tanzania spring industies autoparts limited and essen investiment limited 1995 tzca 57 23 june 1995

IN THE COURT OF APPEAL OF TANZANIA AT DAS ES CATAAT. (CORA:.: RATADHANI, J.A. „ IINZAVAS, J.A. , M d MPALILA, J.A. ) CIVIL APPEAL NO. 47 CP 1994 E2XP-7SEET TANZANIA SPRING INDUSTRIES AUTOPARTS LILI'DSD ......___ ...... APPELLANT AMD ESSEN INVESTMENT LIEITED '....... RESPONDENT (Appeal from the Ruling and Decree of the High Court of Tanzania at Dar es Salaam) (i.aoikanja, J ») dated the 28th day of June, 1994 in '£ isc. Civi-1. Cause No. 150 of 1993 JUDGMENT OP THE COURT RAATHANI, J.A.: This is an appeal against the ruling of the High Court of Tanzania at Dar es Salaam (IIACICANJA, J.) refusing the appellant, Tanzania Spring Industries Auto­ parts Ltd., extension of tiiie to file a counter-affidavit in rise. Civil Application No. 150 of 1993* In that application, the present respondent, Essen Investment Ltd., is the applicant and the present- appellant is the third respondent. Thus there are two other respondents. Those two other respondents filed together a preliminary objection by way of a counter­ affidavit to the affidavit of the applicant. The present appellant had not been served with a copy of that counter­ affidavit and has not filed his counter-affidavit. r 0 , on 1 2 /5 /1 ' AC.- A Z J A , J . ^ava th e f o l l o w i n g 3rd respondent "be served with COU21£J6.*?— vl2*v*'---o♦ 3rd fespondent to file his ccamter- affidavit by 1st June, 199-1-. Hearing on 24th Jime, ■1 IC _>CJ/i •:i Cn 26/6/1994 '.r. Aanabar, learned counsel, held . \y the "brief for " r. Ckiadoo, learned advocate for the third respondent, that is, the appellant. fhe counter- affidavit o:L" the appellant had not jet been filed. :/r* .fanabar, fro/' th-3 oar, inf or ed the Court that ,r. Chandoo had ;.one to the for treat:-ent and that he had returned the previous day. He also told the Court that they had "been served with a copy of the countei'-affidavit of the first and the second respondents just the previous day* "Vr. faaabar asAed for extension of tiae within which to file a coater-affidavit. That prayer was opposed by ■'"r. Aalxmy?,, learaed ooiv-isel for the applicant, that is, the present respondent. AACAX7JA, J . ,_,ave his iulin^ refusin^ extension of tiw.e on 2G/S/19S4 and r. Chandoo ashed for and was .^iven leave to appeal. :r* Chandoo appeared before us in this appeal with a :.e:: orandu- of appeal containing eiyht ^rounds of appeal. Ee also presented a written submission in which he elaborately ar jued those grounds of appeal. It is our 3 considered opinion that 'the eighth ground alone is sufficient to dispose ox this appeal. So, we shall not touch on the other seven grounds. In that ground "!jr. Chandoo contended that the learned judge erred in not using his discretion to extend tjue m t h i n which the appellant had to file his counter­ affidavit. 7Ir. Kalunja, learned counsel for the respondent, argued that it was correct that the discretion was not exercised. He pointed out that on 12/5/34 the appellant was given tii.e to file his counter-affidavit on 1/6/34* As the appellant failed to do that then fror. 1/6/34 to the date set for the hearing he should have applied for extension of tine and that he should not have waited to do so on the day of the hearing* Ordinarily we would agree with Ealunga that the appellant ought to have nade an application for extension of tiiie before the, date set for the hearing* But we are convinced that the situation obtained here is otit of the ordinary. The learned judge ; .lade this finding in his ruling rejecting extension of tine: "I aia per.Tua.ded, however, that Hr. Chandoo went abroad for treatraent and that Ur. Eanabar received hi;-, at the Airport when he returned in the country a day before these submissions were made.1' 4 Elsewhere the learned judge observed: !,I would say that there night he evidence to establish that the journey was an emergency and that he could not have had tixie to advise M s clients to seek other legal coins el to do what he was supposed to do.:' Tut then, the iea.med judge posed a question: . was Ur. Chandoo's trip to the United Kingdon sufficient ground for his failure to coriply with a court order?!1 The answer to that question would appear to he this: "If the courts are to dispense justice with a sense of duty, it will be luifair to the lit!rants if in so doing the courts are fettered by the convenience of advocates." The learned judge then refused to extend tiae because that would be accoirio&atinj :'the convenience” of Ilr. Chandoo. / ilow, if the learned judge was persuaded that :’l.Tr, Chandoo went abroad for treatiient11 and if he formed the opinion that the re night be evidence to establish 5 that the journey was an e:_-.er£ency!', we aol: whether that is convenience or necessity. An esier^ency trip to London for treat; \e:.it is an absolute necessity and accoiEiodatinj that is not fettering the dispensation of justice with a sense of duty:1 “by the courts. ''e are at one v;ith the learned jud^e1s a/jreenent with the passage he quoted fro;i the judjLient of Lord Guest in ilatuan v. Cv: .arasaiiy And Another 3 All 121 S33 at 335* However, we wish to emphasize two things which Lord Guest ’The rules of court nust prii-a facie he obeyed and in order to justify ext ending the ti*-ie during which oone step in procedure requires to he taL'en there rust be so;,e naterial on which the court can exercise j-C3 Gj.SC..'G •c* (emphasis is oura). If the rules :::'aist prina facie he obeyed, " it raeans then, that there are occasions when there will he departure fro:', the rules. Those instances vn.ll depend on the existence of :!coi\e material on which the court can. exercise its discretion1. Had the learned jud.je f o m e d the opinion that an euerjency trip abroad for treatment is not a convenience, hut is a sheer necessity, he would have found that to he soi^e material on which to use his discretion. 6 "Ts therefore ell on the appeal. 7e extend tiue and order the appellcu.it to file his covjiter-affidavit to the affidavit of the respondent in this appeal, r/ithin fourteen days fro-the date of this jud^ent. Costs to foil07/ the event. DAT HD AT DA2 ES 3AXAAJ.: .THIS 23KD DAY OF JUIIE, 1SS5. A. .3 .It. RA AiDHiATI JUSTICE 01? APPEAL ..; • r V.r~Jr?a*TA^ !«J » i.. JUSTICE OP ..JPP5AI' ,'j. i. . l.uB’iiAii-bA JUSTICE OP APPEAL I certify that this is a true copy of the original. : 'A i ( a . 3. ska:jsAi.i ) DEPUTY AEGISTRAP