Bin Kleb Bus Service vs Agip Tanzania Limited (Civil Case No. 102 of 1994) [1998] TZHC 2168 (26 October 1998)

IN TI-E IUGH COURT OP T!u'/;ANIA (DAR ES Si.Li'WJi DISTRIC'l' .REGI.STRY) A'r.:pAR ES SALAAM CIVIL CASE NO1O2 OF 1994 BIN KLEB BUS BERVIG.LC o oo o o oo oo 000000 o oo o oo Versus AGIP TANLiii.NI/.i. LIMITED 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o.o O O O 0 ., ·•, R U L I N G ,..;....,, PLAINTIFF DEFENDANT This is a Ruling in an application by the judgment-debtor, J\GIP (T) Li1?ited (hereinafter referred to as the applica11.ts) praying for an order ·to set aside the iarte judgment entered by this court in favour of the decree-holder,. Bin Kleb Bus Service (hereinafte:· referred to as the respondents). on 9th October, 19970 . The application is supported by an affidavit of one Shangwe Joel Mdundo, who described himself as an officer of th applicants assisting the applicants' managing director in legal matters. In that affidavit, it is stated that the summons was not served on the applicants in sufficient time for them to in.struct an advocate to appear and defend the suit as the applica.>its do not have an in-house advocate 1 that the managing director was away at the material time; that the relevant case file was with their previous advocate wh had t ' . withdrawn from the su"i t; that the· new advocates,' whbm they contacted, eeded to study the case but could not·· do so because the file was not available and so they could not appear and pray for an adjournment, that the deponent came to court premises but got lost,before fina1ly'locating the relevant • I Chambers only to. find ·tha.t poceedings: Lha~lrea.dy started and he -Jas too scared to intervene; and that the case invoiyeci a lot of moneyo .,. ··i· ' . . •:- .. 1 I '

• 2 In a counter affidavit of learned counsel for the respondents_, it was stated that on 21st May, 1997, the previous advocates for the applica11ts prayed for the case to be placed before a judge so that the advocates could . 1 make an application to withdraw from the case, nnd so the applicants were aware of the need to instruct another counsel then; that the applicants had adequate time in that leave for the previous advocates to withdraw was granted on 17th June, 1997; that on 1st july, 1997, the depone!1 t of the affidavit specifically requested Mr. Luoga, learned councel for the respondents, before the District Registrar, to hold brief for the applicants for the purposes of fixing a hearing date and so 30th September, 1997 was fixed as the hearing date; that time for engaging counsel started run three months prior to 26th September, 1997; that since the applicants did not state that their previous advocates did not inform them of their withrawal, the applicants were aware of the state of affairs but were negligent in failing to collect the file in good time; and that in the circumstances, no good cause had been shown for granting the application. With the permission of the court, the parties' advocates filed written subuissions. I need not reproduce them, but 1 will refer to th~m as I go along in the course of this Ruling. It is, I think 9 well settled that under Order 9 9 .Rule 13 of the Civil Procedure Code, a Judge has discretion to grant the application or not. But this being a judicial discretion, it must bd judicially exercised. ,, (See Mbogo v. Shah, (1968) E.A. 93, 95). In determining the matter, the court will look at it in the light of all the facts and circumstances both prior and subsequent and the respective erits of the parties so as to determine whether it would be just and reasonable to rant or refuse the application. (See Kimani v. Mc Connell, (1966) E.A. 547). In Mbogo said (supra) the Court added at page 96: "Delay and its possible effect in relation to witnesses are, of course, factors to be borne in mind in determining whether, lookd at as a whole, the justice to the case requires that the case be re-opened so as to try it on its meri ts· 1 • t

.. . } 3 I will start with the service of the summons. It is said that the service of the summons on the applic::m.t on 25th September, 1997, was not done in sufficient time for the applicant to instruct an advocate to appear and defend. I find this allegation startling. As pointed out by learned counsel for the respondents, tl).e applicants were awnre on 21st May, 1997, that they would need to instruct another counsel when their previous ones asked for a m_ention in chnmbers so that they could withdraw from the conduct of the applic3.11ts 1 case. That withdrawal was granted on Q7th June, 1997. What is more,it is in the evidence of the respo- ndents, which I accept to be true, that when the case came before the Registrar on 1st July, 1997, the applicants v depon-:mt w9-s p1·csent and asked respondent's counsel to hold the applicants' brief for the purposes of fixing a hearing d~te • That being so, the question of insufficient time to instruct an advocate did not arise at all! Bven assuming, for the sake of argument, that they had less than five day's notice, which is not the case, the applicants could have appenred in person if they were serious. It is stated by the deponent that he came to tho court prerr,_ .. -es and got lost before locating the correct charibers. Assuming that that statement is correct, surely the deponent should have consulted the cause list or made inquiries in the civil registry in good and sufficient time for hi □ to appear at 9.00 a.m. if he had been diligent. For chese reasons, having regard to all the circumstances, I am not persuaded that the applicants have shown sufficient cause for their non-appearance on the date the case was fixed for hearing. This application is accordingly hereby dismissed with costs. (' ·.: ,.·.,. :/ ' j ~. B. D. 'mfrp,::;;I'l,. I - JlJDGB Ruling delivered in Court this 26th day of October, 1998. Mr. Ny,.mge: Mr. Luoga: for c::.pplic-an.to for respond,mt. ... B. D. CEIP8TA JUDGE