techlong packaging machinery ltd and another vs a one products and bottlers ltd 2020 tzhccomd 1983 14 august 2020

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO 131 OF 2019 (ORIGINATING FROM COMMERCIAL CASE NO. 105 OF 2017) TECHLONG PACKAGING MACHINERY LIM IT E D ......... 1st APPLICANT HONG KONG HUA YUN INDUSTRIAL LIMITED............2 nd APPLICANT

VERSUS A-ONE PRODUCTS AND BOTTLERS LIM IT ED ................ RESPONDENT Date of Last Order: 21/07/2020. Date of Ruling: 14/08/2020. RULING. MAGOIGA, J. The applicants, TECHLONG PACKAGING MACHINERY LIMITED AND HONG KONG HUA YUN INDUSTRIAL LIMITED by way of chamber summons made under Rule 23 (1) of the High Court (Commercial Division) Rules, 2012 G.N. 250 as amended moved this court for the following orders, namely:- 1. That this honourable court be pleased to set aside default judgement entered on 27th September, 2019.

2. That the costs of this suit be borne by the respondent.

3. That any other relief(s) this court may be deem fit and just to grant. i The chamber summons was accompanied by the affidavit of Mr. Chunyan Li stating the reasons why this application should be granted. Upon being served with the chamber summons and accompanied affidavit, the respondent filed counter affidavit deponed by the late Dr.MASUMBUKO ROMAN MAHUNGA LAMWAI stating the reasons why this application should not be granted. The facts pertaining to this application are simple and straightforward. The applicants were defendants in Commercial Case no 105 of 2017, in which the respondent was the plaintiff. In the above stated case, the plaintiff claimed several reliefs jointly and severally against all applicants. The applicants were dully served but failed to file written statement of defence as required by the Rules of this court. And even when extension of time to file defence was sought and granted, still the applicants failed to file written statement of defence. In the circumstances, the suit proceeded under Rule 22 (1) as amended by G.N. 107 of 2019. Consequently, a judgement was entered in favour of the respondent and the instant application is intended to set aside the impugned judgement, hence, this ruling. When this application was called for hearing, the applicants had the legal services of Ms. Asia Tukutoola, Mr. James Marenga and Mr. Frodius Mtungi, learned

advocates. On the part of the respondent, had the legal services of Messrs. Elisa Abel Msuya, Romans S. Lamwai and Ms. Regina Kivula, learned advocates. Both learned advocates were ready for hearing. Mr. Mtungi in support of the application recited the provisions under which this application was made and prayed to adopt the contents of the affidavit in support of the application to form part of the submissions he was orally making. Mr. Mtungi pointed out that, the only reason in support of this application is the negligence on the part of the former advocates for failure to act to the best interest of the applicants, as such caused the applicants to be denied their right to be heard. According to Mr. Mtungi, right to be heard is fundamental and the applicants should not be denied that right based on negligence of the advocates. In support of the above stance, the learned advocate for the applicants cited the case of GANYA KIMAMBI v. SHADRACK NG'AMBI, MISC. APPLICATION NO. 692 OF 2018. Mr. Mtungi further relying on the above cited decision, went on to implore the court to take note of the holding in that case that, 'every judicial body, or quasi judicial body must apply principal of natural justice and that the denial of that right to a hearing, is appoint of law which underlay the proceedings to be a nullity'. 3 Further, the learned advocate for the applicants argued that, the

instant application is aimed to cure the consequences of failure to file written statement of defecne caused by the applicants' former advocates in the course of legal representation. It was also the view of the learned advocate for the applicants that, denying the instant application will be against the provisions of article 13(6) (a) of the United Republic of Tanzania constitution, 1977 as amended from time to time. In conclusion, Mr. Mtungi argued that, negligence of an advocate and interest of justice are sufficient reasons for the court to set aside the default judgement and prayed that their prayers as contained in the chamber summons be granted. Mr. Msuya opposing the application prayed that, the contents of the counter affidavit be adopted to form part of the oral submission he is making. Mr. Msuya pointed out that, the provisions under which this application is pegged requires the applicants to satisfy two conditions, namely: 1. The application must have been filed within 21 days.

