20150625 TZHC Arusha3

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION NO. 100 OF 2015 (Originating from Misc. Civil Appeal No. 27/2008 originating from RM's Court Arusha Civil Case ~/2004) ; I SCANIA TANZANIA LIMITED ......... ~ ................ ~ ............... APPLICANT I Versus SAHIB BUS SERVICES LIMITED .................................. RESPONDENT Date of last Order: 05/06/2015 Date of Ruling: 25/06/2015 RULING MASSENGI, J -The Applicant named, under certificate of urgency filed a Chamber Summons made under the provisions of section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 R.E 2002; applying for the following orders; 1. That, this court be pleased to grant an extension of time to file a notice of intention to appeal to the Court of 'Appeal of Tanzania against Judgment and Decree of the High Court of Tanzania at Arusha Misc. Civil Appeal N. 27/2008 dated 15th September, 2014. I 2. Costs of this Application to be borne by the Respondent. I I This application is supported by the Affidavit of ELIYA JONAS KWIGEZA, the Principal Officer of the Applicant's office~ In the hearing of this application, the Applicant was represented by Mr. Yoyo learned counsel i J while the respondent acted through the service of Mr. Mghwai learned counsel and this application was argued orally. Submitting on the application, learned counsel for the Applicant stated that, it is a common knowledge and settled rule of practice that the discretional powers that are conferred to this court to extend time can only be invoked where there are sufficient reasons and satisfactory evidence upon which the court can rely upon in exercising its discretional powers. He. argued that in the present application there are sufficient reasons and satisfactory evidence upon which this court can rely on; the major reason which caused the delay in filing this application in time is management challenges of the directors of the Company which emanates from the death of mother of the Managing director of the company. Explaining the management challenges he contended that the time in which the Applicant was supposed to file notice in time on 15th September, 2014 to 14th October, 2014 which is exactly the time which the Managing director was completely out of his office, he was abroad taking care the sickness of his dead mother. The only officer in charge of legal issues of the company one Joseph Kayuza had already resigned and is out of office. The absence of these two persons led communication breakdown with the lawyer one D'souza consequently D'souza was not paid money and he withdrew the instructions without informing the company. He further submitted that the Managing Director came to settle sometimes in April only to find the time for filing this matter had lapsed. He annexed the death certificate to this application to prove death of Managing Director's mother and the resignation letter to prove that there 2 • ..; was a vacuum within the management. He urged this court to consider the reasons stated above and invoke its discretionary powers to extend the time for filling a notice to appeal to the Court of Appeal for interests of the ' substantive justice to the Applicant. In opposing the application, Mr. Mghwai learned counsel submitted that the Applicant is a registered company which acts through its employees and officers. It is not a natural person who can act alone; thus the submission of the Applicant's counsel that the Applicant could not file the application due to the travel of the Managing Director is devoid of I merits. He further contended that the submissions of the Applicant's counsel signify that the Managing Director was acting like a tortuous that he was carrying his company wherever he went and the company could not operate at all during his absence. He contended that in law a company is a separate and distinct legal entity which is capable of acting through its officers or employees and more enough since the company was represented by Advocate; during the absei:,ce of the Managing Director, the Advocate could continue to take care, of the matter until return of the Managing Director. As such he contended that the reasons for delay are not sufficient. Learned counsel for the respondent further challenged the death affidavit that the same is written in foreign language which is unknown to the court as such it cannot have evidential value since it was required to be translated into English language by the foreign service of the embassy of the country which issued it and duly certified. He also stated that the reply i 3, i ' ] was filed without the leave of the court as affidavit is a sworn evidence and not a pleading hence the applicant ought to seek leave of the court so as to file it. Therefore he contended that the Applicant's reasons for the delay are not sufficient and the same cannot justify ·this court to exercise its discretionary powers of