VERONIKA SULEMAN NKYA VS DIAMOND BANK T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 9151 OF 2024 {Arising from Misc. Commercial Application No. 6288 of2024, Originating from Commercial Case No. 1 of2020, High Court of Tanzania, Commercial Division at Arusha) Between VERONICA SULEMAN NKYA................................ APPLICANT Versus DIAMOND TRUST BANK (TANZANIA) LIMITED.................... 1st RESPONDENT ALLAN REUBEN MOLLEL T/A FIRST WORD INVESTMENT AND DEBT COLLECTORS...................... 2ND RESPONDENT

RULING Date of Last Order:10/06/2024 Date of Ruling: 26/07/2024 GONZI, J. By way of Chamber summons supported by an affidavit, the Applicant instituted the present application praying for the following orders: a) An order to restore Misc. commercial application No. 6288 of2023 dismissed on 15th April2024for non-appearance b) Costs of this application. c) Any other appropriate reliefs. To support the chamber summons Mr. Joseph Kalima Rashid filed an affidavit and stated as follows: On 2nd April 2024 Misc. Commercial Application No. 6288 was scheduled for a hearing on 15th April 2024. On 15th April 2024, the learned counsel for the Applicant was unable to attend the hearing of Misc. Commercial Application No. 6288 of 2024 due to a being involved in a motorcycle accident along the way and that he informed the trial Judge's Clerk about the accident via mobile phone by way of a short message. A copy of the SMS was attached as ANNEXURE VS1. He stated that his non- appearance on 15th April, 2024, led to the dismissal of Misc. Commercial Application No. 6288 of 2024 by the Honourable trial Judge. He attached the dismissal order as Annexture VS2. He stated that the accident caused pain in his chest, left arm, and lower ribs, leading to his admission at Sinza Palestina Hospital on 16th April, 2023. He produced medical chit as Annexture VS3. He stated that his non-appearance in Court was

due to the accident on 2 15th April, 2024, and not negligence. Therefore, he sought restoration of Misc. Commercial Application No. 6288 of 2024 to ensure substantive justice and allow both parties to be heard. The respondent resisted the application through the counter affidavit of the company secretary and head of legal affairs of the First Respondent Company. He denied the occurrence of the alleged accident as there was no police report to prove the occurrence of the alleged accident. He disputed the allegation of the Applicant having sent a short message to the Court Clerk of the Trial Judge and reasoned that the Misc. Commercial Application No. 6288 of 2024 was set for hearing on 15th April, 2024 at 09:30 am while a copy of the print-out of the alleged short message to the Judge's Clerk was sent at 10:03 am, which was 33 minutes after the scheduled case time. He reasoned further that the annexture VS1 does not show the alleged Court Clerk's mobile phone number to which the short message was allegedly sent. In the affidavit, also, that mobile number was not shown. He stated that whereas the Applicant relies on information from another person namely the alleged Court Clerk, there is no an affidavit from the alleged Judge's Court Clerk to support the allegation. The Respondent also stated that the applicant was aware of the hearing date, as such he should have appeared 3 in

person, even if her counsel was involved in an accident. He stated that actually the Misc. Commercial Application No. 6288 of 2024 was dismissed on 15th April 2024 for the applicant's non-appearance, not her counsel's. On the medical grounds, the Respondent stated that Medical reports presented indicate that the deponent, Applicant's learned counsel, attended hospital on 16th April, 2024 after the case had been dismissed on 15th April, 2024 and that the Applicant did not attach any Police Medical Examination Report in the Prescribed Police Form (PF 3) which would be required before a patient involved in an accident could be treated in hospital. The Respondent's counsel therefore stated that the applicant and her counsel were negligent in not appearing in Court when the case was called on for hearing. He stated that the applicant's failure to appear indicates that she had lost interest in prosecuting her application and is just trying to avoid execution of the Court's decree. The application was argued by way of written submissions. The Applicant's learned counsel, Mr. Joseph Kalima Rashid, submitted that the restoration application seeks to set aside a dismissal order under Rule 43(2) of the High Court (Commercial Division) Procedure Rules, 2012, and Order IX Rule 3 of the Civil Procedure Code (CAP 33 RE. 2019). He argued that 4 these rules allow parties to apply within