2. That the applicant must give sufficient reasons of the failure to file written statement of defence in time. Mr. Msuya further pointed out that, in terms of Rule 23 (2) the powers to set aside default judgement are discretional and must be exercised in line with the requirements as stated in the Rule. According to Mr. Msuya, looking at the contents paragraph 1-9 of the affidavit in support of the application, no single paragraph contained any sufficient reasons why the applicants did not file written statement of defence, insisted Mr. Msuya. Paragraph 10 which cry for the interest of justice, according to Mr. Msuya, stand alone with no legs to stand as the interest of justice is not one way traffic. Mr. Msuya went on to point out that, paragraphs 3, and 6 contained lies and deserve to be expunged from the record. To bolt up his arguments, the learned advocates for the respondent cited the case of KIDODI SUGAR ESTATE AND 5 OTHERS v. TANGA PETROLEUM CO LIMITED, CIVIL APPLICATION NO. 110 OF 2009, in which it was held that, no court can act on falsehood affidavit. As to paragraphs 4 and 5 contain hearsay evidence and are not authentic. Paragraphs 7-8 blame the manner their advocates conducted themselves but with no statement to denounce all vigilantly actions taken by IMMMA advocates. According to Mr. Msuya, what is stated in these paragraphs are afterthought after the delivery

of the default judgement. On negligence of an advocate as reason for setting aside the default judgement, it was the strong submission of Mr. Msuya in opposition that, negligence of an advocate per se is not sufficient reason to set aside a default judgement and no proof that IMMMA advocates acted negligently. In support of this the learned advocates for the respondent cited the case of UMOJA GARAGE v NATIONAL BANK OF COMMERCE,[1997] TLR 109. On the cases cited by the learned advocates for the applicants, it was the submissions of Mr. Msuya in opposition that, same are distinguishable and the circumstances are different in that the advocate did not appear, while in this case the advocate have been appearing. In the case of GANIA (supra) the advocate was inactive but in this case, the advocates were active and the procedures in Labour Division are different from Commercial Division in manner which cases are handled. It was, therefore, the strong submissions of Mr. Msuya that, the present application is without merits because it intends to achieve nothing. In this,. Mr. Msuya argued that, since the application to file written statement of defence was denied by this court in Misc. Civil Application no 311 of 2017 for failure to account for days of delays, so their right to file written statement of defence has already decided by this court, hence, this court, according to

Mr. 6 Msuya is functus officio and the instant application is an academic exercise. On the argument that the application be allowed for the interest of justice and rule of natural justice to be heard, it was the reply of Mr. Msuya that, right to be heard is not absolute but have to be exercised subject to other laws and interest of justice is not one way traffic. Moreover, no infringement of article 13(6) (a) has been proved because they exercised all the available machinery. On the totality of the of the above reasons, Mr. Msuya invited this court to find out that, the instant application is without any sufficient reason and proceed to dismiss in its entirety with costs. In rejoinder, Mr. Mtungi submitted that the applicants have met all the conditions as contained in Rule 23 by filing the application in time and by demonstrating sufficient reasons to justify for failure to file written statement of defence. Mr. Mtungi joins hand with Mr. Msuya that, the powers of the court under Rule 23 are discretional and as such have to be exercised judiciously and for the best interest of justice. On the affidavit which was seriously attacked on its contents and lack of sufficient reason, the learned counsel for the applicants submitted that it contained matter of facts as they are known or believed to be in the knowledge of the deponent. Further rejoinder was that in the power of

attorney advocates Madina and Nyika had different roles in the conduct of the matter. Mr. Mtungi conceded that, Mr. Nyika represented the applicants but his role led the applicants into wrong direction. On the argument that this court is functus officio, it was the rejoinder of Mr. Mtungi that, the application that was rejected was for extension of time to file written statement of defence but the instant application is for setting aside the default judgement, which are two different applications and with different consequences, hence, this court is seized with jurisdiction to entertain the application. Finally, the learned advocate for the applicants prayed and insisted that this application be granted as prayed. Having heard the rival submissions of the advocates for parties as summarized above on the merits or demerits of this application, the task of this court is to determine this application guided by the provisions under which the application was pegged. The provision of Rule 23 as amended by G.N. 107 of 2019 are imperative to produce them hereunder for easy of reference. The said provision provides as follows:- Rule 23(1) Where a judgement has been entered pursuant to Rule 22 the court may, upon application made by the aggrieved party, within twenty one days from the date of the judgement, set aside or vary such judgem ent upon such terms as may be considered by

