IRENE GABRIEL BAKARI LUGENDO VS NBC Misc

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 27 OF 2018 IRENE GABRIEL BAKARI LUGENDO..................................... APPLICANT VERSUS NATIONAL BANK OF COMMERCE................................... RESPONDENT 24/09&16/10/2018 RULING MWANDAMBO, J.: This ruling seeks to address two but related questions. The first relates to filing of witness statements by a party who delays doing so after the expiry of the time prescribed under Rule 49 (1) of the High Court (Commercial Division) Procedure Rules GN. No. 250 of 2012 (the Rules).The second question is whether the Applicant has met the conditions for the exercise of the Court's discretion under for extension of time to file a witness statement under the provisions cited in the chamber summons. To appreciate the nature of the issues involved a highlight of the relevant facts will be necessary. The Applicant is a 2nd Defendant in Commercial Case No. 141 of 2016. She has lodged the instant application for an order extending time to file a witness statement in respect of one Richard Sana Luhende a handwriting expert who is expected to produce handwriting expert report to prove forgery of signature in a mortgaged deed said to have been executed by the Applicant as security for a loan extended by the Respondent the subject of the main suit. The reason for the failure to file the witness statement within the prescribed period is 1 attributed to the delay in obtaining the report from the police forensic bureau to be attached to the witness statement requested earlier but released later on 21st January 2018 after which the Applicant filed this application on 19th February, 2018. It is contended by the Applicant through an affidavit deponed to by Edwin John Shibuda Advocate from Intel Attorneys hi thereto representing the Applicant that the delay in obtaining the hand writing expert report was outside the Applicant's control. Not amused, the Respondent who is advocated by Ms. Queen F. Allen learned Advocate from K & M Advocates, sees no justification for extension of time branding the application as an attempt to delay the determination of the main suit. Specifically, the Respondent contends that the Applicant had ample time to procure the report much before the expiry of the period prescribed for filing the witness statement which was extended for further 7 days by consent. The learned Advocates for the Applicant and Respondents filed their respective skeleton arguments prior to oral hearing pursuant to rule 64 of the Courts' Rules. Mr. Geofrey Saidi learned Advocate did so for the Applicant contending that the Applicant has disclosed sufficient cause for the Court's exercise of discretion under section 14 (1) of the Law of Limitation Act, Cap. 89 [RE.2002]. According to the learned Advocate the Applicant was prevented by reasonable and sufficient cause from filing the witness statement within the prescribed period consistent with the decision of the Court of Appeal in Vodacom Foundation Versus Commissioner General (TRA), Civil Application No. 107/20 OF 2017 (unreported) which underscored the conditions to be met in applications for extension of time. Such conditions include; reason for the delay, promptness in making the application, accounting for each day of delay and diligence on the part of the Applicant. The learned Advocate for the Applicant submits that his client has met all the conditions for the Court's exercise of discretion under section 14 (1) of the Act. 2 In amplification at the oral hearing, the learned Advocate impressed upon the Court to find that the delay was justified because the Applicant depended on services of an expert who, though requested to release the report promptly, did not do so until 21st January 2018 after which the instant application was filed. Like any good soldier, the learned Advocate invited the Court to extend the time bar the basis of Teresia Mahoza Mganga vs. Administrator General RITA, CAT Civil Application No.5 of 2016 (unreported) in which illegality was discussed as a sufficient ground for extending time. Based on that decision, the learned Advocate submits that the Applicant has disclosed an illegality perpetrated by the Respondent in relation to creation of mortgage which should be considered as a sufficient ground for extending the time for filing an additional witness statement. Ms. Queen Allen learned Advocate for the Respondent has taken issues with arguments by the Applicant's learned Advocate and prays for the dismissal of the application. In the first place the learned Advocate argues that t he filing of witness statement beyond the prescribed by rule 49 (2) of the Court's Rules. The learned Advocate relies on Barclays Bank Tanzania Limited V. Tanzania Pharmaceutical Industries Limited and 3 Others, Commercial Case No. 147 of 2012 (unreported), Tanzania Azimio Construction Limited V. CRDB Bank Limited, Misc. Commercial Application No.138 of 2014 and Afriscan Group (T) Limited vs. Said S. Msangi, Misc. Commercial Application No. 87 of 2013 (all unreported) as authorities for her arguments. It is her further argument that at any rate, the Court extended the time for filing witness statements for both parties on 22/11/2017 and so it cannot extend it any more to the Applicant. Regarding the merits of the application, the learned Advocate submits that the application has been made with unreasonable delay and so the Court not exercise its discretion in the Applicant's favour having regard to (i) the fact that the intended witness statement i s meant counter the Respondent's evidence already filed in Court(ii) the Applicant hasnot been diligent i n procuring the evidence from her witness(iii) no 3 affidavit from the expert explaining away the delay in making the report ready within the time required for filing witness statements in the light of David Mwakikunga vs Mzumbe University, CAT Civil Reference No.121/2004 (unreported) and, (iv) the Applicant did not indicate to make any application during the 1st pre trial conference and so the application was barred under Order VIII A rule 4 of the Civil Procedure Code. Before I discuss the merits and demerits of the application I find it germane to say something on the provisions relied