Solvochem East Africa Limited vs Jielong Holdings Tanzania Limited (Civil Appeal No. 671 of 2023) [2025] TZCA 984 (22 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: MWARIJA. J.A.. KENTE. 3.A. And ISMAIL. J.A.1 ) CIVIL APPEAL NO. 671 OF 2023 SOLVOCHEM EAST AFRICA LIMITED......................................APPELLANT VERSUS JIELONG HOLDINGS TANZANIA LIMITED............. ............. RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Mgggiga, 3.) dated 24th day of September 2021 in Miscellaneous Commercial Case No. 65 of 2021 JUDGMENT OF THE COURT 25th June & 22n d September, 2025 MWARIJA. J.A.: The appellant, Solvochem East Africa Limited, was the plaintiff in the High Court of Tanzania, Commercial Division (the Commercial Court) in Commercial Case No. 65 of 2020 (the suit). The suit arose from a dispute over payment of goods supplied to the respondent, Jielong Holdings Tanzania Limited who was the defendant in the Commercial Court. In the plaint, the appellant claimed for USD 100,000.00, the value of the supplied goods, interest and specific damages. It also claimed for costs of the suit. The appellant contended that, the dispute involved the invoices raised and received by the i

respondent but despite having made several follow-ups, the latter failed to settle the outstanding amount. By its written statement of defence, the respondent did not deny that, it owed the appellant the value of the supplied goods, which stood at USD 60,260.00, as per paragraph 4 of the plaint. It contended further that, it had been willing and ready to pay but the appellant wanted to be paid an amount which was above the value of the supplied goods. It disputed the claims based on the plea that, it had refused to pay for the actual value of the supplied goods. When the appellant was served with a copy of the written statement of defence, its learned counsel filed an application under Orders XII rule 4, XLIII rule 2 and section 95 of the Civil Procedure Code, Chapter 33 of the Revised Laws, moving the Commercial Court to enter judgment in admission at the tune of USD 60,260.00. The relevant application was Miscellaneous Commercial Application No. 157 of 2020. After having heard the parties' advocates, the learned trial Judge granted the application and entered a judgment in admission, awarding the respondent USD 60,260.00 as prayed. He observed that, the remaining claims would be determined after hearing evidence from the parties. 2

On 3/5/2021, when the suit was called on for the 1s t pre-trial conference, neither the appellant nor its advocate entered appearance. On its part, the respondent was represented by Mr. Kulwa Leonard Shishi assisted by Ms. Gloria Mkulila, learned advocates. Mr. Shishi moved the court under rule 31 (1) (a) of the High Court (Commercial Division) Procedure Rules, 2012 (hereinafter the Commercial Court Rules), urging the court to dismiss the remaining claims for the appellant's non-appearance. The trial court (Magoiga, 1) acceded to the prayer and dismissed the disputed claims with costs as prayed. The order aggrieved the appellant and thus invoking rule 31 (2) of the Commercial Court Rules, filed an application; Miscellaneous Commercial Application No. 65 of 2021 seeking an order setting aside the dismissal order. The cause which was advanced by the appellant's counsel for the failure to appear on 3/5/2021 was that, on that day, Mr. Tumaini who was the appellant's counsel, was appearing at the High Court, Land Division in Land Case No. 408 of 2016 between Dr. Malima Malangalila and Beatus Malima & Kinondoni Municipal Council, which was before Masoud, J. (as he then was). According to Mr. Tumaini, his absence was, for that reason, due to the factor beyond his control. He submitted further that, the Land Case was 3

involving and due to his engagement in preparing himself for that case, he failed to notify the Commercial Court about his inability to appear before it. The application was opposed by the respondent. Mr. Shishi, who represented the respondent, argued that, on 3/5/2021, the appellant's advocate did not appear without notifying the Commercial Court the reason for his absence. He challenged the contention by the appellant's counsel that, he could not notify the trial court about his non- appearance because he was engaged in the High Court, Land Division. According to the learned counsel, the reason that Mr. Tumaini was engaged in the preparation for the Land Case was not a sufficient cause. In his ruling, the learned trial Judge was of the opinion that, the absence of the learned counsel for the appellant on the date on which the contested claims were dismissed, was without a sufficient cause. He found, first, that, the learned counsel had sufficient time to notify the Commercial Court, between 25/3/2021 when the hearing of the suit was adjourned until on 3/5/2021, the date on which the case was called on for hearing. Secondly that, given the short distance between the two courts, the learned counsel could utilize the short adjournment 4

