AZOLI V AFRICAN BANK

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 26518 OF 2023 AZOLI WILLIAM KAZIMOTO....................................................... 1st PLAINTIFF WILLIAM MANGA MERA T/A AZOWIL GENERAL SUPPLY..... 2nd PLAINTIFF VERSUS AFRICAN BANKING CORPORATION TANZANIA LIMITED......... DEFENDANT RULING 3/7/2024 & 19/7/2024 ROBERT, J This court is called upon to determine a preliminary objection raised by the Plaintiffs, Azoli William Kazimoto and William Manga Mera T/a Azowil General Supply, against the Defendant, African Banking Corporation Tanzania Limited, in the suit concerning the breach of facility agreements. The Plaintiffs object to the amended Written Statement of Defence (WSD) filed by the Defendant on the grounds that no original WSD was filed within the stipulated time frame, thereby rendering the amended WSD improper and illegal per Order VIII Rule 1(1) and (2) of the Civil Procedure Code, Cap. 33 R.E. 2019. i On 18th March 2023, the Defendant moved this court unopposed seeking to amend the WSD in order to file a counterclaim against the Plaintiffs. The Court granted the prayer made, and on 8th April 2024, the Defendant filed the amended WSD. However, on 29th May 2024, the Plaintiff raised a preliminary objection challenging the amended WSD, contending: "That there being no written statement of defence filed in this Court, thus amended written statement of defence is improper and illegally filed in this court as it contravenes Order VIII Rule 1(1) and (2) of the Civil Procedure Code Cap. 33 R.E. 2019." Hearing proceeded by filing written submissions. Counsel for the Plaintiffs, Mr. Mwita Emmanuel, argued that the Defendant was served with the plaint and summons on 12th December 2023 and was required to file the WSD within 21 days, i.e., by 2nd January 2024. The Defendant, however, failed to file the WSD within this period, violating Order VIII Rule 1(1) and (2) of the Civil Procedure Code, Cap. 33 R.E. 2019, and GN No. 148/2018 (The Judicature and Application of Laws (Electronic Filing) Rules, 2018). Mr. Emmanuel emphasized that without a properly filed original WSD, the amendment could not be legally sustained. He made reference to the case of National Bank of Commerce v. Partners Construction Co. Limited, Civil Appeal No. 34 of 2023 (unreported), where the Court of 2 Appeal of Tanzania ruled that a WSD filed even one day late was filed out of time and should not be considered. He also cited Muganda Michael vs. Simon Liduckey, Misc Civil Application No. 23/2023, arguing that the lack of proper payment of court fees further invalidates the WSD. The Plaintiffs' counsel contended that the Defendant's reliance on a purported system error does not absolve their obligation to comply with procedural rules. He argued that the WSD was never visible in the court's electronic system and therefore was not legally on record. He also highlighted the importance of adhering to electronic filing rules to ensure transparency and accountability in legal proceedings. In response, Counsel for the Defendant, Mr. Thomas Mihayo Sipemba, submitted that the suit was filed on 30th November 2023 and the Defendant was served on 12th December 2023. He explained that the WSD was lodged online and admitted by the Registrar on 2nd January 2024, but due to a system error, the control number for payment was not generated. This error was addressed on 21st February 2024, and the payment was made on the same day. He submitted that screenshots from the court's electronic filing system support his claim. 3 Mr. Sipemba argued that the administrative error should not prejudice the Defendant's right to a fair trial. He referenced Regulation 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, which states that a document is considered filed when submitted through the electronic system. He contended that the Defendant acted diligently in attempting to rectify the error and that the WSD was indeed lodged within the statutory period. Regarding the amended WSD, Mr. Sipemba stated that the court granted the Defendant leave to amend their WSD on 18th March 2024, and the amended WSD was filed on 8th April 2024. He emphasized that the court's order validated the amended WSD and that the Plaintiffs' objection lacked merit as the original WSD was admitted within the prescribed period. Mr. Sipemba cited The Registered Trustees of the Marian Faith Healing Center @ Wanamaombi v. The Registered Trustees of the Catholic Church Sumbawanga Diocese, Civil Appeal No. 64 of 2007 (unreported), to support his argument that procedural lapses should not overshadow the substantive justice of the case. 4 In his rejoinder, Mr. Emmanuel maintained that the Defendant had not properly filed the WSD as required by law. He reiterated that the issue of the control number and system errors were irrelevant as the WSD was not visible in the online system and thus was not legally on