TARIME GOODWILL VS LIQUIDATOR MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA MISCELLANEOUS COMMERCIAL APPLICATION NO 7 OF 2018 (Arising from Commercial case No 12 o f 2012) TARIME GOODWILL FOUNDATION HEALTH SERVICES HURUMIA WATOTO........................ APPLICANT VERSUS LIQUIDATOR PROSPERITY LIFE CARE INSURANCE TANZANIA ........................... RESPONDENT RULING B.K. PHILLIP, J. The applicant herein has lodged an application in this court under the provisions of Section 14 (1) of the Law of Limitation Act, Cap 89 R.E 2002 and Rule 43(2) of the High Court (Commercial Division) Procedure Rules, 2012, praying for the following orders; i. That this Honourable Court be pleased to grant the applicant extension o f time within which to file an application to set aside an ex-parte dismissal order dated 2 4 h April 2018 vide Commercial Case No 12 o f 2012. i ii. That, upon granting the applicant the extension o f time, this honourable court be pleased to restore Commercial Case No 12 o f 2012, for defence hearing to proceed and/or for deliver of judgement. Hi. Costs be provided for. iv. Any other relief this Honourable Court may deem fit to grant. The application is supported by the affidavit of Advocate Mashaka Fadhili Tuguta while, a counter affidavit sworn by the learned Advocate Sylivatus Sylivanus Mayenga has been filed in opposition to the application. At the hearing of this application the learned Advocates Mashaka Fadhili Tuguta and Sylivatus Mayenga appeared for the applicant and respondent respectively. A brief background to this application is that this application emanates from Civil case No 12 of 2012, that was dismissed on 24th April 2018 under Order IX Rule 8 of the Civil Procedure Code, Cap 33 R.E 2002 (henceforth 'CPC') for non-appearance of the plaintiff's advocate in Court on that date when the matter was scheduled for defence hearing. The applicant/ Plaintiff did not file the application to set aside the dismissal order in time as provided in Rule 43(2) of the High (Court Commercial Court) Procedure Rules, 2012,thus this application was filed. In his submission the applicant's Advocate adopted the contents of his affidavit which is quite lengthy and detailed.The learned Advocate briefly submitted that, the delay to file the application to set aside the dismissal order was caused by the delay in obtaining the copy of the dismissal order 2 which he had applied to be supplied as soon as he learnt about the dismissal of the case but the same was supplied to him on 24th May 2018, late in the evening, as such he could not manage to lodge the application to set aside the dismissal order in time as required under Rule 43(2) of the High Court (Commercial Division) Procedure Rules, 2O12.The learned advocate submitted further that, Section 14 (1) of the Law of Limitation Act, Cap 89, gives this court powers to allow extension of time where the applicant furnishes sufficient reasons of the delay. The learned Advocate contended that procedure rules are hand maiden of justice and should not be used to defeat or frustrate it. He referred this court to the case of Ramadhani Nyoni Vrs Haule and Company Advocates, (1996) TLR 71. He prayed that the order sought for extension of time be granted as he has provided sufficient reasons for the delay. The learned advocate proceeded to submit that this court may be pleased to restore Commercial Case No 12 of 2012 for the following reasons, firstly, he had notified the court by a letter dated 20th April 2018 that on 24th April 2018 he would be appearing at the Court of Appeal of Tanzania, which is a superior Court to this court. Secondly,the case was wrongly dismissed because it was coming for defence hearing and the plaintiff had closed its case, hence the appropriate order, if at all the court did not agree with his excuse for his absence, was an order for ex-parte defence hearing or pronouncing judgement based on the evidence adduced by the applicant herein, if the respondent herein declined to testify in defence of the suit. Thirdly, looking at the stage the case had reached, this court should have sympathy and a realistic approach in deciding this application 3 which should aim at determining the dismissed Commercial Case No 12 of 2012.He concluded by praying for restoration of Commercial Case No 12 of 2012. In rebuttal to the applicant's submission, the respondent's advocate adopted his Counter Affidavit which is equally lengthy and detailed as the applicant's Affidavit. In addition to what is contained in his counter affidavit , the respondent's Advocate submitted that, the applicant has failed to account for the delay in filling the application to set aside the dismissal Order within 14 days as per Rule 43 (2 ) of the High Court (Commercial Division) Procedure Rules,2012. The learned Advocate contended that the reasons given for the delay are not sufficient, for instance there is no any legal requirement for attachment