gratian bernad mali vs dr peter jonas chitamu and others 2020 tzhccomd 1972 13 august 2020

IN T H E H IG H C O U R T O F T A N Z A N IA (C O M M K R C IA L 1)1 V IS IO N ) A T DAR ES S A L A A M M IS C E L L A N E O U S C O M M E R C I A L A P P L I C A T I O N N O . 40 O F 2020 (Originating from. Commercial Cause No. 217 o f 2016 and Miscellaneous Commercial Application No. 45 o f 2019) IN T H E M A T T E R O F T H E C O M P A N I E S A C T , C A P . 212 O F 2002 AND IN T H E M A T T E R O F D O V E T E L (T) L I M I T E D T/A S A S A T E L T A N Z A N IA (IN A D M I N I S T R A T I O N ) AND G R A T IA N B E R N A R D M A L I ( A d m in is tr a to r o f Dovefel ( ! ) L im ited T/A S asatel T a n z a n i a . . . . . . ........................................ ............. ....A P P L I C A N T V ersu s DR. P E T E R J O N A S C H I T A Y H '........ ............................................l s( R E S P O N D E N T M A R Y B U N D A L A ............. ................................................................ 2 nd R E S P O N D E N T F I R S T S E A L C O M P A N Y L I M I T E D ................................. . .3 rd R E S P O N D E N T L a s t O r d e r : 2 2 " \ l u n e , 202.0 D a t e o f R u l i n g : 1 31" A u g , 2 0 2 0 R U L IN G FIKIRINI, J. Mr. Gratian Mali an advocate as well as appointed adm inistrator o f the D ovetel (T) Limited T/A Sasatel Tanzania, filed this application for variation o f the administration order dated 25th July, 2019, pursuant to section 256 (2) (a) o f the 1 [Page Com panies Act, Cap 212 o f 2002 (the C om panies Act) Order XLII1 R ule (1) o f the Civil Procedure Code Act, Cap. 33 R. E. 201 9 (the CPC) and the C ourt order dated 24th M arch, 2020, for an extension o f tim e within w hich the A dm inistrator may exercise his functions. The application was supported by an affidavit deponed by Mr. Mali. Mr. M paya K amara advocate featuring for the 2 nd respondent, Ms. M ary Bundala aside from contesting the application by filing a counter-affidavit d ep o n ed by Ms. Bundala, filed a notice o f a prelim inary point o f objection that the application was time barred, since it was filed on 09th April, 2020 instead o f being filed on 0 8 lh April, 2020, as ordered by the Court. Both applications w ere ordered be argued by filing written subm issions in the follow ing order: the submission in respect o f the prelim inary point o f objection and the application itself to be sim ultaneously filed by or on 06lh July, 2020; with exchanged reply submissions by or on 2 0 lh July, 2020 and rejoinder by each if any by or on 2 7 lh July, 2020. The ruling was set for 13th August, 2020. I f the prelim inary objection will be sustained the m atter will then end there as the application will be struck out. I f the p relim inary point o f objection is overruled, then the application w ill be considered on merits. I will thus start with the subm issions on the prelim inary point o f objection. Mr. K am ara submitted that the application that w as intended and eventually ordered by the Court to be filed on 08lh April, 2020 w as filed one day late to w it on 0 9 th April, 2 |Pa g e 2020, without leave o f the Court having been sought and granted. He further submitted that if at all the applicant had bothered he w ould have applied for an extension o f time under 93 o f the CPC, as long as sufficient grounds justified the delay to the satisfaction o f the Court. Mr. Kam ara thus subm itted that since nothing has been adduced to justify on the delay the application w as thus tim e barred and prayed for its dismissal w ith costs. Mr. Mali prem ised his reply submission contending that the filing o f pleadings and the registration process, especially in the High Court Registries o f D ar es Salaam, were to be m ade electronically through the Judicial Statistics D ashboard System (JSDS), w hich m eans the m anner and time o f filing was governed by the Judicature and A pplication o f Laws (Electronic Filing) Rules, GN. No. 148 o f 2018 (Electronic Filing Rules). It was then his argum ent that due to this change the filing m ode was affected, the party raising a prelim inary point o f objection in that regard m ust therefore check with either the R eg istrar’s office or the opposite