fourteen days to reverse a judgment or dismissal order entered for non-appearance of a party provided that the absent party can demonstrate valid reasons for his non-appearance, ensuring fair treatment under the law. Mr. Joseph Kalima Rashid, submitted that he was present in Court on 2nd April, 2024 when the hearing date was scheduled but missed the hearing on 15th April 2024 due to the motorcycle accident caused by a swerving car. He submitted that despite attempting to contact the trial Judge's clerk, he couldn't reach him and therefore he sent a text message at 10:03 AM explaining his situation and he argued that a print-out of that text message was attached as Annexture VS 1 to the affidavit. He argued that due to the injuries sustained for his involvement in the motorcycle accident, he was physically shaken with bruises on his left arm and later some discomfort in his left lower ribs. This prompted him to seek medical help and check-up at Sinza Palestina Hospital on April 16, 2024 as it can be evidenced by Annexure VS 3. Mr. Kalima Rashid, submitted that his absence on April 15th April 2024 during the scheduled Court hearing date was due to the unforeseen motorcycle accident he was involved in while enroute to Court. He argued 5 that despite his efforts of sending a legal officer to follow up in Court, the matter had already been dismissed for lack of appearance by the

Applicant and her counsel. In support of the application, the Applicant cited the case of LULUU GENERAL COMPANY LTD & ANOTHER VS TANZANIA POSTAL BANK where he argued that a similar situation was resolved favorably due to illness. He argued that sickness is a good ground for reinstatement of the dismissed case. He also relied upon the case of SADRU MANGALJI VS ABDUL AZIZ LALANI & 2 OTHERS, where the High Court (Commercial Division) at Mwanza acknowledged that the applicant's counsel was adequately justified in his absence when their case was dismissed for non-prosecution. The Court in that case took notice of the fact that the advocate had consistently appeared to prosecute the case in the past and had occasionally sent another lawyer in his absence. Mr. Kalima Rashid also referred to the decision in SHOCKED AND ANOTHER VS GOLDSCMIDT AND OTHERS (1998) 1 ALL ER 372, which highlighted the importance of considering the applicant's conduct leading up to the alleged non-appearance in such applications. He submitted that according to the precedent set in JOHN MAGENDO VS N.E GOVANI (1973) LRT 60, it is the solemn duty of honorable magistrates 6 and judges to adjudicate cases on their merits, ensuring justice for all parties involved. Further, Mr. Kalima Rashid argued that granting this application will not prejudice the respondents, but denying it will severely prejudice the applicant,

as her matrimonial properties located at PLOT NO. 98 BLOCK "DD" C.T 10408, PLOT NO. 386, BLOCK "DD" C.T NO. 13068, and PLOT NO. 385 BLOCK "DD" C.T NO. 13075 in Sombetini, Arusha Region, face a likely public auction as advertised by the Court Broker on 7th June 2024. Mr. Rashid argued that, furthermore, upon reviewing the respondents' counter affidavits, it has come to his attention that they contain extensive plagiarism across paragraphs 2 to 12. He argued that this lack of authenticity undermines the legal system's integrity, diminishes trust in sworn statements, and jeopardizes the fairness of the proceedings. He argued that plagiarized affidavits undermine the honesty and credibility crucial to legal proceedings. He requests their removal for the sake of upholding legal integrity. He concluded by relying on section 3B of the Civil Procedure Code, thereby urging the Court to set aside the dismissal order of April 15, 2024, 7 due to applicant's absence which was caused by an accident and therefore allow a fair consideration of Miscellaneous Application No. 6288 of 2024 based on its merits. The Respondent's counsel opposed the Application, he submitted that the Applicant's Miscellaneous Commercial Application No. 6288 of 2024 was dismissed due to non-appearance. He adopted the Counter Affidavits of Victoria Lupembe and Allan Reuben Mollel, Principal Officers for the 1st and 2nd

Respondents. He argued that the applicant's prayers are perplexing. Referring to the provisions cited, including Section 95 and Order IX Rule 3 of the Civil Procedure Code (Cap. 33 R.E 2019), he asserted that these are not applicable to grant the reliefs sought. He referred the Court to Rule 43(2) of the High Court (Commercial Division) Procedure Rules, 2012, as amended in 2019, which pertains to setting aside judgments or orders issued ex parte or through dismissal under Order IX of the Civil Procedure Code. He argued that the Applicant is seeking restoration of Miscellaneous Commercial Application No. 6288 of 2024 which was dismissed on April 15, 2024 due to non-appearance. He argued that the Applicant's Chamber Summons is seeking both restoration and reinstatement of Misc. Commercial Application 8 No. 6288 of 2024, dismissed for non-appearance. He argued that Rule 43(2) allows setting aside or varying orders but does not cover restoration or reinstatement without first addressing the dismissal order directly. Granting such relief would go beyond the Applicant's prayers and legal norms, as highlighted by the Supreme Court of India in Bharat Amratial Khotari v. Osukhan S. Sindhi & Others, A.I.R 2010 SC.