the court to be just. (2) In considering whether to set aside or vary the judgement under this rule, the court shall consider whether the aggrieved party has:- (a) applied to the court within the period specified under subrule (1); and (b) given sufficient reasons for failing to file defence. (3) N/A (4) N/A (5) N/A From the above rule it can be noted and observed that, one, a default judgement under Rule 22 can be entered against a defendant who has failed to file written statement of defence upon proof of service and upon application made by the plaintiff in Form N o .l set out in the Schedule to the 9 Rules accompanied with an affidavit in proof of the claim; two, the court is given discretion powers to set aside a default judgement if an application is made by the aggrieved party upon satisfying, two cumulative conditions, namely, one, making an application to set aside the default judgement within twenty one days from the date of the decision, and two, by giving sufficient reasons for failure to file a defence, when he/she was required to do so. The above two conditions will guide this court in determining the merits or demerits of this application. Another observation from the above rule is that, another remedy that can be entertained in the above rule is to vary the judgement upon such terms as may be considered by the court to be just without necessarily setting

aside the judgement. However, this remedy is not the subject of this application now. Guided by the above two conditions as stipulated above, two issues are imperative in determination of this application, namely, one, whether the application was made within twenty one days from the date of the judgement and the second one is whether the applicants have given sufficient reasons for failure to file a defence. On the first issue whether the applicants filed the instant application within twenty one days, will not detain this court much. 10 The same is answered in the positive and it was not an issue within the contending parties herein. The most rival issue and which is hotly contested between the legal minds of the parties is, whether the applicants have given sufficient reasons for failing to file a defence after service. I have dispassionately considered the affidavit in support of the application, counter affidavit and the oral rival arguments of the learned advocates for parties together with the provisions of Rule 23 and I am of the firm considered opinion that, the instant application is akin to fail. I will give reasons and explain. One, one of the main reasons advanced in this application is the negligence of the advocates for the applicants in handling the suit subject of the default judgement in dispute. As rightly argued by the learned advocates for the respondent,

and rightly so in the opinion of this court, no single paragraph in the affidavit of the applicants stated that, the active prosecutions of the IMMMA advocates in the main suit was not blessed by the applicants or was not upon their instructions to the approach taken by their lawyers resulting into loosing themselves right to file defence. In the absence of such facts, then, makes the instant application an afterthought on their part. Two, failure to file defence in this case was in defiance of two orders of this court twice, one, when the suit was called for 11 orders on 07/09/2017 and the second one on 14/02/2018 when extension was sought and granted that defence be filed within 21 days but nothing was done. Three, while I agree that very rarely and in exceptional circumstances negligence of the advocate fully explained and supported by other facts to dilute that negligence, can lead into good reason to set aside default judgement, but the circumstances of this application and the way the default judgement was arrived do not have special circumstances to warrant the exercise of the discretion without such facts. Four, interest of justice, yes can be sufficient reason but same has to be applied in two-way-traffic basis and not in a one way traffic to remove unequal treatment of the parties in a case. Five, It is true that at times parties in special circumstances should not be

punished for wrongs committed by their advocates but that will depend on particular facts of case to case basis. In this application, no mistake was committed by the learned advocates from IMMMA save that they were taking wrong cause and by the time they came back to the right cause, it was too late to save already sinking boat on their part. Therefore, all cases cited by the learned counsel for the applicants are distinguishable from the circumstances of this application and as such distinguishable from the facts of this application. Six, since no allegations of non-service, fraud, 12 misrepresentation and any other sufficient reason to warrant this court to act otherwise, I find this application a futile exercise on the part of the applicants. That said and done and for the reasons explained above, I am constrained to find this application wanting for sufficient reasons and the same is, and do, hereby dismissed in its entirety with costs. It is so ordered Dated at Dar es Salaam this 14th day of August, 2020. 13