party, since it seems the electronic filing did not send inform ation to the opposite party in relation to the m atter in w hich the parties were involved. Hard copies w ere generated later and this, according to Mr. Mali, was for assessm ent and paym ent purposes. Specifically explaining on M iscellaneous C om m ercial A pplication No. 40 o f 2020, it was his subm ission that it was filed on 0 6 th April, 2020 at 13:31:31 hours and on sam e day the notification o f adm ission w as delivered to the 3 |Page applicant’s dashboard account by the Court at J 4.59.13 hours, which w as in compliance to Rule 2 1 ( 1 ) o f the Electronic Filing Rules. From a different stand point, Mr. Mali further submitted contesting that the prelim inary point o f objection raised did n o t fall squarely within the am bit o f the principles established in the celebrated case o f M u k is a B iscuits M a n u f a c t u r i n g C o m p a n y L td v W e s t E n d D is trib u tio n L td (1969) E A 696, w hich w'as cited with approval in the case o f N a tio n a l I n s u r a n c e C o r p o r a t io n a n d P a r a s t a t a l S ecto r R e f o r m C o m m is sio n v S h e n g e n a L im ite d , Civil A p p lic a tio n No. 20 o f 2007 ( u n r e p o r te d ) , that a preliminary point o f objection raised should not be raised if there w'ould be ascertainm ent o f facts. Since it will require production o f evidence, the objection raised therefore did not qualify to be a prelim inary p oint o f objection on the point o f law. Adm itting, that it w?as im proper attaching o f evidence to the subm ission as held in the case o f B r u n o W e n c e s la u s N y a r ifa v T h e P e r m a n e n t S e c r e t a r y M in is tr y o f H o m e A ffa irs a n d A tt o r n e y G e n e ra l, C ivil A p p e a l No. 82 o f 2017, Mr. M ali contended that he had no option other than attaching copies o f electronic filing system reports in respect o f M iscellaneous C om m ercial A pplication N o. 40 o f 2020. 4 | Page On the strength o f his submission he urged the Court to overrule the objection raised as the application was timely filed as ordered on 2 4 lh M arch, 2020. C om ing to the application itself, it was Mr. M ali’s subm ission that his inability to th com plete the adm inistration assignm ent after the appointm ent by this C ourt on 25 July, 2019, was based on the facts stated in paragraphs 6, 7, 8 and 9 o f the affidavit in support o f the appl ication. From those paragraphs the reasons advanced w ere the extra ordinary m eeting o f shareholders could not take place tw ice as two shareholders nam ely Rev. Dr. G etrude Lw akatare w ho despite confirm ing receipt o f the notice did not attend, and Ms. M ary Peter Bundala w ho avoided service also did not attend. And it w as this situation that prompted him to w rite the Court on 07lh October, 2019, vide a letter with reference n u m ber A L C /D O V E T E L /1 8 , updating the Court on the difficulties being faced and requesting for C ourt assistance to sum m on Ms. Bundala. He also submitted another sh areho lders’ m eeting which was called on 0 2 nd N ovem ber, 2019, also could not proceed. Since the adm inistrator has not been able to fulfil the obligation assigned for the reason that Ms. Bundala has n ot yet handed over the co m p an y ’s office and its assets to the administrator, he w as thus seeking for an extension o f tim e so that he can carry out the adm inistration task as ordered by this Court. 5 |P ag e To fortify his position, he cited the case o f H a n s p a u i A u to m e c h s L im ite d v R S A L im ited , Civil A p p lic a tio n No. 126/02 o f 2018 ( u n r e p o r t e d ) w here the Court held: “Extension o f time is a matter o f discretion o f the Court and that the applicant must put material facts before the Court wh ich will pursued it to exercise its discretion in favour o f an extension o f lime. ” Based on the reasons advanced under paragraphs 6, 7, 8, 9 and 10 and for the sake o f justice, the applicant prayed for the Court to vary the administration order and extend time for the adm inistrator to carry out the adm inistrative duties as ordered by the Court. Mr. Kam ara prefaced his reply by addressing the electronic filing o f the application w hich he