RULING Arufa and Family Company Limited vs Ibrahim Joram Mbogoye

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000004081 OF 2025 ARUFA AND FAMILY MINING COMPANY LIMITED .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS IBRAHIM JORAM MBOGOYE .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 18/03 & 04/04/2025 When Land Case No. 10866/2024 was instituted, the applicant who was the 1st respondent, could not file a Written Statement of Defence (WSD), within a prescribed time. A seven-day extension was granted by this Court for the applicant to file a WSD. The applicant, unfortunately, failed to comply. In this application, filed under Order VIII Rule 1(1) and (3), Order XLIII Rule 2 and section 95 of the Civil Procedure Code, Cap. 33 [R.E 2019], the applicant seeks, once more, an extension of time to file a Written Statement of Defence, (WSD), in the respective main case. Advocate for the applicant, Mr. Michael Mwangati, through his adopted affidavit cites two reasons for the delay to file WSD: One, his client delayed to supply him with a copy of certificate of title. Two, encountering a network problem that prevented filing of the WSD on time. The respondents are hungrily contesting the application. Mr. Isack Bwire, learned advocate, filed a counter-affidavit for the 1st respondent. Mr. Frank Makigijo, learned State Attorney, on the other hand, filed a joint counter-affidavit for the 2nd, 3rd and 4th respondents. During hearing, Mr. Mwangati quoted Attilio v. Mbowe [1969] HCD 284 that the application will accord the applicant with the right to be heard and such grant will not prejudice the respondents. Page. 1 Mr. Makigijo for the 2nd, 3rd and 4th respondents stated that the applicant had the luxury of 21 days to file the WSD but failed to do so. Still, the applicant failed to act accordingly when she was further granted 7-day extension. To Mr. Makigijo, the lack of affidavit and or any public notice issued by the Court that there was a network problem, makes the reason for the application illogical. Mr. Msuya, had similar thoughts, he pressed that there ought to have been a public notice on failure of the network. Equally, the applicant’s application could have been accompanied by an affidavit reflecting on the issue of network problem from the court’s officials. According to Mr. Msuya, court orders must be complied with as per Mohamed R. Mohamed [2003] T.L.R. 76. Mr. Msuya further cited Lyamuya Construction Co. Ltd v. Board of Trustees of Young Women Christian Association, Civil Application No. 2 of 2010, from which the applicant had to disclose the reason for failure to file WSD within extended time. The applicant, according to Mr. Msuya, failed to account for each day of the delay. Mr. Mwangati, was adamant, in his rejoinder address. He reiterated the two reasons: the certificate of title and network problem resulted to a delay in filing the WSD. Additionally, Mr. Mwangati pointed that the respondents did not state as to which rights would be infringed if the application would be granted. On whether or not to grant extension of time, the points which have to be taken into account are as elucidated in Tanzania Revenue Authority v. Tango Transport Co. Ltd, Consolidated Civil Application No. 4 of 2009 and No. 9 of 2008 (unreported) are thus: “(a) the length of the delay. (b) the reason for the delay. (c) whether there is an arguable case, such as, whether there is a point of law on the illegality or otherwise of the decision sought to be challenged. (d) the degree of prejudice to the defendant if the application is granted.” The applicant has failed to file the WSD in two successive occasions. The first being within the prescribed 21 days and when the time was extended to 7 more days. The question remains, if the applicant has disclosed good causes for such delay. In paragraph 4 of the supporting affidavit, Mr. Mwangati states the reasons for the delay to file WSD. The paragraph is hereby reproduced: Page. 2 4. That, due to technical problems that there was problem of network that caused us fail to lodge written statement of defence in the system on time and also we were not been supplied with important documents by the applicant. Therefore, we could not file our written statement of defence (sic) online out of time when network became better as we realized that even the important documents such as certificate of occupancy, the minutes and other receipts were missing. Therefore, we failed to file our Written Statement of Defence on time due to those reasons. The applicant laments about the problem with the electronic filing system but fails disclose clearly, so it is blurred. If there were, indeed, that system (eCMS) problem, an affidavit of the Deputy Registrar of the High Court ought to have accompanied the chamber summons in this application. The requirement is clearly seen in the case of Jacqueline Ntuyabaliwe Mengi & 2 Others v. Abdiel Reginald Mengi & 5 Others, Civil Application No. 332/01 of 2021, (unreported) and Ramadhani J. Kihwani v. TAZARA, Civil Application No. 401/18 of 2018, CAT (unreported) where in the latter case it was ruled that: “In application for enlargement of time, like the present, all material persons must swear