upon and cited in the chamber summons. The Applicant relies on section 14(1) of the Law of Limitation Act, cap 89 [R.E 2002] (the Act), section 95 of the Civil Procedure Code, Cap 33 [R.E 2002] (the CPC) and rule 49 of the Rules. It is plain that rule 49 of the Rules provides for the filing of witness statements and the time for doing so without more. That rule does not provide for belated filing of witness statements and so it is irrelevant to the instant application. On the other hand, section 14(1) of the Act vests power on the court to extend time for filing appeals and applications upon sufficient or reasonable cause being shown. The instant application seeks to extend time for filing a witness statement not filed along with the other statements. With respect, the filing of the witness out of time is not an application in itself so much so that it could be covered by section 14(1) of the Act. This Court has occasion to discuss the application of section 14(1) of the Act in at least two cases and held that the section is inapplicable to applications such as the instant one in National Microfinance bank Pic and Adili Auction Mart vs Salehe Said Nahdi, Misc. Commercial Cause No. 158 of 2015 (unreported) and Alliance Ginneries Limited vs. Kahama Oil Mills Ltd, Miscellaneous Commercial Cause No. 14 of 2015(Mwanza- Unreported). The Court stated in both decisions that a witness statement is neither an appeal nor an application and therefore extension of time for filing the same cannot be granted under that provision. To that extent that section has no relevance but in so far as that is not the only section cited to support the application, its citation is inconsequential on 4 the authority of Bitan International Enterprises Ltd V. Mished Kotak, CAT Civil Appeal No. 60 of 2012(unreported) in which it was held that a wrong provision cited along with a correct enabling provision does not render the application incompetent. I say so because it is trite that where there is no specific provision to support an application, section 95 of the CPC can be resorted to. Since the section has been cited in the chamber summons, I would not find fault in the in the instant application and will thus proceed to discuss the merits of it to which I now turn. From the affidavits and submissions for and against the application there are two but related issues which I consider to be central for my determination. The first is whether it is open for a party who fails to file his witness statement on the date prescribed to file the same subsequently. The second is whether the Applicant has disclosed sufficient cause for the order prayed for in the chamber summons naturally, determination of the second issue will only be necessary if the answer to the first issue turns out to be in the affirmative to which I now turn. The determination of the first issue revolves around a proper construction of rule 49 (1) of the Rules which Ms. Allen made reference to in her arguments. The rule provides that evidence in chief in proceedings commenced by plaint shall be by way of witness statements filed within 7 days from the date of completion of mediation can only mean an unsuccessful mediation. It is common ground that mediation terminated on 6th November 2017 and so witness statements were due for filing by 13th November, 2017 the latest. However, by consent, the period for fling witness statements was extended to 29th November 2017 by leave of the Court. It is not in dispute that in compliance with the said order. The Respondents and the Applicant filed their respective witness statements on 29th November 2017 and that meant that the evidence in chief was already on record and subject to the Court's directions at a final pretrial conference pursuant to rule 50 (c) of the Rules, the witnesses whose evidence was already on the record were to attend cross examination during trial. By simple calculation, the Applicant had 13 extra days to file the witness statement reckoned from 13th November 2017 the last day for filing 5 the same in accordance with rule 49 (2) of the Rules. She did not so only to file the application 83 days from the date of filing the witness statements in pursuance of the Court's Order made on 22nd November 2O17.The learned Advocate for the Respondents has invited the Court to hold that the Applicant's move was but an afterthought aimed at covering gaps in the Applicant's witness statement after reading the Respondent's evidence. This the learned Advocate argues that should not be allowed to happen consistent with the Court's decisions in the cases cited by the learned Advocate for the Respondent. Apparently, Mr. Saidi learned Advocate for the Applicant did not address the Court on the point raised by his learned friend. The cases cited by the learned Advocate for the Respondent have set a rule which prohibits the filing of witness statements of one party after the expiry of the period prescribed under rule 49 (2) of the Rules or extended period fixed by the Court as it were in this application. Barclays Bank Tanzania Limited V. Tanzania Pharmaceutical Industries Limited and 3 others (supra) was the first case to deal with the issue whether it was open to over look the requirements under Rules 48 and 49 (1) and (2) of the Court's Rules. The leaned judge held that failure to file a witness statement was tantamount to failure to procure a witness for examination in chief during the trial with the attendant consequences. Admittedly, the learned judge was not dealing with an application for extension of time like I am doing there but what emerges from that decision is that non compliance with the requirement to file witness statements pursuant to rule 49 of the Rules is fatal. The above decision was consistently followed in subsequent cases in Exim Bank (T) Limited V. Moshi Textile Mills Limited and 2 Others, Commercial Case No. 5 of 2013 (unreported), Tanzania Azimio Construction Co. Limited V. CRDB Bank Limited, Miscellaneous Commercial Cause No.138 of 2014 and Puma Energy Tanzania Limited v. Spec-Check Enterprises Limited, Consolidated Miscellaneous Commercial Cause No. 233 and 252 of 2014 (all unreported). The 6 latter decisions involved applications for extension of time to file witness