475. He argued that the Applicant's failure to request setting aside the dismissal order in their prayers is a fatal irregularity under the current legal principles. He argued that Courts are bound by parties' pleadings and cannot grant reliefs not explicitly sought. He cited the case of Masaka Mussa vs Rogers Andrew Lumenyela & Others (Civil Appeal No. 497 of 2021) [2023] TZCA where it was held that it's clear that Courts cannot deviate from pleadings to introduce new issues. Therefore, he argued, reinstating a case dismissed for non-appearance requires first addressing the dismissal order. He urged the Court to strike out the premature prayers in the Chamber Summons and consider granting costs. The Respondent's counsel further addressed the merits and substance of the Application. The Respondent's counsel submitted that the Applicant's submissions raise concerns as they include unsupported assertions made 9 from the bar, not substantiated by the Affidavit filed in support of the Application. Specifically: a) Page 2, Paragraph 4: claims of attempting to contact the Judge's clerk and sending a text message. b) Page 2, Paragraph 5: statements regarding the trauma from the accident and physical injuries. c) Page 2, Paragraph 6: mention of delegating a legal officer for follow-up. He argued that none of these details were documented by way of a supporting Affidavit. He argued that

the Applicant's submissions from the bar lack evidential basis and should be disregarded, as per established legal principles. He cited precedents like Puma Energy (T) Ltd vs Spec-Chek Enterprises Ltd and Tina & Co. Limited vs Eurafican Bank T. Ltd, where it was held that it's clear that statements of fact from counsel are not considered evidence in Court proceedings. Therefore, the respondent's counsel prayed for the Court to disregard these aspects of the applicant's submissions. io He argued that in assessing the Applicant's absence on 15th April 2024, Rule 43(2) of the Rules guides the Court. This rule permits the Court to set aside or modify a dismissal order under just terms. The Court's discretion aims to correct inadvertent errors without condoning deliberate attempts to evade justice. He argued that on Rule 43(2) of the Rules, mandates two conditions: 1. The Application must be filed within fourteen days from the dismissal order date. He argued that this condition was met in this case.

2. The Applicant must provide valid reasons for their failure to appear on the hearing date. He argued that this has not been substantiated adequately. It was submitted for the respondent that despite filing within the timeframe, the reasons for non-appearance lack validity, and crucially, there is no supporting affidavit from the alleged Court clerk. He argued that this requirement aligns with legal precedents, including the Court of Appeal's stance in Loshilu Karaine & Others vs Abraham Melkizedeck Kaaya (Civil Appeal no. 534 of 2020) [2024] TZCA 93 (unreported). The Respondent argued that upon reviewing the Applicant's statements and submissions, they attribute their failure to appear for the hearing mainly to a motorcycle accident detailed in paragraphs 4 and 5 of their Affidavit. They state they ii informed the Court clerk via text message about the accident and provided supporting documents. However, it is essential to note that proving such assertions is crucial as per the Court of Appeal's Ruling in African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (unreported), the burden of proof lies with the Applicant to substantiate their claims. He argued further that the Applicant's statements about the accident and hospital visit are contradictory. They claim to have informed the Court clerk about the accident via text

message after the case was dismissed on April 15, 2024, at 10:03 AM, yet they state that the advocate went to hospital on April 16, 2024, and paid bills at 2:46 PM. This inconsistency is crucial given the Court's dismissal due to non- appearance on April 15 2024 was made at 9:30 AM. Hence it undermines the affidavit's credibility. Legal precedents, such as Damas Assesy & Another vs Raymond Mgonda Paula & Others,(Civil Application No. 32 of 2018) [2019] TZCA 161 (unreported) stress that false information in affidavits cannot be used by the Court in decision-making. The Respondent argued that the Applicant failed to provide crucial documentation supporting their claim of an accident such as a PF3 (medical examination) report and the PF90 (road accident form) whereby both are 12 required under police procedures. He argued that the out patient medical form provided lacks medical practitioner's certification and uses a reception stamp, not a medical one, hence casting doubt on its authenticity. He relied on the case of And Beyond Travel Limited vs Didas James, to underscore the point that without the PF3, the Court cannot verify the claimed injuries from the accident. On the alleged; text message being sent to the Court Clerk, the respondent submitted that the Applicant's claim of informing the Court Clerk about the accident via a text message lacks sufficient detail and

