance to. w;• in our endeavours to ensure that substantive justice always prevails. After all, judicial process is not a discovery process but a creation process. Having so observed, we hold that the ruling of Mapigano, J. on the issue cannot be faultecf, and we are respectfully in· agreement with him." [Bold supplied]. In the case at hand, the applicant has c;ombined two applications in one: an· application for, first, extension of time within which to apply to this court for ·· · 1, -' enlargement of time of the lifespan of ·commercial Case No. 128 of 2014 and, · : ·· · secondly, for enlargement of the lifespan ·of the said case. l think the course , .. > taken. by the applicant is;- in the light of the Tanzania Knitwear case, quite in order. In the circumstances ·of Tanzahia:where the Vision of th~ Judiciary is to administer justice effectively, effi'cientl:y and timely, it wiil be out of place · for courts of law to encourage multiplicity of proceedings because this course would defeat the very purpose for which the Vision is intended tg achieve. This said, I am not prepared to buy the contention of the respondent on this take. For the avoidance of doubt, I have read the · Rutagatina and Mutagwaba cases cited to me by the learned counsel for the respondent. I think they are distinguishable. In Rutagatina the

Court of Appeal was grappling with the Court of Appeal Rules, 2009 .and found that they do not provide for an omnibus application. And in Mutagwaba, the same court was dealing with the rules and wondered "why an application for leave in a land matter should be combined with an application to file a notice· of appeal under 5 . . the Appellate Jurisdiction··Act." By'any stretch of the mind, the two cases can=- be distinguished from tHe present case for the main reason that the present~ application has not been taken under the Court of Appeal Rules, 2009. r It my view that the cases can be distinguished from the present case for two_ main reasons; first, the present application has not been taken under the·- -- . Court of Appeal Rules, 2009 and secondly, ·applicati_ons in those case were found to be omnibµs and consequently struck because they_ combined two or more applications which were unrelated. For the avoidance of doubt, the MIC Tanzania _case was an app~al from the decision of this court which entertained ~vyo interrelated appltcations; At this juncture, I find it irresistible . to quote the observation of iny brother at · • 1 :Y1l/ i '. .j the Bench Dr. Ndika, J. in Gervas Mwakafwila_ & 5 Others Vs the-- · 1 . . . . . . Registered . - ·: Trustees of Moravian:·church in. Southern . . Tanganyika,;.. Land Case No.. 12 bf . '-2013 (unreported)/ ·wherein,· faced with an

identical: · . . . . - .( situation,· discussed. the seemihg'l-r twt, diametrically opposed positions of the=" . . . . · Court of Appeal in MIC Tanzania and:-Ruta-g.atina cases. His Lordship held: "~ ...~ find the reasoning in ·MIC Tanzania Limited v · Minister for Labour· and Youth Deveiopment · (supra) and. Knitwear Limited :v· Shamshu Esmail (supra) highly persuasive .. Com·pilation of several separate · but interlinked and interdependent 1 prayers_ into one chamber application, indeed, - prevents multiplicity of proceedings. A combined application can still be supported by. a. single affidavit, which must, then, provide all necessary facts that will provide justification for granting 6 " each and ,every prayer in the Chamber Summons. The fear thaLa single,affidavit cannot legally and properly support more thah: one prayer is over the top. On balance, an. affidavit is ·not mystical or magical creature that cannot be crafted to fit the . circumstances of a particutar case. It is just a vessel through _which evidence . is presented in court. · I must hasten to say, however,. t~at I am aware of the possibility of an application being defeated for being- omnibus especially where it contains prayers which are not interlinked or t,. interdependent. I think, where combined prayers are apparently in~ompatibie or discordant, the omnibus 0pp!ic@tion may inevitably be

