19990218 TZHC Tabora

IN_,,.....T.HB. HIGH COURT OF TANZANIA __.-· .. •"' _ AT TAB"ffiA )'1rsc1<.::LLANEOUS CIVIL APPLICATION NO. 21 OF 1995 (Originating from District Court ~hinyanga Civil Case N~. 105/92) .TANZANIA RAIIJ✓JAYS CORPORATION oo ... ·• 0 •• APPLIC,:.NT VERSUS S'1'1'.R SERVICE STATION · COc, Ltdc •• •• R U L I N G This i~ an application for extend.on of time within which to appeal to this Courto The applicants, the T8;1Za1:,~a J~~lways Cor_poration, .were i sued ~y ~ne tesponden~s /?,tar Se,,.rv;,t-03J~.-~a~ion' Co .. Ltd. for some damages i. arising ~t ·of a train accident~ It is said the _applicants were I transporting fuel belonging to the respondentso The train overturned and spf!J.ed all the fuel 0 : 1, The reSJlondents never responded to the claims made in the District Court of Shinyanga6 So~ judgment was entered aga,~t them expartq,.. that Jµdgment was entered exparte on 18/8/93::i J'!: was, however~ twp years later, when the respondents were executing the judgment of· the· Court, that the Railways ''woke 11 up and · ,' • f 1 • I I . . I . . • filed \ .aµ app);iostiqn : : ... for extension of timeo . , I should point out that, actually, twi app)ications for extension of time within which to file 1· . 1' an appeal l:}.ave com~ out ~n the p.__s_!_,9!'.Jf. of the case. Mr. !'fJahuma, leam;ted. advocate for the applicants implored this CoJ.rt to allow·them:to -~ppeal out ef time. The affi~avit filed by Mr. Makunja, The Corpor~tion Counsel of th~ applie:mts dep©t:1;:s, 1 ·'· ' ' among ~ther things, that: ' \ 0 The applicant I s lawyers· t-t/S Tanzania Legal '\ Corporation made enquiries to the .said ~urt ' ' ' in•; Shinyanga by ~1;1il with no response from th~ i j 2 Mr'. Mtaki, for the respondent, ·has submitted that the applicants have been :m indolcrnt . .. ,,_,_ _:~ --' ....... ~·--~--·-·' negligent, that the Court should so inadvertent throw .~!!?JL their applicationo I have persued the re~0rd. I J.w.ve also perused the affidavit. The cnse smacks of pure negligence on part of both the advocates for the applicants end the applicants themselves. Tanza..'1ia Railways are a big institution in the Country. Everybody knows that they have a legal department at their Hendqu3.Eters& Two yeaxs of inaction on pnrt of the applicnnt really becomes intolerable 0 It is worse when you consider this other fo.ct.or: '];'his is the seo:md applictrtion on reo:)rd filed for - extension of tim~ within which t6hppeal to this Court:11 That is to· say, they m-0 riot even serious to .:-.ppaiapplico.tions they f~le• I'1r'. Mtaki submitted th.'lh in any case, if the app),.icants discovered that the district Court had· entered judgment against them expo.rte, the sensible thing they would have dcne was to go bnck to the District Court nnd ask to set aside the judgt~ent given expnrte. This, they did not do~ The inw is quite clear on the subject, in any caseo Before a Court of law r.tJ.lows sue~ an appli?,:ition, to set aside an expo.rte judement, i:t must be satisfied that there wc.s 11 sufficient Cause11 for th.:i non-appearai.10~ 0 Inadvertence or lllteness. in getting a ---------- ! ~ copy, whE?re., with due dilig~nce the copy woµ;t.d lw.ve been obtained em-ly, or pure negligence, - these have not been held to be ' 1sufficient causea1' for setting aside exparte Q!Udgmentso Fortunately we hnve a chain of authorities t;o demonstrate what I h:."1.ve suid aboveo See for exc.mple: lo Wc.tson.Sc&ffold • • •··• • , ·• " ,., &• ePoultry - . ·• . , Coo v: __ .., ~nnali • * -- ..........,_ i , I , . . . I . ~j.i__.~"Ff [)'.967.JHoC~.D~ 560 •. \: . t . I I,.;/ ot 2• §.~Xl. .'!'.e_t er~ A~rul!b~:U?~~le. Y!!.Ll}!}.df:e:< 2.?!'.!:~ {i962..] ~o[lo 694e ' t 3. . ~---~.J.&,..- . •: Shubir Din v: Ram:Parkc.sh Anand 22 Z!)AoCeAo ·r-,,- . 48, nt page 50. . ·- • 3 Kimnni v: Mac Connell nt page 555 (Hnrris Jo) 1974 LRT n., J2. 6.,. ...Shah - ·-· - .. v: Mbogo r1967_7 ...,.. - E.Ao 116 where, partioa-L.'U'ly, it is said: •iThe Court's discretion to set aside a judgment obtained exparte is intended to exercise to avoid i ~ \ ~ rssulting from accident, inadvertence or excusable mistake or error h1.t is not designed to assist a pnrson who has deliberately.sought, whether by evasion or otherwiseito obstruct 9r delay the course of. justice1i o In short, the applicants are themselves to blame for the predicament in which they find themselves., Indeed, lnck of vigilance· in· p_ersu:µig Civil Cases can have devas·tating effects: See, now, the. value of the money awqrded them (1993) has gone down., · Courts do take into the oonsiderati~n devaluating effect ofshillingo · This app.licdion, for extension of time within which to appeal to \ this Court, is refused., It is refused with costs., c-•-•·--.,.. 1· .. I /, \J ·7·· I ,..------- : 1/ -------'· __;.---- ' ~ · MASANCHE JUDGE AT TABORA. 18th February, 1999. PARTIES: -Absent.