specificity to justify non-appearance. The message provided does not clearly establish the time and circumstances of the accident in relation to the scheduled Court appearance. Therefore, it does not constitute a compelling reason for setting aside the dismissal order. He argued that the text message presented as evidence was sent 33 minutes after the scheduled hearing time, casting doubt on its credibility. Additionally, the absence of an affidavit from the Court Clerk to corroborate receiving the message further undermines the applicant's claim. He relied on PHARES WAMBURA & OTHERS vs. TANZANIA ELECTRIC SUPPLY Co. Ltd (Civil Application 186 of 2016,) which lays down the rule that assertions involving another person require 13 supporting affidavit by that other person. Without such corroboration, the claims remain unsubstantiated and should not form the basis for Court action. The Respondent argued that in the cited cases from the applicant's side, parties provided valid reasons for non-appearance, unlike in this matter where such reasons were not provided. The respondent submitted that the principle that a party and his advocate must appear on the hearing date in Court is fundamental; failure to do so without sufficient justification reflects negligence. He referred the Court to Misc. Civil Application No. 557 of 2021 Salome Kahamba vs. Siril Augustine Mallya and Civil Appeal

No. 219 of 2019, Lim Han Yun and Another vs. Lucy Theseas Kristensen, where the Court held that a party who engages an advocate is obligated to actively follow up on their case's progress. Negligence in this duty cannot justify an extension of time in legal proceedings. He concluded by arguing that the respondents should not suffer for the applicant's negligence, as it was held in Makoye Juma Ndemela & 9 Others vs. Al-Hushdom Investment (T) Ltd. He argued that Section 3B of the Civil Procedure Code [Cap. 33 R.E. 2019], aimed at efficient proceedings, and that it shouldn't revive a dismissed application due to 14 negligence. On the allegations of plagiarism against the respondents' affidavits, he argued that the allegation lacks merit as the affidavits were properly drafted and verified. He prayed for the Court to dismiss this application with costs :for lack of merits. By way of rejoinder, the Applicant reacted that Rule 43(2)(i) of the High Court (Commercial Division) Procedure Rules, 2012 mandates that applications to set aside dismissal orders must be filed within fourteen (14) days from the date of the dismissal order and that the application to set aside and restore Miscellaneous Commercial Application No. 6288 of 2024 was due by April 28, 2024, following its dismissal on April 15, 2024. The application was timely submitted via the judicial portal and the fee was paid on

April 25, 2024, under Control Number 991401103910. He argued that it is well-established in precedent that the date of payment constitutes the filing date, as affirmed in cases such as JOHN CHUG VS ANTHONY SIZYA (1992) TLR, where it was held that "the date of filing a document in Court is the date of paying Court fees, not the date of document receipt." Regarding the issue of not annexing a PF3 and discrepancies in statements about attending hospital, the Applicant's counsel acknowledged the same and explained that they were due to the shock and circumstances 15 immediately following the accident, where it was impractical to think clearly. He submitted that he promptly informed the Court clerk and engaged a legal assistant to follow up on Court proceedings. On absence of the client, he argued that the scheduled hearing on April 15, 2024, was one for an application that did not necessitate the physical presence of parties of witnesses. According to Rule 43(1) of the High Court (Commercial Division) Procedure Rules, GN. No. 250 of 2012, and Order IX Rule 1 of the Civil Procedure Code (CAP 33 RE. 2019), either the party or their duly instructed advocate may appear for such hearings. The starting point is the position of the law. The Commercial Court provides under Rule 43 (now Rule 45 after the amendment of 2019) as follows: "43. -(1) Appearance ofparties and consequences

of non-appearance shall be regulated by the provision of Order IX of the Code. (2) Where the Court has entered an ex parte judgment or passed a dismissal order or any other order in accordance with Order IX of the Code, it shall be lawful for the Court, upon application being made by an aggrieved party within fourteen days 16 from the date of the judgment or the order, to set aside or vary such judgment or order upon such terms as maybe considered by the Court to be just." It is not disputed that the Applicant's application was dismissed for non-appearance of the Applicant and her advocate when the case was called for hearing at 9:30am on 15th April 2024. The question is whether or not the Applicant has provided justifiable reasons for her absence on that date. The Court record show that Miscellaneous Commercial Application No. 6288 of 2024 was set for hearing at 9:30AM on 15th April 2024. When it was called on for hearing neither the Applicant nor her Advocate was in attendance in Court. There was no excuse communicated by the Applicant's side for their non-attendance. The last time when the case was being scheduled for hearing, the Applicant's advocate was present in Court and therefore the Applicant was aware of the next hearing date on 15th April 2024 and the time set was at 9:30 AM. The case was dismissed for non-appearance of the Applicant and her Advocate, hence there