of the copy of the dismissal order in an application to set aside the same, hence the applicant was not supposed to wait for a copy of the dismissal order. He insisted that ignorance of the procedure is not a defence and referred this court to a case of Deodat Dominick Kahanda and another Vrs Tropical Fisheries (T) Limited and two others, Misc. Commercial Application No 200 of 2017, (unreported). Not only that the respondent's Advocate Contended that, since the copy of the order was obtained on 7th May 2018, as per the submission made by the applicant's Advocate, then it was possible to file the application in time as he was within the 14 days required for filing such applications. The learned Advocate insisted that this application was filed on 4th June 2018,almost a month after the applicant's receipt of the copy of the dismissal order. The learned advocate was of the view that the applicant has demonstrated gross negligence in handling this matter and 4 failed to account for each day of delay as required by the law. He referred this court to the following cases, Karibu Textile Mills Limited Vrs Commissioner General (TRA),Civil Application No 192/20 of 2016, (unreported), Vodacom Foundation Vrs Commissioner General (TRA), Civil Application No 107/20 of 2017, (unreported) As regards the issue on adherence to procedural rules, the learned Advocate submitted that procedural rules should be strictly adhered to and referred this court to the case of Tanzania Ports Authority Vrs Ms. Pembe Flour Mills Ltd, Civil Application No 49 of 2009, (unreported) to buttress his arguments. On the second prayer for restoration of Commercial Case No 12 of 2012, the respondent's advocate submitted that the case was properly dismissed following the applicant's non-appearance on the hearing date.He supported the ruling for dismissal of the applicant's case because the applicant had engaged a firm of Kabonde and Magoiga which has many advocates,therefore the fact that Advocate Tuguta was engaged in the court of Appeal is not a justification for the non appearance of other advocates from the firm to represent the applicant.The learned Advocate argued that the applicant's Affidavit reveals that there are other Advocates working at the Firm of Magoiga and Kabonde, namely, Venance Kibulika and Bernard Kabonde, whose failure to appear in court on 24th April 2018 is not fully and satisfactorily accounted for.In addition to that the respondent's Advocate contended that, the allegation that Advocate Kabonde was sick is not supported by any affidavit by the said advocate to prove that he was sick , hence the same should not be given any weight. 5 He referred this court to the case of Deogratias Kapela vrs Republic, Criminal Application No. 1 of 2006,(unreported). On the Applicant's argument that the case was dismissed on the date of defence hearing, hence it was not proper as the court would have ordered ex-parte defence hearing, the respondent's advocate said that the case before the court was a plaintiff's case and the import of Rule 46 (1) of the High Court (Commercial Division) Procedure Rules,2012 is that each party to a case has a duty to attend to Court. The respondent's advocate concluded his submission by insisting that the fact that advocate Mashaka Fadhili Tuguta was appearing before the Court of Appeal of Tanzania , which is a superior Court to this Court, does not remove the legal duty of other advocates in the firm who were supposed to appear in court on the 24th April 2008 when the case was called for hearing. Since other Advocates from the firm of Kabonde and Magoiga did not appear in court, and no good reasons have been adduced before this court for their non appearance, the prayer for restoration of Commercial Case No 12 of 2012 should be dismissed with costs. In course of composing this ruling I noted that the first and second prayer in the chamber summons are incompatible because in the first prayer the applicant prays that this Honourable Court be pleased to grant the applicant extension of time within which to file an application to set aside an ex-parte dismissal order dated 24th April 2018 vide Commercial Case No 12 of 2012. 6 In the second prayer the applicant prays that upon granting the applicant the extension of time, this honourable court be pleased to restore Commercial Case No 12 of 2012, for defence hearing to proceed and/or for delivery of judgment. Looking at the first prayer it means that if the court grants the extension of time, then the applicant will file an application to set aside the dismissal order, therefore the second prayer would be automatically redundant. To the contrary, the submissions made in court by the applicant's Advocate and countered by the respondent's Advocate were to the effect of applying for extension of time to set aside the dismissal order and if this court allows the 1st prayer then, it is invited to set aside the dismissal order and restore