of the case in the High Court, Land Division to walk to the Commercial Court and give notice of his inability to appear. He referred to the copy of the proceedings of High Court, Land Division which was annexed to the application, showing that, on the material date, the case was adjourned for 15 minutes. Thirdly, the learned Judge observed that, the last time when the Land Case was adjourned on 8/4/2021 and fixed for hearing on 3/5/2021, the learned counsel was aware and could therefore, have taken the necessary action to ensure that, the appellant was represented in court. On all these facts, the learned Judge found that, the absence of the learned counsel was due to negligence. He thus refused the application to set aside the dismissal order and consequently, dismissed it with costs. The appellant was aggrieved hence this appeal which is predicated on one ground, that: "His Lordship, the triat Judge erred in both fact and law in making a finding that the appellant failed to make a case for setting aside the order dismissing Commercial Case No. 65/2020 while the trial court was presented with sufficient evidence substantiating [the] grounds for non- appearance by the [counsel] for the appellant"

Both the appellant and the respondent filed their written submissions in support of the appeal and the replies thereto in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, respectively. At the hearing of the appeal, the appellant was represented by Mr. Jerry Msamanga while the respondent was represented by Ms. Faiza Salah, both learned advocates. Submitting in support of the appeal, the learned counsel who prepared and filed the appellant's written submissions, Mr. Denis Tumaini, reiterated the cause stated in the Commercial Court for the failure by the appellant's counsel to enter appearance on the date on which the contested claims were dismissed. He contended that, on 25/3/2021, he fell sick and could not, for that reason, appear in court. That was when the judgment in admission was entered by the Commercial Court. Since, however, in this appeal, the appellant did not challenge the judgment in admission but the decision in which the court refused to set aside the dismissal order dated 3/5/2021, the submissions on Mr. Tumaini's failure to appear on 25/3/2021, are in our view, misconceived. We find therefore, that the submissions are of no useful purpose in the determination of the appeal and thus the need for considering the same does not arise. 6

As for his non-appearance on 3/5/2021 when the contested claims were dismissed, he reiterated that, he was appearing before Masoud, J. (as he then was) in the High Court, Land Division. He stressed that, the case, for which he was appearing; Land Case No. 438 of 2016, had been fixed to be heard for two consecutive days because it was a backlog matter. He reiterated that, the case was engaging and for that reason, he devoted much of his time on it to the extent of failing to take any necessary action as regards the commercial case. He stated as follows: "The counsel for the appellant found himself occupied to not being able to act or set action in favour o f the proceedings in Commercial Case No. 65/2020/' On the finding by the learned trial Judge that, the learned counsel could have utilized the adjournment time of 15 minutes given by the High Court, Land Division for break, to rush to the Commercial Court to seek adjournment, it was his submission that, the time was insufficient to do so. According to the learned counsel, since the cause of his non-appearance was because he was appearing in another court, the trial court should have found that, his absence was due to a sufficient cause.

Clarifying the appellant's written submissions, Mr. Msamanga argued that, the reasons for Mr. Tumaini's failure to appear on the date when the contested claims were dismissed, amounted to a sufficient cause. He cited the case of Loshilu Karaine and Others v. Abraham Melkizedeck Kaaya (Civil Appeal No. 534 of 2020) [2024] TZCA 93. He argued further that, Masoud, J. (as he then was) was senior to Magoiga, J. and therefore, the learned counsel was justified to give preference to the case in the High Court Land Division. In response, the respondent opposed the submissions made in support of the appeal. Through the reply submissions drawn and filed by Mr. Gaspar Nyika and Ms. Samah Salah, learned advocates, the respondent submitted that, the learned trial Judge correctly found that, the absence of the learned counsel for the appellant on 3/5/2021 was without a sufficient cause. The learned counsel argued that, the appellant's counsel ought to have furnished a sufficient reason to justify his non-appearance as observed in the case of Nasibu Sungura v. Peter Machumu [1998] TLR 496. It was submitted further that, the Commercial Court did not err in its finding that, the absence of the appellant's counsel on 3/5/2021 was without a sufficient cause because the learned counsel had ample time to notify the Commercial Court that, he had to appear in another court but failed to 8

