THE NATIONAL BANK OF COMMERCE VS PAV INVESTMENT MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 42 OF 2015 (Arising from Commercial Case No. 59 of 2011) THE NATIONAL BANK OF COMMERCE.......................... APPLICANT VERSUS PAV INVESTMENTS LTD PETER ALBANO VAVA MARGARITA ROSE VAVA I..... ............................ RESPONDENTS YAHANA CHARLES ALBANO 26th August & 25th September, 2015 RULING MWAMBEGELE, J.: This is a ruling in respect of an application for setting aside the order of this court dated 04.03.2015 which dismissed Commercial case No. 59 of 2011 for want of prosecution. The Ruling was to be delivered yesterday 24.09.2015 which turned to be a dies non (Eid ul-Adha). In terms of section 60 (1) (h) of the Interpretation Act, Cap. 1 of the Revised Edition, 2002, I have deliver it today. The application has been filed by the National Bank of Commerce (the applicant) who was the plaintiff in that case and PAV Investments Limited, 1 Peter Albano Vava, Margarita Rose Vava and Yohana Charles Albano were defendants. The application has been proffered under the provisions of rule 43 (1) and (2) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules") and Order IX rule 9 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (hereinafter "the CPC"). It is supported by two affidavits: that of Thomas Mihayo Sipemba, an advocate of this court and courts subordinate thereto, save for the Primary Court and thus an officer of this court, and that of Thawani Salum; a court officer working as a librarian of this court. At the oral hearing of the application on 26.08.2015, Ms. Linda Bosco, learned counsel appeared for the applicant and Mr. Reginald Bernard Shirima, learned counsel advocated for the respondent. The oral hearing was preceded by both learned counsel filing skeleton written arguments within three working days before the said oral hearing as dictated by the provisions of rule 64 of the Rules. At the oral hearing, both parties adopted their respective affidavits and counter-affidavit as well as their respective skeleton written arguments. It was Ms. Bosco's submission for the application that in terms of Order IX rule 9 (1) of the CPC, an applicant seeking to set aside a dismissal order of the court dismissing any suit for want of prosecution, he has to furnish the court with sufficient reasons for nonappearance when the suit was called on for hearing. The learned counsel submitted that it was evident from the affidavits supporting this application that the applicant's failure to appear when the suit was called on for hearing was a result of unfortunate events and not out of sheer negligence on the part of the applicant and counsel. As per the two affidavits, the applicant's counsel, a Mr. Thomas Sipemba, was in 2 court but decided to sit in the library together with the witness for the plaintiff Bank; a certain Venant Laurent. Before going into the library, and being aware that the case might be called while in there, Mr. Sipemba asked Mr. Reginald Bernard Shirima who was the counsel for defendant in that case to call him once the case would be called and that the latter agreed. Ms. Bosco went on to submit further that it happened that Mr. Shirima did not call the applicant's counsel when the case was called on for hearing. And when the court told Mr. Shirima to look for him (the applicant's counsel), he did not go to the library where he told him that he would be waiting. Ms. Bosco was surprised why Mr. Shirima decided to do what he did. The learned counsel submitted therefore that for the reasons stated in the affidavit, the applicant was prepared to prosecute the case on that day and that the applicant has shown sufficient reasons for his nonappearance when the suit was called on for hearing. The learned counsel relied on Mulla: the Code of Civil Procedure, 16th Edition, Volume II at page 2031 to urge the court to not confine itself to the circumstances which prevented the applicant from not entering appearance when the case was called on for hearing but to look at the totality of the situation including a bona fide mistake which is not unreasonable as a sufficient cause. She added that the nonappearance was a result of confusion and misunderstanding between the two counsel and not out negligence. Ms. Bosco also relied on Shocked and another Vs Goldschmidt and others [1998] 1 All ER 372 to buttress the point that the applicant's conduct before the alleged nonappearance was not tainted in that it had been 3 appearing all along when the suit was slated for hearing. She submitted that it is the practice of this court that suits are determined on merits as was the case in Fredrick Selenga & another Vs Agnes Masele [1983] TLR 99 and Mwanza Director M/S New Refrigeration Co. Ltd Vs Mwanza Regional Manager of TANESCO Ltd & another [2006] TLR 335. She also submitted that the respondent would also not be prejudiced nor suffer any irreparable injury by the grant of this application. She cited Jesse Kimani Vs McCornel and another [1966] EA 547 to reinforce this point. She therefore prayed that the application should be granted with costs. In response, Mr. Shirima, learned counsel for the attacked the application with the necessary force it deserved. He attacked the applicant's submission and affidavits as well as skeleton arguments as showing no sufficient reasons for nonappearance. Mr. Shirima, as true officer of the court, admitted that indeed Mr. Sipemba asked him to inform him the moment the case was called. That he told him that he would be downstairs. He went on to submit that when the case was called, the respondent's advocate sought leave of the court to go and call the applicant's advocate who had told him that he would be downstairs. He went downstairs but the applicant's counsel was not there. Mr. Shirima told the court that his admission to call him was limited to downstairs and not the library nor anywhere apart from downstairs as the applicant's counsel informed him that he would be sitting on the bench downstairs. 4 Mr. Shirima submitted that the applicant has not shown good cause for the nonappearance when the suit was called on for hearing because the said Venant Laurent did not swear any affidavit is support of the application. He also attacked the affidavits of Mr. Thomas Mihayo Sipemba and Thawani Salum as being somewhat contradictory; while Mr. Salum deposed that the applicant's counsel was in the library as from 9.20am and 10.15am, the applicant's counsel deposed that he was in the library for about 55 minutes. Mr. Thawani's affidavit does not speak of the alleged Venant Laurent; the witness who Mr. Sipemba alleges to be with. In the premises, Mr. Shirima states that the applicants nonappearance when the case was called on for hearing was caused by sheer negligence of the applicant and counsel and thus the application should be dismissed with costs. Rejoining, the learned counsel for the applicant stated that the there was no need to procure the affidavit of the said Venant Laurent as it was felt that that of the applicant's counsel would suffice. On the consent being limited to calling Mr. Sipemba from downstairs, the learned counsel submitted that the library was the closest place to look for Mr. Sipemba I have subjected the learned arguments to the proper scrutiny they deserve. The applicant's in essence is blaming the respondent's counsel as being the reason behind the nonappearance. To cut the long story short, the applicant feels that the respondent's counsel played dirty tricks against the applicant's counsel by not calling him from the library where he told him he would be waiting. On the other hand, the learned counsel for the respondent thinks the nonappearance was out of sheer negligence of the applicant and counsel. 5 On a balance of probabilities, I think the applicant has provided sufficient reasons why counsel did not enter appearance when the suit was called on for hearing. Admittedly, it appears there was no meeting of the mind between the two learned counsel; while the learned counsel for the applicant thought he told his colleague that he would be in the library, the learned counsel for the respondent thought that he told him he would be seating on the bench downstairs. This, indeed, is an unfortunate situation and I need not pursue it any longer. Order accordingly. DATED at DAR ES SALAAM this 25th day of September, 2015. J. C. M. MWAMBEGELE JUDGE 6