rendered irregular and incompetent.". In view of the Tanzania Knitwear, ·MIC Tanzania and Gervas · Mwakafwila cases discussed above I wish• to recap that while an omnibus~~- application which is composed of two or more-.unrelated application may be!,. struck out for being incompetent, an application comprising two or more!~ applications which are interrela_ted is allowable at law. For _these reasons, I would overrule the. firs point of. objection in the respondent's PO. I Would -th~refore entertain- both prayers of the applicant. I now turn to the second point which seeks to answer the question whether the applicant is entitled to the orders sought. 7 As rightly put by both learned counsel for the parties, the timeframe allotted to cases in the Commercial Division of the High Court within which-they must be finalized is, as per rule 32 (2) of the Rules; ten months and not more than twelve. The present case - Commercial Case No. 128 of 2014 - whose lifespan is sought to be extended, was filed in this court on 10.10.2014. It therefore ought to have been finalized, at most, by 09.i0.?015. Neither the·· plaintiff nor its counsel applied for extehsion of the fifespan as required by the law. The question which comes to the fore at this juncture, is: this being the case, is Commercial Case No. 128 of 2014 now i~competent and should thus be struck out as prayed by the respondent? I

have serious doubts. As good luck would have it, the question what should be done in case a speed track assigned to a case expires, is not a virgin territory in our jurisdiction. It has been traversed by this court pefore. The only_ problem is that there is, to the ~est of my kn()wl~dg~ 1 a d~arth of Court of Appeal decisions on the subjec~ or to put it. niort: correctly, in ~y rese~'.ch, I have not been able to lay my hands on any_ decisi<;m of the Court of Appeal which. falls in_ all fours with the present instance. Worse more, the High Cciurti Which bas some decisions on this point and ,on which decisions I could layrnyhands on,, Ts-divided. In Africa Medical Research Foundation (supra)), a case cited by the ;_:._:~:.;} ;:---.=..,.:-,_~,ace;,.~-; learned counsel for the applicant, my brother at the Bench, Dr. Twaib, J., seized with an identi'cal situation in respect of speed tracks under the CPC, dealt with this issue at some considerable length. His Lordship revisited a number of decisions of this court ·on the point and came up with three schools . . . of thought on the subject. However, of particular relevance to the- present case is an observation ·to the effect that the provisions. relating to speed 8 . tracks to not provide for striking out, or dismissing the suit which has outnvefd . _ its speed track. His Lordship observed: · "One thing is clear from· these

provisions [relating · to speed tracks under the CPC]: the law does not · empower the court to ·strike· out a suit on grounds that no application has been made by the party benefitting from sud1 amendment or departure. Neither is there anything that can be construed as requiring that there must be an application to that effect before the court qm move to order a .departure or amendment." As stated above, Aftic.,n Medical Research Foundation was discussing -.; __ - .. . . expiry of speed trac:k of cases u-nder· the CPC. - However, I have no speck of doubt -that the jurisprude_nce under the pro~isions respecting speed track under the CPC and those respecting lifespan in -the Rules, is the same. In - - . both instances, the timefrariles were put in place in order to expedite the hearing of cases in courts by :.fixjng tlmeframes within which they must be -finalized. I eotirely agree with the reasoning and conclusion ih Africa Medical Research Foundation. Rules of the Court are there to guide _courts in the dispensation of justice and not to defeat it. I find comfort on this proposition . - - in an English case of Re Coles Ravenshear Arbitration [1907] KB 1 wherein . Collins M.R. had this to say at. page 4: "Although I agree that a Court cannot conduct its_ business without a code of procedure, I think that 9 the· relation of rules of practice- to the work of justice is intended to

be that -of handmaid rather than mistress, and .the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what ·will cause _injustice in the particular case." In Tanzania, what was stated in Re Coles Ravenshear Arbitration (supra) has been codified in article 107A (2) (e). of the Constitution of the United Republic of Tanzania, 1977 (henceforth "the Constitution'') ,which urges the courts in this jurisdiction to dispense justice without being tied up with undue technical provisions, which may obstruct. dispensation of justice. It is my well considered view that, bearing in mind the peculiar nature of the case whose lifespan is sought to· be enlarged, . . this is a proper . case .in wllich the provisions of article 107A (2) (e) of the Constitution should be invited into play. And in the same line of argument in respect of scheduling conferences under the CPC, it was held in a Ugandan. case of Kigula and others Vs Attorney- . ... . . --·--:::.~1. General [2005] l EA 132 in the headnote thereof, as follows: - -~ "The purpose of a scheduling conference is to save time of the Court by sorting out points of agreement and disagreement so as to expedite disposal of cases. Like any other rules _of procedure, - it is· a·· handmaiden of justice not intended to be an obstacle in the path of

