20151001 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA - - (COMMERCIAL DIVISION) AT DAR. ES SALAAM MISCELLANEOUSCOMMERCIAL CAUSE NO. 21 OF 2016 (Arising from Commercial Case No. 128 of 2014) RUVU GEMSTONE MINING CO. LIMITED ........................APPLICANT

VERSUS RELIANCE INSURANCE COMPANY (T) LTD .................. RESPONDENT 41h & 20th June 20, 2016

RULING MW AMBEGELE . 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. 128 of 2014 and 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 V an account of what transpired ln the proceedings from the partial settlement of the suit, the delay in filing the witness statements by the respondent, grant of an application for doing so by this court, to àdjournments and finally that the applicant has been diligently prosecuting the matter. The applicant cites several decisions to support his arguments. These are: Tanzania Knitwear' Ltd Vs Shamshu Esinail [1989] TLR 48 (H C), Africa Medical Research Foundation Vs Stephen EmmanUel & Others DSM Civil Case No. 17 of 2011

(unreported) and Electrics International Co. Ltd Vs Archplan International Ltd & 4 others, Civil Case No. 16 of 2003 (unreported). On the other hand, Mr. Jethro Turyamwesiga, learned counsel, for, the respondent, relying on the counter-affidavit of Adolf Runyoro, counters those 4 arguments on mainly two angles. First, that no reasons are given for delay to apply for extension of the lifespan of the suit but rather the reasons given are those for delay to determine the matter, that. no accoUnt ismade for the five months delay that is 'from September 2015. to February 2016 to file an application for extension ofthe life'span. Secondly, and in the nature of a preliminary point of law, that the application isomnibus and thus bad in law in that it contains two applications in one. He argues that in the light of Rutagatina C.L Vs the Advocates' Committee, Civil Application No. 98 of 2010 (unreported), it should be dismissed, and further that this being an 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 "FAILURE TO FILE REJOINDER SUBMISSIONS". Therein he blames and laments as having been denied a chance 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 and 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 application is omnibus because it is a two-in- one application; an application for extension of time to apply for enlargement of time within which Commercial Case No. 128 of 2014 should be finalized and an application for extension of time within which the case should be finalized. The learned counsel relies on the Rutagatina case (supra) and Jovin Mtitagwabá Vs.. Geita Gold Mining Ltd, Civil-Appeal No. 23 of 2014 (CAT unreported) for the.proposition that that course is not permissible. This issue was well -articulated by this court [Mapigano, J. (as he then was)] in Tanzania Knitweàr in 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 proceedings. Courts of law encourage the opposite." The above quote was affirmed by the Court of Appeal in MIC Tanzania Limited Vs Minister for Labour and Youth Development, Civil Appeal. No. 103 of 2004 (unreported). In that case, the Court of 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 injunction. . 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 mu/t10/icity of proceedings. Courts of law en courage the opposite. . 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. in However, that cannot be a hindiance to us in our endeavours to ensure that sUbstantive justice always prevails; After II, 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 faulted, and we are respectfully in agreement with i;iii [Bold supplied]. In the case at hand, the applicant has combined two applications in one: an application for, first, extension of time within which to apply to this court for enlargement of time of the lifespan of Commercial Case No. 128 of 2014 and secondly, for enlargement of the lifespan of the said case. I thinkthe course taken by the applicant is, in the light of the Tanzania Knitwear case, quite in order. In the circumstances of Tanzania wherethevision of the Judiciary is to administer justice effectively ; efficiently and timely, it will 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 to 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 v'iith 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 withan 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. 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, applications in those case were. found to be omnibus and consequently struck beca.use they combined two oh. more applicatiOns which were unrelated. For the avoidance of doubt, the MIC Tanzania case was an appeal from the decision of this court which entertained two interrelated applications. .. At this juncture, I find it irresistible' to quote the observation of my brother at the Bench-Dr. Ndika; J. in Gervas Mwakafwila & 5 Others Vs the: Registered Trustees of Moravian churcir in Southern Tanganyika,:' Land Case NO. 12 'of 2013 (unrepbrted),'wtieréin; faced with an