challenged as being out o f time, the point w hich has already been dealt with. His assertion was prem ised on the fact that the 2 nd respondent was served with hard copy or print copy, as he nam ed it, w hich w as dated 09th April, 2020. Illustrating m ore on his position, he subm itted that th e applicant has not given any explanation, as to w hy the application purportedly filed on 06lh April, 2020, w as subsequently endorsed as having been presented on 091h April, 2020. H is conclusion was the applicant by indicating that the filing w as done on 06th April, 6 |Pag e 2020 was trying to circum vent the 2 nd respondent’s point o f objection that the application was filed out o f time. As for the rest o f the application, it was his submission that the applicant has failed m iserably to adduce sufficient reason for failing to perform his duties within the prescribed time and also has failed to account for each day o f the delay in preferring this present application. This application has been preferred 75 (seventy five) days after the expiry date which was on 24lh January, 2020. In support o f his subm ission on the need o f accounting for each day o f the delay, Mr. K am ara referred this Court to the cases o f Chiku Harid Chionda v G et ru de Nguge Mtinga (Administration o f the Estate o f the Late Yoh ane Cla ud e Dugu) Civil Application No. 509/01 o f 2018; Tanzania Fish Processors Ltd v Eusto K. Ntangalinda, Civil Application No. 41/08 of 2018, CAT , p.9-10; and R am ad h ani J. Kihwani v T A Z A R A , Civil Application No. 401/18 o f 2018, CAT, p. 8-9. All cases unreported. Besides his written submission, Mr. K am ara also prayed to this C ourt that the 2nd re sp o n d e n t’ counter-affidavit filed w hich refuted the depositions in the ap plican t’s affidavit be adopted and form part and parcel o f the reply w ritten submission. Specifically addressing paragraphs 5 and 6 o f the affidavit, he denied any service being effected upon the 2 nd respondent. Attacking annextures D-4 and D-5 to the affidavit that there was nothing suggesting that service w as effected to the 2 nd 7 [Page respondent but avoided. A nd he argued that this becam e apparent as there was no affidavit o f the one w ho effected the service or notice to the 2 nd respondent. Mr. K am ara also challenged annexture D-6 a letter addressed to the Registrar Com m ercial Court, as actuated by malice and bad faith as it purported to level allegations that w ere adverse and prejudicial to the 2nd resp on den t w ithout copying the same to her. Jt w as his further submission that the m eeting held on 02nd Novem ber, 2019 w as held without the 2 nd respondent’s notice and disputed m ost o f the contents in the affidavit including those in p aragraph 9, 10 and 11 o f the affidavit. Submitting further it w as Mr. K am ara’s subm ission that the ap p lican t’s contention that neither o f the parties will be prejudiced, was not sufficient as indeed the 2 nd respondent will be prejudiced with the extension o f tenure o f the applicant w ho exhibited inefficiency and negligence in perform ing his duties as adm inistrator and instead want to shift blam e to the 2 nd respondent. On the strength o f his submission he urged the Court to dism iss the application with costs. As the practice requires that a preliminary point o f objection m ust precede the hearing o f an application on merits. See: Shahida A b du l Hassanali Ka ss am v Mahedi Mohamed G ula m ali Kani, Civil Application No. 1999. In this application, however, I decided subm issions in respect o f both be filed simultaneously. In the event the prelim inary point o f objection is sustained then the application will autom atically die, if not then the Court wall proceed to determ ine the application for extension o f time. Since the introduction o f the Electronic Filing Rules, the m anner o f filing has changed. N ow all the filings at High C ourt Registries in D ar es Salaam are electronically done, in particular at the H igh Court C om m ercial Division. According to R ule 21 (1) o f the Electronic Filing Rules, w hich governed electronic filings, the filing is concluded tim ely once it has been submitted th ro u g h before midnight. The provision is reproduced below' for ease o f