Kogel Fahrzeugwerke versus Liberty Transcargo Limited; Misc Commercial Application No 288 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Counter – claim – the Plaintiff fails to file written statement of Defence to Counter – Claim – application for extension of time within which to file defence dismissed -the court enters default judgment to the Counter – claim -whether the court can entertain an application to set aside the default judgment.
- Functus Officio – an application for extension of time within which to file defence to counter – claim dismissed – default judgment entered – Application to set aside the default judgment lodged – whether the court is functus officio.
Held:-
(i) Under the Commercial Court Rules, when an application for extension of time within which to file defence is dismissed and a default judgment is entered, the Court can still entertain an application to set aside the default judgment under Rule 22 (1) of the Rules. The Court enjoys inherent powers to set aside such default judgment on showing cause by the Applicant for his failure to file the written statement of defence (Comments: In our view, it is failure to file written statement of defence that prompted the Court to enter default judgment. An application for extension of time within which to file defence having been dismissed, we feel that the only remedy is to appeal against the division that dismissed the application for extension of time and not to make a fresh application in the same court to set aside the default judgment).
(ii) The maxim functus Officio is that no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. This maxim is based on the principle of law that once a matter is finally disposed of by a Court, the said Court, in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a prayer with the same relief unless formal order of final disposal is set aside by the Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment a final order disposing of the case is signed.