identicalL situation, discussed the seemingly. two dia'mtria'llyoposed positions of the'. Court of Appeal in MIC Tanzania and Rutagatina'cásés His Lordship held: "I ... find the reasoning in MIC Tanzania Limited V Minister for Labour. and Ythuth Development (supra) and Kn itwear Limited v' Shamshu Esmall (supra) highly persuasive. Compilation of several separate but interlinked •and interdependent 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 i5rovide justification for granting each and -:every prayer in the Chamber Summons. The fear thata single affidavit cannot legally and properly support more than one prayer. is over the top. On talance, an affidavit is not mystical or magical creature that cannot be crafted to fit the circumstances of a particular case. It is just a vessel through which evidence is presented in court. I must hasten to say, however 1 that I am aware of the possibility of an application being defeated for being omnibus especially where it contains prayers which are not interlinked or , intedependent. I think, where corribined prayers are apparently incompatible or discordant, the omnibus applicatioh may inevitably be rendered I irregujarand 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 morer applications which are interrelated is allowable at law. For these reasons, I would overrule the firs point of objection in the respondent's P0. I would therefore 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 09.10.2015. Neither the plaintiff nor its counsel applied for extension of the lifespan 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 incompetent 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 toa case.expires, is not a virgin territory in our jurisdiction. It has been traversed by this court before. The only problem is that there is, to the best of my knowledge, a dearth of Court of Appeal decisions on the subject or to put it more correctly, in my research, I have not been able to lay my hands on any decision of the Court of Appeal which falls in all fours with the present instance. Worse more; the iHigh'COLirt, which has sorné decisions on this point andon which decisions 'I could lay my hands on, 'is divided. In Africa Medical Research Foundation (supra)), a case cited by the learned counsel fOr the applicant, my brother at the Bench, Dr. Twaib, J., seized with an identical situation in respect of speed' tracks under the CPC, dealt with this issue at some considerable length. His Lordship revisited a number of decisidns 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 tracks to not provide for striking out or dismissing the suit which has outlivefd its speed track. His Lordship observed: "One thing is clear from these provisions [relating to speed tracks under the çPC]: 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 such 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 can move to order a departure or amendment." As stated above, Africa Medical Research Foundation wa's discussing expiry of speed track of cases under the' CPC. However, I have no speck' of doubt that the jurisprudence under the provisions respecting speed track under the CPC and.those respecting lifespan in the Rules, is the'sarne. In. both instances, the timefrarnes were put in .plãce in order to expedite the hearing of cases in courts by fixing tirneframes.within which they must be finalized. I entirely agree with the reasoning and condusion in 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 Co/es 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 the relation of rules of practice to the work of justice isintended to be that of handmaid rather E. than mistress, and the Court ought not "to be so far bound and tied by rules, which are after all only intended as .generál'rulesof'procedure, as to be compelled to do what will

cause injustice in the particular case." In Tanzania, what was stated in Re Co/es Ravenshear Arbitration (supra) has been codified in article. 107A' (2) (e) :f 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 óse whose lifespan is sought to be enlarged, this is a proper case in which the provisions S of article 107A (2) (e) of the Constitution shouki be invited into play. And in the same line of a'rgumeht in respect of scheduling conferences under the CPC, it was'held in a Ugandahcase of Kigu/a and others Vs Attorney- General [2005] 1 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." 10 While stiH on the same point, I . wish to refer to an Indian decision of Sushit Rani Vs Attain ParkasI, (2007) 146 PLR 595 (avaHable at: http:I/indiankanoon.orgIdocI401757/) in which Hemant Gupta, J had the following to say at

paragraph 14of the judgment delivered on 05.04.2007: "Processual law is not to be a tyrant bUt a servant, not an obst;ruction but an aid to justice. Procedural prescriptions are the handthaid and not the mistress, a lubricant, not. a resistant in the administration of justice." And it may not be irrelevant to underscore what was stated bythe Supreme Court of India in R. N. Jadi & Brothers V. Subhashchandra, (2007) 9 Scale 202 (available at h LL[adJnkanoon.orLdoc/1461813/) in which the .. court considered the procedural law v,s-a-vis substantive law and observed as under 'All the rules of procedure are the handmaid of justice The language employed by the draftsman o'i processual law may be liberal or stringent, but the fact remains that the •ôbjeèt of recribin procedure is to .advance the cause of jusice. In an adversarial system, noparty should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific. laflguage of the statute; the provisions of CPC or any other proce.djral enactment ought not to be construed ma 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 abundantly 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 expired. On this conclusion, I feel irresistible to associate myself with the persuasive decision of the Court Of. Appeal of Kenya in DT Dobie Vs Joseph Mbaria Muchina & Ahother [1982] KLR 1 in which V Madan, JA in an obiter dicta observed at page 9 [quoted in Benja Properties Limited Vs SavingsAhd..LoansKenya Limited High Court at . ... Nairobi (Mhmani Commercial COurts) .Civil Case No. 173 of 2004 (available -at V www.kenyalaw.org )] as fbJloWs: "A court of j-ustice shbud i* t sustaiing a suit rather than terminating it..by summary , dismissal. NorrnaUy.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 view, what the court is supposed to do in such circumstances is to allow a party to apply . its enlargement so that the suit is 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 failsto apply for 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 not 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 of the suit upon giving sufficient reason, intends to accord the plaintiff time to prosecute his suit to its finality. ' In view of the above discussion, I '.grant an application for 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 twelve (12) more months commencing from 10 10 2015, on which the lifespan of the case immediately expired. The case should proceed for hearing on merits on a date to be fixed today. Order accordingly.: DATED at DAft ES SALAAM this 1st day Of OctOber, 2015. 13