STD CALL LTD VS BARCLAYS BANK T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM. MISCELLANEOUS COMMERCIAL APPLICATION NO. 174 OF 2018 (Arising from Commercial case No 69 of 2016) STD CALL LIMITED........................................................ APPLICANT VERSUS BARCLAYS BANK TANZANIA LIMITED.........................RESPONDENT RULING B.K. PHILLIP, J. By way of chamber summons made under section 14(1) of the law of Limitation, Cap 89 and section 95 of the Civil Procedure code Cap 33 R.E 2002 (henceforth 'the CPC'), the applicant prays before this court for an order for extension of time to file an application to set aside the dismissal order of Commercial Case No 69 of 2016 delivered by Hon Songoro, J as he then was. The chamber summons is supported by an affidavit sworn by the applicant's Advocate Ms. Lucy Kiangi. In her affidavit in support of the chamber summons the learned advocate states that the said Commercial case No 69 of 2017 was dismissed on 22nd of May 2017 due her failure to appear in court when the case was called for 1st Pre Trial Conference. That she did not appear in court on 22nd May 2017 because she was sick. She i attached a copy of the medical discharge card. She states further that on 19th July 2017 she requested to be supplied with a copy of the dismissal order and the same was supplied to her on 22nd September 2017.On 11th October 2017 she filed Miscellaneous Commercial Application No 318 of 2017 for extension of time to set aside the dismissal order and the same was struck out by the Court on 13th day of June 2018 on ground that it was an omnibus application. Furthermore, it is stated in the affidavit that on 14th June 2018, the applicants advocate wrote a letter requesting to be supplied with the copy of the ruling and the same was supplied to her on 11th July 2018.Copies of the letter dated 14th June 2017 and the ruling for dismissal of application no 318 of 2017 are attached to this application. The respondent filed a Counter Affidavit sworn by the learned Advocate Maryam Semlangwa opposing the application. It is stated in the counter affidavit that the applicant's Law Firm is made up of several advocates, hence, any of the advocates in the firm could have entered appearance in court on the day the application was called for 1st Pre Trial Conference. The medical discharge card attached to the application was also challenged for being not the proper document to prove the alleged sickness, rather the medical sheet was the one that was supposed to be attached as exhibit not the discharge card. Furthermore, it is stated in the counter affidavit that the applicant has failed to substantiate the prayers made in the chamber summons as no reason for the delay in filing the application is adduced, instead the affidavit in support of this application is centered on the reasons for non- appearance in court on 22nd May, 2017 while the instant application is for extension of time. 2 This application was ordered to be disposed of by way of written submission. In her submission the applicant's advocate Ms. Lucy Kiangi argued that she has adduced sufficient reasons for the delay in filing the application for setting aside the dismissal order. She referred this court to the case of Daudi Haga Vrs Jenitha Abdon Machafu, Civil Reference No 1 of 200( unreported) in which the court held that in order for extension of time to be granted, reasons accounting for the delay have to be adduced. In addition to the above mentioned case, the applicant referred this court to the case of Andrew Wiston Kalela Ndimbo and another Vrs Suleman Mohamed Khamis and another ,Misc Commercial cause No.70 of 2013, (unreported) in which the court exercised its discretion and granted the application for extension of time. The applicant submitted that if this application is not granted the applicant will not have no opportunity to apply for setting aside of the dismissal order. She referred this court to the case of Castellow Vrs Somerset country Council (1983) 1ALLE.R 952, to buttress her argument. She prayed for the application to be allowed. Replying to the applicant's submission, the respondent's advocate submitted that an application for extension of time is granted at the court's discretion and it i s a trite law that the applicant has to establish that the delay was for sufficient cause. She referred this court to the case of Benedict Mumello Vrs Bank of Tanzania, Civil Appeal No. 12 of 2002 (unreported), in which the Court of Appeal of Tanzania said that extension of time is entirely in the discretion of the court and the same can 3 be granted upon sufficient cause for the delay is established. On what is sufficient cause the respondent's advocate referred this court to a case of Meis Industries Limited and others vrs Twiga Bankcorp, Miscellaneous Commercial cause No. 243 of 2013, (unreported) in which this court speaking through Mwambegele, J. said that what constitutes reasonable or sufficient cause has not been established under the section because that being a matter for the court's discretion cannot be laid down by any hard and fast rules but to be determined by reference to all the circumstances of each particular case. The respondent's advocate contended that the applicant has failed to adduce the reasons for the delay in bringing the application for setting aside the dismissal order within the time prescribed by the law, instead she has adduced reasons for the non appearance in court when commercial case no 69 of 2016 was called for the First Pre trial conference. The respondent's advocate contended that the issue of sickness is immaterial as far as the instant application is concerned, such a reason is material for setting aside the dismissal order. The respondent's advocate submitted further that there is no any legal requirement for attaching a copy of the drawn order for the dismissal of the case in an application for setting as the same, hence the allegation that the applicant was making a follow up to obtain the drawn order for the dismissal of t he case does not constitute a sufficient cause for the delay. In her analysis of the sequence of events in this matter the respondent's advocate submitted that, Commercial case No 69 of 2016 was dismissed on 4 22nd May 2017 and Misc Commercial application no 318 of 2017 was filed on 4th October 2017, where by 4 months had passed after expiry of the time prescribed by the law for setting aside a dismissal order . The letter for the request to be supplied with the court order was written on 19th July 2017, that is a month and a week had passed after expiry of the time for setting aside the dismissal order. The respondent's advocate argued further that, Misc Commercial application