was want of prosecution of the Application. Now, the Applicant has brought the present Application seeking restoration of the dismissed application. The main reason advanced is motor 17 vehicle accident involving the applicant's Advocate Mr. Joseph Kalima Rashid who allegedly was involved in a motorcycle accident on that date while coming to attend the case in Court. To substantiate the occurrence of accident, Mr. Joseph Kalima Rashid, learned advocate has submitted a medical chit issued bySinza Health Center dated 16th April 2024 which shows that he was attended to at that hospital on 16th April 2024.1 have examined the medical chit presented in Court as annexture VS1. It only evidences that Mr. Joseph Kalima Rashid attended the hospital on 16th April 2024 but it does not prove occurrence of accident involving the said advocate on 15th April 2024. In other words, the medical chit would have been relevant if the case had been scheduled for hearing on 16th April 2024. It could have explained that sickness had prevented the learned advocate from attending the Court on the date set for hearing. If the learned advocate attended hospital on 16th April 2024, it doesn't mean that he was sick on 15th April 2024. At any rate, the affidavit of the Applicant does not indicate that he was sick on 15th April 2024. If the medical chit of 16th April 2024 was relied upon to show that

the sickness had started as early as 15th April 2024, then it would signify that prior to 16th April 2024, the Applicant's Advocate was not seriously sick on 15th April 2024 as to fail to attend the Court. If he was not in a critical health 18 condition as to need to attend hospital on 15th April 2024, for medical attention, then he was also not critically sick as to fail to attend an important Court business on 15th April 2024. In this application, the main reason advanced for failure to attend the Court for hearing on 15th April 2024 was occurrence of an accident. However, there was no evidence at all directed at establishing the communicated excuse namely occurrence of a motor cycle accident involving the Applicant's advocate. No Police Form No.90 or Police Form No.3 were tendered. Not even a photograph of the scene of accident was attached. No mention of the registration number of the alleged motor vehicle that was involved in the accident was made. No location of occurrence of the accident was given. Not a single witness who might have witnessed the occurrence of the accident filed a supporting affidavit to corroborate the narration by the Applicant's learned Advocate. The Court has taken note of the fact that if the alleged motor cycle accident which allegedly involved the Applicant's advocate was so serious as to prevent him from attending the Court, why there was

no evidence of any sort whether verbal or documentary to substantiate it? Why didn't the Applicant's advocate immediately attend hospital on 15th April 2024? I am convinced that the accident did not occur, and if it did occur it 19 was not so serious as to prevent the Applicant's Advocate to attend the Court. The Applicant has also relied on a text message printout allegedly he sent to the Court Clerk at 10:03 AM on 15th April 2024 notifying him of occurrence of the accident and his failure to attend the Court. On this argument, the learned counsel is not serious. Advocates do not send text messages to Court Clerks as the official mode of communication with the Court. It would be too informal mode of communication regarding Court business. To accept that mode of communication would trivialize and highly prejudice the business of Courts of justice. To say the least, no such allegedly communicated excuse entered in the record of the Court. At any rate, there was no supporting affidavit from the alleged Court Clerk to corroborate the allegation of a text message being sent to him. As the sole ground relied upon in this application was an alleged motorcycle accident involving the Applicant's counsel, and as there is no iota of evidence led by the Applicant to substantiate the occurrence of the accident, I find that the Applicant has not justified by her good cause absence on 15th

April 2024 when the case was called for hearing. I decline the prayer to set aside the dismissal order or restore the dismissed 20 Miscellaneous Commercial Application No. 6288 of 2024. As there was no justification for absence of the Applicant on 15th April 2024, I find it unnecessary to address the other arguments advanced by both counsel on the appropriateness or otherwise of the application and the prayers sought. These will be inconsequential to the application at hand. In the upshot, the application is dismissed with costs. This Ruling is delivered in Court this 26th day of July, 2024 before Hon. K. J. Ndomba AG. Deputy Registrar, in the presence of Mr. Joseph Kalima Rashid Advocate for the Applicant and Mr. Noel Mosha advocate for the Respondents. K. J. NpOMBA AG. DEPUTY REGISTRAR. 26/07/2024 21