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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA PETITION NO. 3077 OF 2024 IBRAHIM SHERMOHAMED Alias MWAKABWANGA……..PETITIONER

VERSUS DADKARIM NURMOHAMED BARHAM Alias TOLL……..RESPONDENT

RULING Date: 15 April 2024 & 3 May 2024 SINDA, J.: The petitioner filed this petition claiming that the respondent published defamatory statements against him, which, among other things, tarnished his long-established reputation. In reply to the petition, the respondent refuted the allegations and also raised a preliminary objection (the P.O.) on the following grounds, 1. That, the petitioner’s petition is incurably defective for violating the mandatory requirements of Rule 5(1) of the Media Services (Defamation Proceedings) Rules, 2019; and 1 2. That, this Court has neither geographical/territorial nor pecuniary jurisdiction to entertain the petitioner’s petition. At the hearing of the P.O., the petitioner was represented by Mr. Lucky Mgimba, learned counsel and the respondent was represented by Mr. Samson Suwi, learned counsel. On the first objection, Mr. Suwi submitted that the instant petition was filed on 15 January 2024 as stamped by the court and served to the respondent on 29 February 2024, which is thirty-eight (38) days from the date of filing. Mr. Suwi added that according to Rule 5 (1) of the Media Services (Defamation Proceedings) Rules, 2019 (the Rules), service of the petition must be done within seven (7) days from the date of filing. He further contended that the instant petition was filed on 15 January 2024, and the seven (7) days lapsed on 22 January 2024.

Therefore, the petitioner should have filed in court an affidavit stating the facts and reasons as to why service couldn’t be effected in time as provided by the by Rule 5 (3) of the Rules . He added that the petitioner failed to file the affidavit and therefore makes the present petition incompetent. In support of his submission, Mr. Suwi cited the cases of Migo Civil and Builders Contractors Co. Ltd & Another versus Mnange General Store Company Ltd Civil Reference 2 No. 01 of 2023, (HC at Sumbawanga) and Alex Msama Mwita versus Emmanuel Nasuzwa Kitundu & Another, Civil Application No. 538/17 of 2020 (CAT at Dar es Salaam) to support his arguments. In relation to the second preliminary objection. Mr. Suwi argued that this Honourable Court has no territorial jurisdiction to entertain the petition. He stated that the respondent is a natural person resident of Kigamboni. Mr. Suwi further said that the provisions of section 18 (a) (b) of the Civil Procedure Code Cap. 33 R.E 2022 (the CPC), provides that subject to limitations aforesaid every suit must be instituted where the respondent works for gain. The respondent is residing in Kigamboni, the High Court Sub registry vested with geographical jurisdiction to entertain the petition in the High Court of Tanzania, Dar es Salaam Sub Registry. He further submitted that section 18 of CPC, read together with Rule 7 (1) of the High Court

Registry Rules GN No. 96 of 2005 as amended, states that original proceedings in the court may be instituted in the registry at Dar es Salaam or in the District Registry anywhere the defendants resides or cause of action arose. In his reply to the first objection, Mr. Mgimba submitted that the court’s stamp date of 15 January 2024 is not a filing date but rather a date for 3 submission in which the petition was received at the court registry. He submitted that a document is deemed to have been duly filed in court upon payment of prescribed fees according to Rule 21 of the Electronic Filing Rules, 2018 and Rules 3 and 5(1) of the Court Fees Rules, 2018. He cited the case of Mariselo Mpigi versus Agustino Martin Hyera, Misc. Civil Application No. 08 of 2022 to support his argument. He further submitted that, in this case, the petition was electronically filed, and the prescribed fees were paid on 19 February 2024. He stated further that time could not have started to run because, under current circumstances, after filing and payment of fees, the petition needs first to be assigned to a judge so that it can have a case number. He further argued that the petition was assigned to a judge, and summons were issued on 21 February 2024. The petitioner was informed that summons was issued on 22 February 2024. Immediately, the petitioner requested to be served with the summons, which he

