AMC TANZANIA LTD v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 9319 OF 2024 AMC TANZANIA LTD (NISSAN) …………….…………… PLAINTIFF VERSUS BRICE TANZANIA LIMITED …………..…………….…… DEFENDANT RULING Date of last order: 24/10/2024 Date of ruling: 25/10/2024 AGATHO, J.: This ruling concerns an oral prayer made yesterday which was the date fixed for trial by the plaintiff’s counsel seeking an extension of time to serve the defendant with a witness statement. The prayer was resisted by the defence counsel on the ground that the plaintiff ought to have made a formal application for extension of time prior to the date of hearing of the suit. In this suit the Plaintiff’s counsel is Jackson Mgonja. And for the Defendant is Mr Yassin Maka, Advocate. The record of proceedings shows that each party to the suit will bring one witness at tria;. Having conducted the final Pre-trial conference the court ordered the witness statement to be filed by 17th September 2024. 1 It is also on record that on 24th October 2024, yesterday, the suit was set for hearing. On that day, Mr Mgonja, submitted that the matter was set for hearing. He also submitted that they filed the witness statement electronically on 17th September 2024. He further said that they paid the filing fee on 2nd October 2024. He admitted in his submission that they delayed payment of the filing fee because there was a delay in issuing the control number. Mr Mgonja admitted that he does not have any evidence to show that the issuing of the control number was delayed. Thereafter, the plaintiff’s counsel submitted regarding service of the witness statement on the defendant. He conceded that rule 49 of the High Court Commercial Division Procedure Rules requires that the witness statement be served upon the opposite party before the date of hearing/trial. He told the court that they failed to serve upon the defendant timely. He narrated that from 2nd October 2024, the date of payment of filing fee of the witness statement to the date of hearing (24th October 2024) there are 22 days lapsed. He reiterated that they filed the witness statement on 17th September 2024, but they delayed in paying its filing fee. He went on pointing out that they were afraid or they suspected that if they serve upon the defendant, she might raise a Preliminary Objection that they have not filed the witness statement on time. Mr Mgonja submitted that until 24th October 2024, yesterday,they have not served upon the defendant with the witness statement. As to why the plaintiff has not filed a prior application for extension of time to serve the witness statement upon the other party, Mr Mgonja submitted that they had thought they could apply for extension of time orally 2 on the date fixed for trial. He submitted further that the trial was fixed for three days. He thus prayed to serve the witness statement to the defendant on that date fixed for hearing. He insisted that they are praying for extension of time to serve upon the defendant with witness statement. It was his argument that for interest of justice the trial should be adjourned to another date to enable the defendant to go through the witness statement that shall be served upon her today, 24th October 2024, the date fixed for trial if the court grants extension of time. That marked the end of submission in chief. Mr Maka for defendant from the outset opposed the prayer for extension of time. He submitted that the plaintiff lacks seriousness sand diligence in prosecuting this matter. He recalled that on 30th July 2024 this court gave an order that the witness statement shall be filed by 17th September 2024 and hence the same shall be served on the other party within 14 days from the date of filing. The defence counsel reacted to the plaintiff’s claim that they filed witness statement on 17th September 2024 and paid the filing fee on 2nd October 2024. According to Mr Maka, this shows a lack of diligence. He also brought to the attention of the Court that as a coincidence the defendant filed her witness statement on 17th September 2024 and paid the filing fee on the same date. And served upon the plaintiff by one or two days later. He refuted the plaintiff counsel’s claim that they suspected that the defendant would raise a PO and hence they decided not to serve upon her with the witness statement. In Mr Maka’s view, that ground is frivolous and unconvincing. To buttress his submission, Maka cited rule 55 of the HCCD Procedure Rules 2012 as amended by rule 29 of the HCCD Procedure Rules, 3 2019 that made it mandatory that failure to effect service of witness statement on the other party renders the witness statement liable to be struck out. Regarding the point of extension of time, Maka submitted that the plaintiff ought to file a formal application for extension of time. it was his opinion that the plaintiff ought to file a chamber summons and affidavit, and adduce all grounds supported by evidence for the court to ascertain and exercise its discretion judiciously. It was his reply submission that the court is not in that position now. He warned that the court cannot rely on suspicion by the plaintiff, as that will not be just to the defendant. And he was of the firm view that there is not any formal application for extension of time in which grounds can be raised and proved. Maka submitted that the plaintiff’s witness statement ought to be struck out for failure to serve the same upon the defendant. He lamented that until the date of hearing the defendant has not been served with the plaintiff’s witness statement. He concluded by praying that the witness statement be struck out. If that is done, it was Maka’ view that the case