AMANI PARTNERS LTD VS KHURRAN IQBAL COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE No. 24 OF 2017 1 AMANI PARTNERS LIMITED........................................... st PLAINTIFF SYED SAADUR RAHMAN................... ............... .......... ...,2nd PLAINTIFF VERSUS KHURRAN IQBAL MAQBOOL CHAUDARY............. ...... ....1st DEFENDANT KIRMAT MAQBOOL CHAUDARY NOORMOHAMED......... 2nd DEFENDANT MYM AFRICA LIMITED.................... ■.............................3rd DEFENDANT 23/11&05/12/201^ RULING MWANDAMBO, J On 16th October May 2017 Mruma, J acting in his capacity as a mediator invoked rule 36 (a) of the High Court (Commercial Division) Procedure Rules 2012 (the Rules) by striking out the defendants" written statement of defence for failure to appear on the date set for mediation. That meant in effect that the suit was to proceed . ex parte before the trial judge. After a number of adjournments, on 17th May 2018, the Court ordered the hearing to proceed ex parte. However Songoro, J (then trial judge) could not stay tong enough to proceed with hearing and so the file was assigned to me to proceed from the stage he had reached. Two months later, on 17th July 2018, Hilton Attorneys learned Advocates representing the defendants wrote a letter Ref. No. HLT/2018/17/7 drawing the Court's attention regarding non-compliance with rule 49 (2) . of the Rules asking the Court to make an appropriate order by reason of the said non compliance. Initially, the learned Advocates had filed in this Court Miscellaneous Commercial i Application No.162 of 2018 for restoration of the defence. I heard the application on 7*” November 2018 and reserved my ruling to today. In the meantime I perused the defendant's Advocates' l etter referred to earlier through which it became apparent that i ndeed the plaintiffs did not comply with rule 49 (2) of the Rules by filing their witness statement(s) within seven days following termination of mediation. Accordingly, on 23rd November 2018, I invited the learned Advocate for the Plaintiff to address me on the consequences of such non compliance with rule 49 (2) of the ■ Rules. This ruling addresses that aspect. Mr. Onesmo Mpinzire learned Advocate for the plaintiffs conceded that indeed a witness statement was filed way beyond 7 days from the date when mediation was recorded to have failed before the mediator. The learned Advocate conceded too that the consequences flowing from non-compliance with rule 49 (2) of the Rules is to strike out the witness statement. However, like any other god soldier, the learned Advocate impressed upon me that notwithstanding the striking out the witness statement, it was still open to the plaintiffs to apply for extension of time to file the same more so since there will be no prejudice to the defendants whose defence was long struck out. The learned Advocate invited me to have regard to rule 50 of the Rules which gives power to the Court to determine the manner of receiving evidence which would mean that the Court can order oral hearing. Stressing the point, the leaned Advocate drew my attention to a recent decision of the Court of Appeal in Yakobo Magoiga Gichere vs. Peninah Yusuph, CAT (MZA) Civil Appeal No.55 of 2017 (unreported) which underscored the need for Courts to have regard to the overriding objective in the . administration of the rules of procedure giving paramount emphasis to substantive justice. As the record will reveal, mediation was recorded to have failed on 16th October 2017 which set in motion the requirement to- file witness statements 2 within seven days in pursuance of rule 49 (2) of the Rules. However, it was not until 15th May 2018 when the Plaintiffs filed their witness statement. That was period of about Six months from the date on which the plaintiffs ought to have filed their witness statement. I have scanned through the record and could not find any evidence of any order extending the time within which to file the witness statement. The record reveals that for a good part of the time after the termination of mediation, the learned Advocates for the plaintiff were absent and on the days when they were present no attempt was made to apply for extension of time to file a witness statement. Indeed, it would appear that the plaintiffs' failure to file the witness statement and he late filing of it eluded my brother's eyes for had it been otherwise, he would perhaps not have made the order for ex parte proof as he did. Notwithstanding the foregoing, the learned Advocate invited me to find that the plaintiffs have a right to apply for extension of time to file their witness statement. That may be so but there is no such application for extension of time before me now and so I cannot be detained by such an argument. Had the plaintiffs' advocate found it appropriate, he would have done so before the Court's attention was drawn to the default. I appreciate the ingenuity by the learned Advocate that the Court can still invoke rule 50 of the rules by determining the manner in which evidence has to be given. However, rule 50 of the Rules gives that power to the Court at a final pre-trial conference by giving directions as to, among others, the way in which any matter has to be proved. As the learned Advocate will appreciate, the Court is not conducting any final pretrial conference now. At any rate, I hold the view that rule 50 of the Rules cannot be an escape door for a party who has defaulted to file a witness statement within the time prescribed under rule 49 (2) of the same Rules. I am fortified in this view by an old Latin maxim which goes: Vigilantibus non 3 dormientibus jura subveniut which literally means that the law assists the vigilant and not those who sleep. I can do no better explaining the application of the maxim than quoting Lord Selborne in Lindsey Petroleum Company V. Hurd where his Lordship is quoted to have stated: "The doctrine of laches in Court of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has by his conduct done that . which might fairly be regarded as an equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material." That statement i s to be found from P.S. Nayarana's Law of Injunctions, 5th Edition, Asia Law House, Hyderabad at p.25. Quite unfortunate to the plaintiffs the Court cannot be so generous in cases of non-compliance of such magnitude to bend the Rules and assist them in the manner prayed for by the learned Advocate even by resorting to the overriding objective discussed by the Court of Appeal in Yakobo Magoiga Gichere vs. Peninah Yusuph(supra). I appreciate the fact that the Plaintiffs filed their witness statement on 15th May 2018 but the filing of it way beyond the prescribed period without . prior Court's leave was an exercise in futility. In other words, the filing cannot cure the default and so the plaintiffs are taken to have waived their right to prosecute the case thereby placing themselves in the same position as a litigant who has not filed any in Court. Having so said the next question is on the consequences flowing from the failure to file a witness statement. 4 It is trite under rule 49 (1) of the Rules that proceedings commenced by plaint, evidence in chief has to be given by a statement on oath or affirmation that is to say; by way of a witness statement prescribed under rule 48 of the Rules. In other words, prosecution of the plaintiff's case starts with the filing of witness statements which serves as evidence in chief. In my view, failure to file a witness statement is tantamount to failure to produce a witness for trial in ordinary trials governed by the CPC. Since the plaintiffs have not filed their witness statement they are taken to have failed to prosecute their case and so the consequences flowing from such failure must follow that is to say; dismissal of the suit for want of prosecution. In the event, the suit is dismissed for want of prosecution with no order as to costs. Order accordingly. Dated at Dar es Salaam this 5th day of December 2018 5