statements same as I am dealing with in these proceedings. In Afriscan Group (T) Limited V. Said S. Msangi (supra) Mwambegele, J (as he then was) had this to say: "...It is stated in no uncertain terms at rule 49 (1) of the Rules that for every suit commenced by a plaint, evidence-in-chief shall be adduced by way of witness statement. This statement has to be filed within seven days upon failure of mediation. The rule does not envisage a situation where the litigants are not sure of their witnesses in support of their respective cases. This is so because the law, as a tool of regulating social behaviour, abhors uncertainties. Thus, it is presumed that a party to litigation, upon completion of pleadings and particularly upon completion of mediation, must be fully aware of what is required of him as to the prosecution or defence of his case. In my considered view, the seven days which are allotted to the parties within which a statement should be filed are quite sufficient to have a statement of any witness and from anywhere in this global village, procured.... "(emphasis added at page 8) Later at page 9 the learned judge stated: "...Since the purpose of filing and serving the witness statement to an adverse party is to afford an opportunity to assess the same and prepare for cross- examination, it follows that, any party that fails to file the same has no back door through which he can testify more so when such move is deemed to ruin the statements of the witness of the witnesses of the adverse party..." (at page 9) I subscribe to the above statement. It is plain from the cases referred to that once the witness statements are filed in Court pursuant to rule 49(2) of the Rules or as ordered by the Court as it were in this application, there is no room for a party to be allowed to counter the opponent's statements already filed and served on the 7 party who seeks late filing. Quite unfortunate for the Applicant that is the position of the law and as Nchimbi, J stated in Barclays Bank Tanzania Limited vs. Tanzania Pharmaceutical Industries Limited and 3 others (supra) a system of law requires considerable degree of certainly which cannot be attained if courts were free to arrive at a decision without regard to any previous decision citing Dodhia vs. National Grindlays Bank Limited and Another [1970] EA 195 at PP 198 - 209. I made similar reference to that decision in Mtibwa Sugar Estate vs. Siemens Tanzania Limited&2 Others, Misc. Commercial Application No. 163 of 2018(unreported).Cautioning against bending the rules to suit individual cases, Justice Clarke made the following pertinent precaution in Moorview Developments Limited and Others Vs. First Active Pic (2008) IEHC: "It seems to me to be appropriate to start by recalling the old but important adage that by "bending" the existing rules applicable to that type of cases, a court runs a risk that the court may, in the long run, do more injustice in a wider range of cases by, for example; making the law less certain or more capable of uneven application. In an extreme case the relevant jurisprudence might be changed in a way which might, superficially lead to what might appear to be a just solution in the case under consideration but which might be a recipe for significant injustice in other cases."(at page 2). The learned Judge continued at page 3 as follows: "7/7 an attempt to do justice in an individual case should not lose sight of the fact that its approach in the individual case and its determination of the principles by reference to which any discretion should be exercised, need to be seen not only in the context of seeking to do justice in that case, but also against the background of the consequences for the whole range of litigation to which the relevant discretion may be applicable. 8 In the context of the application it will be necessary to refer further to Property Limited V. Edger (unreported, Court of Appeal, England, 21st June, 1996) and the comment made by Lord Wolfe to the effect that; "you have to consider the position not only from the Plaintiff's point of view also from the point of view of the defendant, and with a view to doing justice between other litigants as well." The foregoing was quoted with approval in Mtibwa Sugar Estate vs Siemens Tanzania& 2 Others(supra) and I find the same equally relevant in this application to stress the position to which Nchimbi,J referred to as seen above. Of course there is no gainsaying that the position will remain as it is indefinitely. It is likely to change or modification but for the time being the position of the law regarding belated filing of witness statements in the manner sought in this application remains as expressed in the cited cases. Having regard to the foregoing, I am constrained to take the same position in this application taking into account several aspects including; the time the Applicant had in obtaining an expert report from the intended witness, the fact that my predecessor extended the time for filing witness statements to both parties but the Applicant never indicated to seek more time on the ground she is now alleging in this application and the time the Applicant took to file the instant application counted from the last date of filing the witness statements on 29th November 2017. As rightly submitted by Ms. Allen learned Advocate for the Respondent, the application was but an afterthought intended to counter the Respondent's evidence on the guise of delay in obtaining the expert report. Indeed, section 95 of the CPC under which the application has been made vests the Court with power to prevent abuse of the court process and prevent ends of justice being defeated. I am afraid the Applicant has not properly engaged the Court to exercise its powers under section 95 of the CPC in her favour. 9 In consequence, I hold that it was not open for the Applicant to file additional witness statement after the expiry of the period ordered by the Court. Having so held, I will not deal with the second issue whose determination was dependent on my answer to the first issue. In the event I dismiss the application and I do so with costs. It is accordingly ordered. Dated at Dar es salaam this 16th day of October 2018 L.J>S34wandarnbo JUDGE 16/10/2018 10