will have no evidence to support, and he prayed that the case be dismissed with costs. In rejoinder, Mr Mgonja for the plaintiff rejoined that the counsel for the defendant stated that the witness statement must be served upon within 14 days from the date of filing. He argued that the law (rule 49 of the HCCD Procedure Rules 2012) says that the witness statement shall be filed within 14 days from the date of final PTC and have them served in accordance with court directive. He responded that the rule does not say that it has to be served within 14 days. He stressed that the witness statement has to be 4 served in accordance with court directive. Therefore he prayed that the court be pleased to extend time to enable the plaintiff to serve the witness statement to the defendant. He beseeched the court that since, the service will not affect the scheduling order of the court they be granted extension of time to serve upon the defendant with witness statement so that the trial can proceed. Further to that he submitted that since the law does not state the time for service, that has to be done in accordance with court directives. That was the end of submissions by the learned counsel. I took keen interest in the parties’ submissions regarding plaintiff’s oral prayer for extension of time to serve the defendant with the witness statement. Before delving into the law, it should be made clear that the oral application for extension of time to serve the witness statement upon the defendant came too late. It came on the date fixed for hearing. Moreover, the plaintiff had ample time to file formal application for extension. I must state here that to move the court on oral application ought to be in emergency situations only. There was no emergency in the case at hand. I am holding so because the plaintiff submitted that he filed the witness statement electronically on 17th September 2024, but the control number was delayed. And they got the control number on 2nd October 2024. There is no evidence to confirm this. Besides, the plaintiff filed her witness statement on the same date and she got the control number. What is more wanting is the claim that the plaintiff suspected that the defendant will raise a PO after having observed that the plaintiff has failed to serve her with witness statement timely. In my opinion, this is a mere suspicion which cannot convince any court properly exercising its mind. 5 Now, turning to the law rule 55 of HCCD Procedure Rules 2012 as amended by rule 29 of HCCD Procedure (amendment) rules of 2019 provides that: “where the statement of an intended witness is not served on the other party within the times prescribed by these rules the statement shall, unless the court extends time for such service be struck out.” In this suit prior to the date of hearing no application for extension of time for service of the witness statement to the other party was sought. The plaintiff had 21 days counting from 2nd October 2024 to 23rd October 2024 to make formal application for extension of time. She chose not to do so. It is alarming that the plaintiff had engaged services of a learned counsel Mr Mgonja. The laxity exhibited here is beyond comprehension. It is the law as pronounced by this Court and the Court of Appeal, for instance Court of Appeal in Bharya Engineering and Contracting Co. Ltd v. James Alan Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 (unreported) that for an application for extension of time to succeed an applicant must account for each day of the delay. Nothing of the sort has been done here. The plaintiff has not accounted for each day of the delay. In fact, the plaintiff’s counsel clearly submitted that they were waiting for the day of the hearing to appear and make an application for extension of time. They also said they were waiting for the control number to pay for the witness statement’s filing fee. But that again does not explain why they did not make a formal application for extension of time to serve the defendant 6 with the witness statement. I am afraid not even overriding objective under Section 3A and 3B of the Civil Procedure Code [Cap 33 R.E. 2019] can rescue a clumsy litigant as the plaintiff. That said I have not been convinced that the court discretion to extend time can be exercised in the circumstance of the present application. There is nothing concrete the plaintiff has brought before this court to prove that the extension of time is worth granting. I thus decline to grant the extension of time to serve the defendant with the witness statement. In my view, to grant such prayer is tantamount to condoning negligence and a clear violation of rule 55 of the HCCD Procedure Rules 2012 as amended by rule 29 HCCD Procedure Rules, 2019. Consequently, the witness statement of the plaintiff which has not been served upon the defendant up to the date of hearing is struck out. Before penning off, I find it pertinent to say a word or two on the defendant’s prayer that the suit should be dismissed because the plaintiff has not any witness statement on record. It is my humble view that this prayer is premature. Having struck out the witness statement does not follow that the suit is dismissed. The court has to hear the parties before such holding. For the foregoing reasons the prayer for extension of time to do service of witness statement to the defendant is decline. The plaintiff witness statement is struck out. No order as to costs is given. Order accordingly. DATED at DAR ES SALAAM this 25th Day of October 2024. 7 U. J. AGATHO JUDGE 25/10/2024 Court: Ruling delivered today, 25th October 2024 in the presence of the parties. U. J. AGATHO JUDGE 25/10/2024 8