ELIUD RULING

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CIVIL CASE NO. 30261 OF 2024 ELIUD TAMSON MWAMPUNGA….………………………………PLAINTIFF VERSUS CIRREN GROUP OF COMPANIES LIMITED…….……………DEFENDANT RULING 25thMarch & 3rd April 2025 NONGWA, J. The plaintiff filed this case against the Defendant claiming USD 60,000, equivalent to TZS 166,800,000/= for an unlawful withdrawal after breach of contract, compensation for the loss of profit to wit; USD70,000 equivalents to TZS 194,600,000/= and general damage to wit USD10,000/, equivalent to TZS 27,800,000/=. It is alleged that the plaintiff and defendant through her director one James Pascal Nogellah on 17/9/2024, at Tunduma township in Songwe region entered into oral agreement for exchange of money USD180,000/=, equivalent to TZS 500,400,000/= whereby the plaintiff had USD Dollars and the defendant had Tanzania shillings in which the plaintiff was required 1 to deposit USD180,000/=, to the defendant Account, and the defendant was required to deposit the equivalent amount of USD180,000 at Tanzania shillings to the plaintiff Account. That, to fulfil the contract, on 18/9/2024, the plaintiff deposited the USD180,000/= through his Account Number 0252661107500 CRDB Bank Tunduma Branch into the defendant Account Number 6004248 formerly Barclays Bank Limited now ABSA Bank Tanzania Limited, the defendant acknowledged to receive the said amount and was required to deposit the equivalent Tanzania shillings on the same date through the plaintiff Bank Account. Unfortunately, the defendant failed to heed the contractual obligation to deposit to the plaintiff Account any amount equivalent to USD180,000 without any good cause, and when his director James Pascal Nogellah was contacted, informed the plaintiff that, the defendant was no longer interested into the business. In the cause of follow up to return the deposited amount, he found the defendant had already withdrawn USD60,000, equivalent to TZS 166,800,000/=. On 5th October 2024, plaintiff and defendant made a written agreement, in which the defendant agreed to return the amount. The Plaintiff considers the act of defendant to breach the contract entered on 17/9/2024, and to stay 2 with the plaintiff money to wit USD180,000 has caused the loss of business and profit on plaintiff’s side. Upon the plaint being assigned to me, this court ordered for service of summons to the defendant, that is 29th November 2024 and the matter was to come for mention on 12/12/2024 when Mr. Kelvin Kuboja appeared on behalf of Dismas, informed the court that the defendant received summons on 5/12/2024 and they were still within time, he prayed for adjournment. The matter was adjourned for Mention on 26/2/2025. When the matter came for another mention, that is 26/2/2025, Ms. Brigita for Defence prayed for extension of seven days as the counsel for defence had been attending sick relative who was now deceased a thing that was objected by Mr. Yona Frank on ground that they are out of time of the available extension and the law is silent as to the remedies available for the plaintiff. The counsel had no problem with what had befallen the defence side. It was the court’s decision that the prayer to extent time be granted for interest of justice and the matter was adjourned again for mention on 25/3/2025, the appellant was to file WSD within seven days. 3 On 25/3/2025 again Ms. Brigita appeared on behalf of the Defence counsel and stated the counsel had just been engaged and managed to file Preliminary objection and prays for extension of seven days more to file written statement of defence. Mr. Yona objected the prayer and prayed under O. VIII Rule 14 (1)(2) of the Civil Procedure Code, Cap 33 R.E. 2019 to proceed ex-parte as defence have not used their right, and that the preliminary objection alleged to have been filed online cannot stand alone. I have given through consideration the submission by the two sides and the issue is whether the defence side are eligible for further extension of time to file Written Statement of Defence out of time. Extension of time is a matter of discretion of court, but such discretion must be exercised judiciously and flexibly with due regard to the relevant facts of the particular case. It follows therefore, the grounds upon which an order for extension of time may be granted or otherwise would also depend on the circumstances of each case. Ordinarily, those grounds should be outside one’s control. This was the position in the case of Felix Tumbo Kisima vs. TTCL and Another [1997] TLR 57 the court stated that sufficient cause should not be narrowly interpreted but should be 4 given a wide interpretation to encompass all the reasons or cause which are outside the applicant's power to control or influence, resulting in delay in taking any necessary steps. It is provided under O.VIII Rule 3 of the CPC that where a summons to file a defence has been served to the defendant and the defendant wishes to defend the suit, he shall file a written statement of Defence within twenty-one days from the date of service and on application before the expiry of the twenty- one days or within seven (7) days after expiry of that period for good cause the court may extend time within which the defence has to be filed for another ten days. For clarity, O.VIII rule 1 (1-4) provides; ‘1(1) Where a summons to file a defence has been served in accordance with Order V and the defendant wishes to defend the suit, he shall within twenty-one days from the date of service of the summons, file to the court a written statement of defence and enter appearance on the date specified in the summons. (2) The provisions of rule 1 of Order VII shall apply mutatis mutandis in respect to filing a written statement of defence. (3) The court may, on application by the defendant before the expiry of the period provided for filing a written statement of 5 defence or within seven (7) days after expiry of that period and upon the defendant showing good cause for failure to file such written statement of defence, extend time within which the defence has to be filed for another ten days and the ruling to that effect shall be delivered within 21 days. (4) The extended ten days under sub-rule (3) shall be counted from the date of the order of the court for extension.’ Therefore, while section 93 of the Civil Procedure Code 1966, imposes no restriction whatsoever in the court’s discretion in extending time, the proviso to Order VIII, rule (1) (3) and (4) imposes limitation on the discretion of the Court to extend the time within which the defendant can file a Written Statement of Defence and requires an application to extend time to be made within 21 days of the expiry of the time set for the lodging of the Written Statement of Defence. It has been said in a number of decision that time would be extended if there is an illegality to be rectified; not in every situation. In this case the defence has been grossly negligent and surely cannot be heard now to claim that there are reasonable grounds for the extension of time that is being engaged recently, while they were aware of the summons to file WSD and appeared for 1st time extension of time and now 6 the grace period has totally lapsed still they appear with their prayer for further extension of time. The court has the duty to see that rules of procedure are observed strictly and cannot aid any party who deliberately commits lapses because to do so, as in the present case, would defeat the whole reasoning behind timely delivery of justice. Here the limitation is imposed on the discretion of the court to extend the time within which the defendant can file a Written Statement of Defence. The application must be made within 21 days of the expiry of the time set for the lodging of the Written Statement of Defence. The defendant is late for about 110 days after the time given by the court for filing the Written Statement of Defence. This, to say the least, is inordinate delay of time. On the issue of the filed Preliminary Objections, the defendant is supposed to raise it by his pleadings that is WSD this is in accordance with O. VIII rule 2 of the CPC. As to the remedy for plaintiff, the law is very clear that the court shall order ex-parte hearing, for clarity, rule 14 (1) provides; 7 ‘14(1) Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on oral application by the plaintiff to proceed ex parte, fix the date for hearing the plaintiff’s evidence on the claim.’ In the end, I find the defence side have forfeited their right to file WSD and therefore the records remain without written statement of defence. The matter shall proceed ex-parte. It is so ordered. V.M. NONGWA JUDGE 3/4/2025 Dated and Delivered at Mbeya this 3rd April 2025 in presence of Mr. Yona Frank learned counsel for the Plaintiff. 8 V.M. NONGWA JUDGE 9