extending time. ,Thus, he prayed this court to dismiss the application with- costs. In rejoinder, the Applicant's counsel contended that the respondent's argument that the company could have acted through. other employee is ineffectual as a specific company is guided by Board of Directors and duties of directors are according to the article of association which prescribes specific duties which require an individua'I. He contended that the issue of payment of a lawyer and appointing of another in charge of legal issue were specific duties of the Managing Director. In regard to the issue of reply of counter affidavit he contended that the respondent's counsel has not cited any law which requires to file a counter affidavit with the permission of the court and on other points maintained what was stated in the Affidavit and the submissions in chief. He thus contended that failure of the Applicant to take necessary steps was not based on laxity of the Applicant but it was due to humanitarian problems. As such he prayed this application be granted for interests of justice. I have considered the submissions from both learned counsels. It is undisputed from both parties that, this court has discretionary powers to extend time after lapse of the prescribed limitation period. It is also certain in law that the discretionary powers to extend time may only be exercised 4. I if the Applicant has shown sufficient cause or reason for such delay as stated in the case of ALEX MAKENE VS. THE HON. ATTORNEY GENERAL & ANOTHER, CIVIL APPLICATION NO. 73 OF 2007 (CAT at Dar es Salaam) unreported, that; ''It is a common knowledge that in order for the court to exercise its discretionary power in extending time, the rules requires sufficient reason for the delay to be shown. // See also the case of PAUL MARTIN VS .. BERTHA ANDERSON, AR CIVIL APPLICATION NO. 7 OF 2005, CAT at Arusha, (unreported). Considering that position of the law, now the issue before this court is to consider whether the Applicant has shown sufficient reasons to justify his delay to file the notice of intention to appeal to the Court of Appeal within time. Having gone through the Affidavit sworn by ELIYA JONAS KWIGEZA, who is the Principal Officer of the Applicant's Company; the main reasons for the delay are contained under paragraphs 5, 6 and 7 of the Affidavit, · which states that:- 5. ''Among other things, the Managing Director for the Applicant one ANDERS FRIBERD was tormented by serious domestic problem rendering him out of her scheduled duties for almost five months as from July last year, he was taking care of his parent who eventually passed away sometimes in March this year. 6. As if that was not enough, there were some reshuffles of the managerial positions as from September last year, to wit the Applicant underwent some stand still in its 5 I' J operations in particular✓ the officer entrusted with legal affairs one JOSEPH KA YUZA resigned and consequently there was a vacuum of time that past before being replaced. 7. Above all the applicant herein had a communication breakdown with her legal counsel D'SOUZA who reasons best known to himself withdrew himself from representing the Applicant without updating the Applicant on the progress of the case hence the delay. " Basing on the paragraphs of the affividavit as referred above; I don't dispute on the issue of sickness and death of the mother of the Applicant's Managing Director; but be as it may, I am not convinced that the absence of the Managing Director from the office caused the Applicant's failure to file notice of appeal within time, because the Applicant is Limited Company. Hence even if the Managing Director encountered family problems there is other officials who have acted during the absence of the . Managing Director. It doesn't come in mind that the Company has only two persons that is the Managing Director and his colleague who resigned. Besides that, as I am aware since the Applicant is_ a Company it has the Board of Directors who could pass a resolution including authorization of fund in order to pay the lawyer who could have acted on behalf of the Company. Having gone through the reasons contained in the affidavit and documents in support of them, I therefore find that the Applicant has failed to show sufficient reasons· in order to justify the grant of this application. Basing on that, I therefore dismiss this application with costs. 6' a ' ! ,... I Order accordingly. F.H. MASSENGI JUDGE 25/06/201S Ruling deliv_ered in Court this 25th day of June, 2015 in the presence ....~.~Y.}.~.Wa···~~.\~.S%.~~~cl ..\.~ ........ . ..~Y,.;~.~.#-•~····'O?:s@.-2.½~~--: .................................. . a. I I I ... I I I Ill ■ 1 1 1 I I I I I I I 1 1 1 1 I 11 I I I I 1 1 1 I I I 1 1 1 1 I I ■ I ■ I I 11 I I I 1 1 1 1 1 ■ II 11 I I I I I I I I I I 11 I I I I I I I I I I 1 1 1 I I ■■ 11 I I I I I I I 11 ~-> F.H. MASSENGI JUDGE 25/06/2015