the said Commercial Case No. 12 of 2012. Not only that, the provisions of the law under which this application is made are to the above stated effect. As I have stated at the beginning of this ruling this application is made under Section 14(1) of the law of Limitation Act, Cap 89,R.E 2002, which is for extension of time and Rule 43 (2) of the High Court (Commercial Division) Procedure Rules, 2012 which provides for the power of this court to set aside a dismissal order. I have dispassionately taken time to consider the above situation and the questions that came up into my mind are whether this court is properly moved and whether the above incompatibility of the first and second prayer is fatal in the circumstances of this application. As regards the first question, looking at the provisions of the laws cited in the application, I am of the opinion that this court is properly moved and 7 on the second question, I think the incompatibility of the first and second prayer is not fatal since both counsels in their submissions showed that they had the same understanding that, the applicant is applying for extension of time for making an application for setting aside the dismissal order and if this court is satisfied with the reasons adduced, it is invited to set aside the dismissal order. All the arguments raised at the hearing were to that effect. Having cleared the above hurdle, I now move to determine the merits of this application. Starting with the first prayer for extension of time, I must say it outright here, as correctly submitted by the advocate for the respondent the applicant's advocate has not accounted for each day of delay as required by the laws, the time between the date of receipt of the copy of the dismissal order that is 7th May 2018 to the date of filing this application that is 4th June 2018 is not accounted for. The case of Karibu Textile Mills Limited (supra) and Vodacom Foundation (Supra) that have been referred to this court by the respondent's Advocate are relevant on this point. In the case of Karibu Textile Mills Limited (supra),His Lordship Mwambegele, J.A, quoted with approval the decision in the case of Bushiri Hassan Vrs Latifa Lukio Mashayo, Civil Application No 3 of 2007,where the Court held th a t: "Delay, o f even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken' 8 I am also inclined to agree with the arguments raised by the respondent's advocate that the delay in filing this application was uncalled for, since the applicant was not mandatorily required by law to attach a copy of the dismissal order in the application to set aside the same.In conclusion, no sufficient reasons for the delay to file this application has been adduced by the applicant. However, since the application had two prayers as pointed out herein above, during the hearing of this application the applicant's advocate ably elaborated that in addition to his explanations that on 24th April 2018 he was appearing before the Court of Appeal and did notify the court, the dismissal order sought to be set aside is tainted with procedural irregularity and illegality as the case was dismissed under Order IX Rule 8 of the Civil Procedure Code, Cap 33 R.E 2002, for non -appearance of the applicant on a date fixed for defence hearing and the applicant/plaintiff had already closed its case. The learned Advocate was of the view that this court should look into the appropriateness of the application of Order IX Rule 8 in the circumstances of the case at hand and legality of the dismissal order. I have considered the above issue on question of appropriateness and legality of the dismissal order, I think it is worthy the attention of this court, thus granting the extension of time sought in the first prayer in this application is inevitable for a purpose of ascertaining the alleged procedure irregularity and/or illegality of the dismissal order so as to take appropriate measures to put the matter right as it was held in case of CRDB Bank Limited Vrs George M. Kilindu and Hon Attorney 9 G eneral, Civil A p p lication No. 87 o f 2009.(unreported), whereby the Court of Appeal, quoting the decision in the case of T ra n sp ort E quipm en t V rs V alam bia,(1 9 9 3 ) T L R 91, granted an application for extension of time to file an application for revision so as to enable the court to ascertain the point of the alleged illegality by the applicant, despite the finding made by the court that no sufficient cause for the delay was given. The court had this to say; ' we are therefore satisfied that no sufficient cause has been given for the delay. There is however a second aspect o f this matter. In advertent as he was, Mr. H.H.H Nyange, learned Advocate, has, however, sufficiently demonstrated that there is a palpable case o f illegality in the manner the execution proceedings were carried out in the High Court.There is need to show whether or not there was a sum decreed, and whether the sum decreed is the one allowed in the execution of proceedings............In Transport Equipment Vrs Valambia & A. G ( 1993) TLR 91,it was h e ld , inter alia thus: Held: ( i) .................................. (ii) When the point at issue is one alleging illegality o f the decision being challenged, the court has a duty even i f it means extending the time for the purpose to ascertain the io point and, if established, to take appropriate measures to put the matter and the record right. (Hi)................................................ (iv)I.............................................. Drawing strength from this position we grant the application. The applicant is given extension o f time to file his application for revision o f the execution proceedings' From the foregoing, drawing the strength from the case of CRDB Bank Limited ( supra), I hereby grant the first prayer for extension of time to apply for setting aside the dismissal order and proceed to consider the merit of the second prayer that is the restoration of Commercial Case No 12 of 2012. I have examined the reasons advanced by the applicant's advocate as well as the case referred to this court and am inclined to agree with the submissions made by the respondents advocate that, the applicant engaged a firm of Kabonde and Magoiga to represent him in the case and the firm had many advocates as revealed in the affidavit filed by the Applicant's advocate. No sufficient reasons have been advanced to justify the non-appearance of the other two advocates in the firm who have been mentioned by the Applicant's advocate in his Affidavit, namely Benard Kabonde and Venance Kibulika. In fact the applicant's advocate did not provide any explanations as to why Advocate Venance Kibulika did not attend to court on 24th April 2O18.The learned Advocate alleged that Advocate Kabonde was unable to attend to court because he was sick, but ii again as correctly submitted by the respondent's advocate, there is no any affidavit sworn by Advocate Kabonde to that effect. The case of Deogratius Kapela (supra) referred to this court by the respondent's advocate is relevant on this point. I have taken considerable time to analyze the applicant's argument that the dismissal order on account of the applicant's/plaintiff's non- appearance was not proper since it was made on the date when the case was coming for defence hearing and the plaintiff had closed its case. As aforesaid the response by respondent's advocate to this argument was very brief, that is the case in court is always the plaintiff's case. With due respect to the Respondent's advocate his response in this issue is not satisfactory as it leaves a number of pertinent legal issues unanswered, for instance, what happens to the evidence that was tendered by the plaintiff? I have been compelled to consider the import of Order IX Rule 8 of the Civil Procedure Code, Cap 33,R.E 2002 and it is my considered view th a t, despite the fact that the wording of law in Order IX Rule 8 of the CPC is not elaborate enough to distinguish a situation where a case is called for hearing for the plaintiff to give evidence and for the defendant to defend the suit, by reading the contents of Order IX Rule 8 of the CPC, it is evident that it is applicable when the plaintiff is required to appear for hearing to give evidence to prove the case before the court, that is why Order IX Rule 8 of the CPC provides that if the defendant admits the claim or part thereof, then the court shall pass a decree against the defendant. To me, this presupposes that no any evidence has been presented by the plaintiff, so the court will have nothing before it unless the defendant admits the claim 12 otherwise the case has to be dismissed. But, in a situation where the plaintiff has given evidence before the court, even if she/he fails to appear in court on the date the case is fixed for defence hearing, I think the court is not supposed to trash the plaintiff's evidence. I am inclined to agree with the views made by the applicant's advocate that the case was supposed to proceed with ex-parte hearing on the defence side as the case was actually for the defence side to give its evidence. In addition to the above, I noted that on 24th April 2018, when the case was dismissed the Respondent's advocate, made two prayers before this court, that is dismissal of the suit due to non-appearance of the plaintiff and his counsel with costs or, in the alternative, the suit be transferred to Dar es Salaam Registry for hearing of the defence case. From the foregoing, I hereby grant this application. Pursuant to Rule 43(2) of the High Court ( Commercial Division) Procedure Rules, 2012, I set aside the dismissal order dated 24th April 2018 and restore Commercial Case No. 12 of 2012 as prayed by the applicant's advocate for continuation of defence hearing. Each party will bear its own costs. Dated at Mwanza this 20th day of September 2018 JUDGE 13