justice." While still on the same point, I wish to refer to an Indian decis_ion of Sush#"=: -· Rani Vs Attam. Parkash · (2007) .· .146-· PLR ·.•. 5,95 .. - .(available at~. http://indiankanoon.org/doc/401757 /) in which. Hemant, Gupta, ). had the~,_ following to say at paragraph 14 of the judgment delivered on 05.04.2007: . : . . . "Processual law is not to be a tyrant but . a servant, . . - not an obstruction but ar aid. to justice. Procedural prescriptions are the handmaid ar)_d not · the mistress, a lubricant,•. not a resistant in the administration of justice." And it may not be irrelevant to underscore what was stated by ·the Supreme · Court-of India in R. N. Jadi & Brothers -~ Subhashchandra, (2007) 9. Scale 202 (available at http:/lindi~nkanoon.org/doc/1461813/) in which the~- -.~ :·· · court considered the procedural law vis-:a-vis substantive law a·nd observed as: .·.· · under: '• "All the rules of procedure are the handmaid .of - . ' . .- . . - justice. The language employ~d by the draftsman . of processual law may be liberal or stringent, _but .. . - . . the fact remains that the object· of prescribing procedure is to advance the ca.use of justice. In an adversarial system, no party should ordinarily · be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions or'

CPC or any other procedural · enactment ought not to be construed in a manner 11 which would leave the court helpless to meet extraordinary situations in the ends of justice." In view of the foregoing discussion, it is a.bundantly clear that the procedure enumerated under rule 32 (3) of the Rules is but a handmaid and not a mistress, a lubricant, not a resistant. in the administration of justice. In the premises, the plaintiff cannot be· denied an opportunity of participating in the course of justice just because the lifespan within which his case ought to have been finalized-has expi~ed. On this conclusion, l feel irresistible to associate myself with the persuasivE:_ decision of the C()urt of Appeal of Kenya in OT Dobie Vs Joseph Mbaria Muchina & Another [1982] KLR 1 in which Madan, JA . in an obiter dicta observed at page 9 [quoted in Benja Properties-Limited Vs Savings And Loans_Kenya LimitedHigh·Co_urt at Nairobi (Mlimani Commercial Courts) Civil Case_ No. 173 of 2004 (available.at www.kenyalaw..org)] as fol_lows: - ' - "A court 0f:.justice should aim at sustaining a suit rather than terminating it by· swmmary dismissa'L Normally a law suit is for pursuing it". [Emphasis added]. In the same line of argument, to borrow the words of Madan., J., a court of justice should aim at sustaining a suit rather than striking it out on the ground that its lifespan within which it

should have been finalized has expired. In my considered vie~, what the court is supposed to do in such circumstances is to. allow a :party to apply its enlargement so that the suit ls prosecuted to its finality. In appropriate cases, the court· can even extend the lifespan suo motu. 12 · To recapitulate on this point, a party who fails to ·apply Jar enlargement of the -lifespan of the case within the time provided for- by rule 32 (3) of the Rules, should be allowed to apply out of time if he· so wishes. _The court should riot withhold· such permission unless there are strong reasons to do so. The test - should always be whether any injustice will be occasioned in taking that course. The provisions of rule 32 (2) which allows a party to apply for· extension of the lifespan ofthe suit upon giving sufficient re@son, intends to - accord.the pla,intiff time to prosecute his suit to its finality. In view of tJ1e above disc.ussion, t grant an application (or extension of time : . . for.. the applicant making.. ·.an application -for enlargement of the lifespan of . . . . Commercial Case No. 128 of 2014 under prayer (a) of. the Chamber Summons. The order sought under prayer (b) is also granted as well. The lifespan of Commercial Case No. 128 of 2014 is extended to tyvelve (12) .more months commencing from 10.10.2015; on ·which t!le lifespan of the case . _- im-~·nediately expired. The case ~hould proceed for hearin·g on· merits on a date · to be fixed today. -Order accordirigly. DATED at DAR ES SALAAM this 1st day of October, 2015. J. C. M. MWAMBEGELE

JUDGE 13