reference: “A document shall be considered to have been file d i f it is subm itted through the electronic f l i n g system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. ” Coming to the application at hand, it w as the ap plicant’s subm ission contesting the point o f objection, that the present application was filed electronically as p er p ro o f on the JSD S (e-filing) on 06th April, 2020 and notification o f adm ission was relayed to the ap p licant’s dashboard account on the very day. Mr. K am ara challenged the subm ission contending that the application w as filed out o f tim e as 9 |Pag e he was served with a hard copy which indicated the date o f filing being 0 9 th April, 2020, which was a day later after the C ourt order that the application be filed by 08,h April, 2020. However, in the Tanzania Judicial System, the Court usually relies on the date o f filing reflected on the exchequer receipt. See: Msasani Peninsula Hotel & 6 Others v Barclays Bank (T) Ltd, Civil Application No. 192 o f 2006, CAT, (unreported) p. 4. A ccording to the C ourt fees receipt issued with control num ber 991400190301, the date reflected thereon is that o f 0 9 th April, 2020, which confirms a delay o f one day. That delay m ust be explained. This has been a position in a num ber o f authorities but for the purposes o f this ruling J will point out these few: Bushfire Hassan v Latina Lucia Masanya, Civil Application No. 3 of 2007, C A T (imreported), W a m b e le M t u m w a Shaban v M o h a m e d Hamis, Civil Reference No. 8 of 2016 (unreported) and Lyam uya Construction C o m p any Ltd v Board of Registered Trustee of Y ou ng W o m e n ’s Christian Association of Tanzania, Civil Application No. 2 of 2010, C A T at Arus ha (unreported), w here in all these decisions the Court underscored th e im portance o f advancing sufficient reasons for the delay by stating that: “delay o f even a single day has to be accounted fo r otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken. ” 10 | P a g e And the proper way o f doing that would have been this application being preceded with an application for extension o f time. In the would be application for extension o f time the applicant w ould probably be in a position to highlight w hat transpired betw een the information retrieved from the JSDS (e-filing) dated 0 6 th April, 2020 and notification o f adm ission relayed to the applicant’s dashboard acco un t on the very day and the date on the receipt which is the one relied by the C ourt and hard copies filed in Court and served upon Mr. Kamara. On the point as to w hether the point o f objection raised fits in the criteria set out in the celebrated case M uk is a B iscuits, since the objection called for adducing o f evidence to substantiate that the application was tim ely filed, th en it d id n ’t fit. T hough I can to an extent understand Mr. M a li’s point but w ould not consider that in his favour as the receipt and hard copies filed in C ourt are both part o f the Court record, which this Court w ould in one w ay or the another exam ine w h ether there w as an objection on not to satisfy itself that the application w as tim ely filed. A lth ou gh the delay is that o f one day and considering the spirit o f the overriding objective, yet I find m y h an d s tied. In the case o f M a r t i n K u m a l i j a & 117 O th e r s v. I r o n a n d Steel L t d (C ivil A p p iic a tio n No. 70/18 o f 2018) ( a t D a r ), which cam e after the M o n d o r o s i V illage C o u n c il a n d 2 O t h e r s v. T B L a n d 4 O t h e r s in C iv il A p p e a l No. 66 o f 2017 (at A r u s h a ) , w hereby the C ourt o f A ppeal while appreciating focus on substantive justice, but discouraged skipping o f m andatory 11 | P a g e rules and procedures o f the Court, which in this application w as com pliance to the Court order on w hen to file the application. The applicant as pointed out by Mr. Kamara could have applied for an extension o f time under section 93 o f the CPC, w hich he did not. In conclusion, I find the preliminary point o f objection raised with merit and sustain it and proceed to dismiss the application for extension o f tim e under section 3 ( 1 ) o f the Law o f Lim itation, Cap. 89 R.E. 2002. 12 | P a g e