affidavits to trigger the Court exercise its discretion under rule 10 of the Rules – see: Mary Rugomora v. Rene Polete, Civil Application No. 2 of 1992 (unreported).” Failure to abide by the above law, the allegation of network problem stands unproved thus, rejected. In addition, the law, that is, Judicature and Application of Laws (Electronic Filing) Rules G.N. No. 148 of 2018 instructs under Rule 24(5) that parties facing technical challenges must promptly inform the Deputy Registrar or the Magistrate ex-parte by 15:00 hours or the following working day for appropriate relief. In addition, nothing has been stated by the applicant if at all she took any steps provided by the mentioned law. It appears that the applicant was not diligent enough to follow the dictates of case law as enunciated in Registered Trustees of Telesina Sisters & 10 Others v. Nassoro Thabit Lipangile (an Administrator of the estate of the estate of Rukia Lipangile) & Another, Civil Appeal No. 382 of 2021, CAT, dated 10/12/2024 liked the decision in Hadkinson v. Hadkinson, [1952] 2 All ER 567 it was stated that: “It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until – that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.” See also Olam Tanzania Limited v. Halawa Kwilabya, Civil Appeal No. 17 of 1999, CAT, (unreported); Karori Chogoro v. Waitihache Menengo, Civil Appeal No. 164 of 2018, CAT dated Page. 3 5/07/2021 and CRDB Bank PLC v. Heri Microfinance Limited & Another, Civil Appeal No. 20 of 2020, CAT dated 19/03/2024. Next, I examine and make a finding on the second reason that is advanced by the applicant for the delay, that important documents to be attached in their WSD were missing. Truly, in Bushiri Hassani v. Latifa Lukio Mashayo, Civil Application No.3 of 2007 (unreported) it was ruled that: “Delay, even of a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken” It should be remembered that the applicant had two windows of opportunity to file the WSD. The prescribed 21 days period which was then extended to 7 more days. By failure by the applicant to accompany the chamber summons with the affidavit of her principal officer, she assaulted the principle against hearsay evidence because, her counsel is not her employee, so the counsel was not enough to swear an affidavit in respect of missing documents found at the office of the applicant. Failure to bring an affidavit of a principal officer, like in failure to annex the affidavit of the Deputy Registrar of the High Court as explained above, this Court is entitled to have adverse inference against the applicant. Thus, the applicant has miserably failed to account for each day for the delay. I find that such reason is not sustainable to justify the delay. The counsel for the applicant has impressed upon me that the respondents would not be prejudiced in case the application is granted, more so, there is no counter-argument from the counsel for the respondents. With respect, I reject it because the respondents have rights under the law, that pleadings be filed under the prescribed times, save for sufficient reasons. If extension is granted without sufficient cause, it would be injurious to the respondents and no party would, in future obey the provisions of the law. The applicant, was under the law, obliged to act diligently. That is lucidly expressed in Loswaki Village Council & Another v. Shibesh Abebe [2000] T.L.R. 204 (CAT) where it was stated that: “... those who seek the protection of the law in a Court of justice must demonstrate diligence.” Sadly, the applicant, by not mentioning the Deputy Registrar in his role about eCMS about failure of network and the applicant in her role of timely supplying the copy of the certificate of title to her counsel, has not observed the law against cleverly drafting pleadings to circumvent the requirement of the law. See Tanzania Revenue Authority v. New Musoma Textile Limited, Civil Appeal No. 93 of 2009 CAT, (unreported) it was held that: “The second answer provided by Mr. Magongo to the issue, is that there was no reference to any tax dispute in the body of the plaint or prayers. The answer to that is provided by this Court in KOTRA’s Page. 4 case. Where the decision of the Indian case of RAM SINGH vs. GRANPANCHAYAT (1986) 4 sac 364 AIR, 1986) SC. 2197 was approved. In the latter case it was held that where the civil Court’s jurisdiction is excluded, the plaintiff cannot be allowed to circumvent the bar by the clever drafting of the plaint.” [Emphasis mine]. Why am I suggesting that the applicant cleverly crafted her affidavit. She wanted this Court to fail to question why important persons with personal knowledge about the cause of the delay have not filled affidavit to prove the allegations. To conclude, under the authority of Rashid Twalib Makonyora & 2 Others v. Salim Twalib Makonyora, Civil Application No. 21 of 2015, the applicant has neither accounted for each day of the delay nor furnished the Court with sufficient cause for warranting extending time within which to file the intended written statement of defence. The application stands dismissed with costs. It is so ordered. Dated at KIGOMA this 4th of April 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 5