received on 24 February 2024. The summons was presented to the process server, who served the respondent on 29 February 2024. 4 In his rejoinder submission, Mr. Suwi argued that the opposite counsel concluded that if the filing was complete after the court fees were paid on 19 February 2024, then the seven (7) days expired on February 26, 2024. Again, he rejoined that if the date were to be counted from the date the summons was issued on 21 February 2024, then seven (7) days of service to the respondent expired on 28 February 2024. He further submitted that, in both circumstances the petition being served on 29 February 2024 was out of the prescribed period. He added that as provided under Rule 5 (3) of the Rules, the petition was to file an affidavit to explain why the respondent was not served on time. I have considered the submissions of the learned counsels for both parties. I have also taken the liberty of going through the case laws and the provisions of the law referred thereto. I shall start my deliberation on the first ground by reproducing provisions of Rule 5 (1) and (3) of Rules “5.- (1). The petitioner shall, within seven days after filing the petition, serve a copy of the petition on the respondent. (2). N/A 5 (3). Where service has not been effected, the petitioner shall, within seven days, file in the court an affidavit stating the fact and reasons why the

service has not been effected to a person who ought to be served.” The above provision requires service of the petition on the respondent after it has been filed in court. The rule mandatorily requires the petitioner to serve a copy of the petition on the respondent within seven days after filing, and the modes of service used are as provided for under the CPC. It is not disputed that the petition was filed in this matter. However, it is disputed when the filing date should begin to run. Is it when the petition was filed in court, when prescribed fees were paid, or when the file was assigned to a presiding Judge? In my understanding, filing is a process that doesn’t just end when the required documents are lodged or filed in court. There is also the issue of payment, the matter being given a case number and then assigned to a Judge who gives necessary orders and issues summons to parties on when to appear before the court as provided under Order V Rule 1(1) of the CPC, that reads, 6 ‘Where a suit has been duly instituted, a summons may be issued to the defendant at the time when the suit is assigned to a specific Judge or Magistrate pursuant to the provisions of rule 3 of Order IV, to file in accordance with sub rule (1) of rule 1 of Order VIII, a written statement of defence to the claim.’ Read together with Order V Rule 4 of the CPC, ‘The presiding Judge, Magistrate or the

Registrar shall after the issuance of summons under rule 1 of Order V, fix a date for both parties to appear for orders as prescribed under rule 17 of Order VIII taking into account the time required for service of summons, filing of the written statement of defence and reply thereto.’ Based on the court records, the petition was submitted in court on 15 January 2024. The prescribed fees were paid on 19 February 2024, and service was effected to the respondent on 29 February 2024. It is worth remembering that the prescribed time of service, as provided under the law, is seven (7) days. 7 When the computation of days was done by Mr. Suwi, he considered all scenarios, that is, first, if the time started to run on 15 January 2024 and the respondent was served on 29 February 2024, that would amount to thirty- eight (38) days of service. Secondly, if the time started to run from 19 February 2024 when the prescribed court fees were done, then the expiry of seven (7) days would be on 26 February 2024. Last, if time were counted from 21 February 2024 when the summons was issued, then the expiry of seven (7) days would be on 28 February 2024. That being the case, the petition was served to the respondent on 29 February 2024. I agree with Mr. Suwi that it was outside the prescribed time provided by the law as explained under Rule 5(1) of the Rules. In practice, the time for service is

counted from the time when the file is assigned to a Judge, and the summons is issued to the respondent as provided by the CPC. In this case, a summons was issued on 21 February 2024. The seven (7) days of service as provided under Rule 5(1) of the Rules should have been calculated therefrom. The summons was served on 29 February 2024, the petitioner was delayed one day. A delay is a delay, even if it’s just for a single day. The petitioner should have given an account as to why the petition was served to the respondent 8 after the prescribed time had lapsed, as provided under Rule 5(3) of the Rules. This is explained in the case of Hassan Bushiri versus Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) where the Court stated: "Delay, of even 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" All reasons for the delay of the petition should be included in the affidavit, regardless of whether the delay was caused by the petitioner or respondent. The essence is that the court runs its activities on prescribed time limitations that must be adhered to. Failure to do so must be accounted for, and it is upon the court to decide whether the reasons suffice or not. Unfortunately, the petitioner in this matter did not provide an explanation for the delay. I find the

first objection has merit. I do not find it necessary to discuss the second ground of the preliminary objection. I proceed to hold this petition to be incompetent, and consequently, it is hereby struck out. The petitioner, if he wishes to pursue the matter further, could do so by following the procedure as provided by the law. 9 There is no order as to costs. It is so ordered. Dated at Mbeya on this 3 day of May 2024. A. A. SINDA

JUDGE The Ruling is delivered on this 3 day of May 2024 in the presence of Mr. Siamini Ngwembe, learned advocate holding brief for Mr. Lucky Mgimba, learned advocate for the petitioner and Mr. Suwi, learned advocate for the respondent. A. A. SINDA

JUDGE 10