do so. It was argued further that, because the learned counsel for the appellant was aware since 8/4/2021 that Commercial Case was to be heard on 3/5/2021, he had ample time to give notice about the situation of having the two cases on the same day. The learned counsel relied also on rule 46 (2) (c) of the Commercial Court Rules, which prohibits adjournment of a case on the ground that, an advocate is appearing before another court unless he is appearing before a superior court. Submitting orally in clarification of the respondent's written submissions, Ms. Salah contended that, although it is a correct position that, when an advocate is in the conduct of more than one case in the same day before different Judges, he is required to appear first, before the senior Judge, the learned counsel has the duty of notifying the other courts about his predicament. From the ground of appeal and the submissions of the learned counsel for the parties, the only issue for our determination is whether the absence of the learned counsel for the appellant on 3/5/2021 was due to a sufficient cause. To succeed in its application, the appellant's counsel was required to establish that, his absence was due to a factor beyond his control. See the case of Yusuf Same and Another v.

Hadija Yusuf, Civil Appeal No. 1 of 2002 (unreported) in which the Court stated that: "It should be observed that the term 'sufficient cause' should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the applicant's power to control or influence resulting in taking any necessary step . " [Emphasis added]. It was not disputed that on 3/5/2021, when the suit was called on for first pre-trial conference neither the appellant nor its counsel was present. The absence of the appellant or its counsel was without any notice communicated to the court. Consequently, the learned trial Judge invoked rule 31 (1) (a) of the Commercial Court Rules and proceeded to dismiss the contested claims. Rule 31 thereof states as follows: "31 - (1) Where at the appointed for the pre-trial conferencer one or more o f the parties fails to attend, the Court may- (a) dismiss the suit or proceedings; 10

(b) strike out the defence or counterclaim; (c) enterjudgment" [Emphasis added]. As shown above, the application to set aside the dismissal order was unsuccessful. The Commercial Court found that, the absence of the appellant's learned counsel was without a sufficient cause. In our considered view, the learned trial Judge cannot be faulted on that finding. The reasons given by the counsel for the appellant, that he could not appear because on that date, he was appearing in the High Court, Land Division was properly found to be unacceptable. There was no dispute that, the learned counsel for the appellant had a prior notice that, a first pre-trial conference in respect of the suit was to be conducted on 3/5/2021. He did not appear, without any communication to the court. Apart from such failure, which warranted the dismissal of the contested claims, we also agree with Ms. Salah that, the reason advanced by the appellant's counsel for Mr. Tumaini's non-appearance because he was appearing in the High Court, Land Division before a Judge who was senior to Magoiga, J., is not a sufficient cause. Under rule 46 (1) (c) of the Commercial Court Rules, absence of a counsel is li

excusable only when he appears in a superior court. That provision states as follows: " 46 - (1 )..., ( 2 )..~ (a).... (b)-~ (c) the fact that the advocate o f a party is engaged in another court, shaii not be a ground for adjournment unless that advocate is appearing before a superior court." In this case, the court which is superior to the High Court is the Court of Appeal. In the circumstances, the learned counsel ought to have made arrangements with his client so that it could appear in person through its principal officer or another advocate because, in terms of the above cited provision of the Commercial Court Rules, the reason for his non-appearance was unexcusable. Thus, with respect, we find that, there was inaction on the part of learned counsel for the appellant, who had the notice of the date of the first pre-trial conference since 25/3/2021. We find that the answer to the issue is in 12

the negative; that his non-appearance on 3/5/2021 was without a sufficient cause. For the foregoing reasons, we find no merit in the appeal and as a result, we hereby dismiss it with costs. DATED at DODOMA this 19th day of September, 2025. A. G. MWARD A JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 22n d day of September, 2025 in the presence of the Mr. Jerry Msamanga, learned counsel for the appellant and Ms. Faiza Salah, learned counsel for the respondent connected via video conference and Soud Omary, Court Clerk, is hereby certified as a true copy of the original. 13