record. He argued that the Defendant's explanations were insufficient to excuse the procedural lapse and that the amended WSD should be struck out. Mr. Emmanuel emphasized that the Plaintiffs have a right to expect strict compliance with procedural rules to ensure fairness and order in legal proceedings. He asserted that the court should uphold the procedural requirements to maintain the integrity of the judicial process. The court acknowledges the procedural importance of properly filing a WSD within the stipulated time frame and the necessity of paying the required fees. However, the court also recognizes the administrative challenges posed by technical issues in the electronic filing system. Order VIII Rule 1(1) and (2) of the Civil Procedure Code mandates that a WSD must be filed within 21 days from the date of service. In the present case, the Defendant was required to file the WSD within 21 days from the 5 date of service, which was 2nd January 2024. However, the Defendant claims that the WSD was lodged online and admitted by the Registrar within the time frame but faced technical difficulties in generating the control number for fee payment. The Plaintiffs argued that without payment, the filing is incomplete. According to Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, a document is considered filed when submitted through the electronic system. The Defendant claims to have filed the WSD on 2nd January 2024 but faced issues with the control number for payment due to system errors. The control number error led to the non­ reflection of the WSD in the court's online system. The Defendant later paid the court fees upon obtaining a correct control number, but the initial WSD remained unrecorded online. The Plaintiffs argue that the Defendant did not properly file or pay for the original WSD, rendering the amended WSD improper. The Court recognizes the Defendant's assertion of a system error as a valid explanation. However, considering that the original WSD was not reflected in the system due to technical errors, the Court cannot regard the original WSD to have been properly filed. The Court is aware of the principle 6 that pleadings not properly filed and paid for cannot be considered part of the court records. The Court is aware that it granted leave for the Defendant to amend their WSD on 18th March 2024, and the amended WSD was filed on 8th April 2024. However, given that the original WSD was not properly admitted into the court records, despite the administrative challenges posed by technical issues in the electronic filing system and the technical difficulties in generating the control number for fee payment, the court has grounds to vacate its previous order allowing the amendment and to strike out the amended WSD, as the foundational document (original WSD) was never properly filed. Therefore, the order allowing the amendment of the WSD is hereby vacated and the amended WSD is struck out. However, considering the Defendant's initial steps to comply with the procedural requirements and the impeding administrative challenges which were brought by the Defendant to the attention of the Court, this Court sent both parties to consult with the Deputy Registrar and IT officers to look for a solution on the issues unsuccessfully. Nevertheless, system logs indicate that the original WSD was filed though not reflected in the electronic Case Management system. 7 The Court acknowledges the importance of procedural rules in maintaining judicial order but emphasizes that substantive justice should not be overshadowed by technicalities. The Court further acknowledges that the Defendant faced genuine technical issues with the online filing system, which were beyond its control. The Defendant's intent to comply with procedural rules is evident from their subsequent actions to address the filing issues. Section 3A of the Civil Procedure Code emphasizes the need to facilitate the just, expeditious, and affordable resolution of disputes. Given the technical difficulties faced by the Defendant, denying them the opportunity to file a proper WSD would undermine the principles of fairness and justice. Courts have recognized the need to balance procedural rules with substantive justice, especially in cases where technical issues impede compliance. Therefore, this Court is inclined to invoke the overriding objective principle to ensure that the Defendant is not unjustly deprived of the opportunity to present their defence. The interests of justice demand that parties are allowed to fully and fairly present their cases. 8 In light of the above analysis, the preliminary objection raised by the Plaintiffs is upheld to the extent that the amended WSD is struck out. However, in the interest of justice and pursuant to the overriding objective principle, the Defendant is granted leave to file a proper WSD within 14 days from the date of this ruling. It is so ordered. 9