National Bank of Commerce vs Sigasbert Makorongo t/a Small Scale Enterpreneous (Civil Case No. 37 of 1991) [1999] TZHC 89 (14 September 1999)

... .. IN THE HIGH COURT OF TANZANIA ' (DAR ES SALA;M DISTRICT ·REGISTRY) AT DAR ES SALAAM .. CIVIL CASE NOo37 OF 1991 NATIONAL BANK OF COMMERCE eooooooooaooooo PLAINTIFF Versus SIGASBERI' MAKORONGO t/a SMALL SCALE) ENTERPRENEOUS DEFENDANT R U L I N G CHIPETA 9 Jo : This is an application for the following prayers, namely, an order setting aside the judgment etered ex-parte for the defendant in respect of the counter-claim, and an order setting aside a dismissal of the aplicant•s a~plication for extension of time to file a reply to the respondentvs counter-claimo ~he ba-ekgrcra.nd of the matter is that the applicant, Na.tional Bank of Commerce, filed a suit against the respondent, Sigsbert SefuMakorongo t/a Small Scale Enterpreneours. The ·respondent denied the claim and filed-a counter-claim. • • On 30th October, 1998, the matter came up for hearing of an application by the plaintiff for extension of time in which to file a reply to the counter-claim. The applicant/plaintiff was absent and so i the application was dismissed and an ex-parte judgment entered, .. for the r l . •'i

2 defendant/respondent on the counter-claimo Hence the _present application. The application was filed under sections 93 and 95 of the Civil Procedure Code. The respondent raised a preliminary point to the effect that the application was incompetent,as it had been made under wrong nrovisions of the lawo I have carefully considered the imbmissions of the partieso As to the preliminary objection, I see no merit in it as section 93 of the Code is a proper enabling lawe It provides as follows:- ''Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, ,from time to time~ enlarge such period,even thoi1gh the period· originally fixed or granted may have expired 0 ii As to the merits of the ap-plication, I have care_fully considered the contents of the affidavit and counter affidavito In my view, there is no reason·· for disbelieving who.t leorned counsel for the applicant has stated in her affidavit. In the circumstances, it would not be fair to say that learned counsel was negligent or lacked seriousness. For these reat: __ ins, this applic8tion is hereby granted. The dismissal order as well as the ex-parte judgment are hereby set aside. Costs shall be in the causeo JUDGE . ,l".":i'. I

'Y1""""'" . , . 3 Ruling delivered in Chambers thj s 1li-th day of September, 19990 JUDGE Mso KaP-Ombora~ for applicant - Absent Respondent~ In person 14/9/99: Coram: BoDo Chipeta, Jo Applicant: Absent Respondent: In person Order: Reply to the counterclaim to be filed by 30/9/990 Mention in chambers on 1/10/990· B. D. CHIPETA JUDGE Y±/9/1999 t. 'I '