no 318 of 2017 that was filed as the first attempt by the applicant's advocate to set aside the dismissal order was struck out on 13th June 2018 and the application at hand was filled on 25th July 2018, that is a month and a week after the application was strike out. The respondent's advocate was of the view that there is an element of negligence on part of the applicant. The applicant has failed to account for each and every delay in this matter. The learned advocate referred this court to the case of Meis Industries ( Supra) to buttress her argument, and quoted part of the findings of this court whereby Mwambegele, J. said that this court has discretion to extend time under section 14 of the law of Limitation Act, Cap 89 but such discretion can only be exercised if sufficient reasons have been given by the applicant and that only sufficient cause for the delay and not sympathy will make an application of this nature succeed. The respondent's advocate invited this court not to have sympathy on the applicant but dismiss this application since according to her view the applicant has failed to adduce sufficient reason for the delay. 5 Having analyzed the submissions made by the learned advocates and court records, I have noted that this application is a second attempt by the applicant's advocate to set aside the dismissal order of this court in respect of Commercial case No.69 of 2016.AS have been submitted by the learned advocates appearing in this application, the order sought in this application is among the orders that are granted under the discretion of this court upon sufficient reasons being adduced by the applicant. There is no any scintilla of doubts on the relevance of the authorities referred to this court by both counsels as far as the exercise of discretional powers of this court is concerned. It is the task of this court therefore to test the facts and series of events in this application against the authorities referred to this court by the advocates and the statutory laws. The major reason adduced by the applicant's advocate behind the delay in making the application to set aside the dismissal order, within 14 days from the date of the order as provided in Rule 31 (2) of the High Court (Commercial Division) Procedure Rules,2012 is that she was waiting to be supplied with a copy of the dismissal order which was supplied to her on 11th July 2018. In her affidavit and submission, the applicant's advocate has alleged that she was sick, but, as correctly submitted by the respondent's advocate, in the instant application the issue of sickness is irrelevant. The letter requesting to be supplied with the dismissal order was lodged in court on 14th June 2018. There are no explanations given as to why the letter for a request to be supplied with the copy of the dismissal order took more than three weeks to be lodged in court, leaving alone the 6 pertinent legal issue that there is no legal requirement to attach the ruling or drawn order in application to set aside a dismissal order. Reading Section 14 (1) of the Law of Limitation Act, Cap 89 under which this application is preferred to, it i s evident that the applicant was not supposed to waste time waiting for the copy of the dismissal order. However, as I have mentioned herein above even if the dismissal order would be required, no explanations have been offered for a such a long delay in requesting for the same. It has to be noted that everybody is presumed to know the law, thus the maxim 'ignorance of the law is not a defence'and the level of responsibility to an advocate remains at a higher level as far as the issue of knowing the laws is concerned. I think it i s worth mentioning here that l ack of diligence on part of the counsel can never constitute a sufficient cause for failure to take the appropriate legal steps. (see Umoja Garage Vs National bank of Commerce,(1997) T.L.R.9) Coming back to the instant application which to my opinion cannot be a solely relied upon to determine whether there are sufficient reasons to grant the extension of time sought, for one basic reason that it i s just a continuation of the applicant's effort to set aside the dismissal order, therefore the reasons for the delay should be established from the first application. I have again noted that on 11th July 2018 the applicant was supplied with the ruling of this court in which Misc. Application No. 318 of 2017 that was struck out. This application was filed in court on 25th July 2018, therefore, it took the applicant two weeks from the date she was 7 supplied with the ruling to file the instant application. Again, no any explanations have been offered by the applicant for the 14 days that lapsed before the instant application was filed. Under the circumstances I am inclined to agree with the respondent's advocate that the applicant ' s advocate has failed to demonstrate the required diligence in handling this matter in particular taking the required legal steps promptly as the law requires. As I have pointed out herein above there are series of delays in taking the necessary legal steps from the first application (Misc. Commercial Case No 318 of 2017) to the instant application which the applicant's advocate has completely failed to account for. As correctly submitted by the advocates appearing in this application as well as revealed in the case law referred to this court, there is no hard and fast rule on the sufficient cause that can be accepted by the court, that i s why it has been said in several cases that sufficient reasons depends on the circumstances of each case, however the court's discretional powers has to be exercised judiciously. At this juncture I would like to associate myself with the finding of this court in the case of Isabella John Vrs Silverster Magembe Cheyo and three others, Commercial Case No 49 of 2003, in which this court said; Principles for the exercise of discretionary powers of the court , are now well established. Such powers must be used justly (see Berry Vs British Transport Commission( 1962) lQB 306. It must be exercised according to the rules of reasons and justices, not according to private opinion humour. It must not be exercised 8 within the limit to which an honest man competent to the discharge of' his office ought to confine himself'. I have dispassionately analyzed the facts surrounding the instant application and from the foregoing it i s my firm opinion that the applicant has failed to adducesufficient cause for the delay in filing the application to set aside the dismissal order, therefore I cannot i nvoke the discretional powers of this court to grant the order sought i n this application. In the upshot, this application is dismissed with costs. 9