KISASI FINANCE LTD VS CELLULLANT T LTD COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 21730 OF 2024 KISASI FINANCE LIMITED………………….…………………………..PLAINTIFF VS CELLULLANT TANZANIA LIMITED……………….……………………DEFENDANT RULING Date of last order: 15/10/2024 Date of Ruling: 15/11/2024 HON. GONZI, J. The plaintiff instituted this suit praying for Judgment and decree of the Court against the defendant for several reliefs as follows; a. That the Honourable Court be pleased to declare that the Defendant has breached the Contract entered into with the Plaintiff. 1 b.That the Honourable Court be pleased to order the Defendant to pay Specific damages, principal sum to the tune of Tshs. 1,402,550,508/= c. That the Honourable Court be pleased to order the Defendant to pay interest at Commercial rate i.e. 21% on the decretal sum from the date of filing the suit until the date of payment in full. d.That the Honourable Court be pleased to order the Defendant to pay the Plaintiff general damages for the financial loss, inconvenience, and loss of business suffered as a result of the Defendant’s breach of the Contract. e. That this Honourable Court be pleased to order the Defendant to pay the Plaintiff costs of this suit, including but not limited to legal fees, 2 Court fees, and any other costs incurred by the Plaintiff in pursuing this claim. f. Any other relief (s) deemed fit. On 09/09/2024 the defendant was served with summons to file the written statement of defence (WSD) by 30/09/2024. On 15/10/2024 when the matter was scheduled for 1st PTC, Mr. Shalom Msaki, Learned Advocate for the Defendant, prayed for extension of time to file the Written Statement of Defence relying on Order VIII Rule 1 (3) of the Civil Procedure Code CAP 33 R.E 2019. He admitted to have been served with summons on 9/09/2024 but that by then they had not yet received any official instructions from the Defendant. He stated that the 21 days were lapsing on 30/09/2024 the day which they were officially instructed to act for the Defendant. he stated further that he anticipated to seek for extension of time orally in Court on 2/10/2024 as it had been indicated in the summons that the case was scheduled to be called in Court on that date and he found that it would still have been within the 7 days under Order VIII Rule 3 of the CPC. He stated that to the contrary, they were unable to seek an extension of time orally before the Court as they were 3 informed that the summons was erroneously similarly to another case bearing the same case number, but that their case would come on a later date. Mr. Bakari Ndeke, Learned Advocate for the Plaintiff, opposed the application. He stated that the summons served upon the Defendant clearly and properly indicated that the time to file the Written Statement of defence would lapse on 1/10/2024. He further stated that the Learned Counsel for the Defendant had mentioned the provisions of the CPC which are not applicable, rather the High Court Commercial Division Procedure, Rules 2012 as amended in 2019, under Rule 22, is the applicable law that requires a WSD to be filed within 21 days of service of the plaint and summons to file WSD. He argued that if time had lapsed, the Defendants were required to seek an extension of time within 7 days that is by 8/10/2024, which was not the case. Mr. Ndeke submitted that the issue of instruction is personal between Advocate and client and that the Rules do not in whatsoever manner provide an exception that a party should await to instruct an advocate before acting. He prayed to be allowed to proceed exparte against the Defendant as the 4 Defendant did not act judiciously and thus violated the Commercial Court Rules. He further prayed to file Form No.1 and an Affidavit of proof of the claim under Rule 22(1) of the Commercial Court Rules. In his rejoinder Mr. Msaki, Learned Advocate, retracted the cited provision of the CPC and quoted Rule 22 of Commercial Court Rules as the applicable provision and added that the same is in pari materia to the corresponding provision of the CPC. He maintained that they were not instructed by the client on time hence they had no locus to draw or file documents without mandate. He added further that the summons served could not be acted upon as there were errors on the case number as that case was before Hon. Agatho, J. He emphasized that the Summons served upon his client had fixed the date of appearance in Court on 2/10/2024 where they appeared in Court but their case was not called as it had actually been scheduled for 15/10/2024. He prayed that in the interest of justice, the Defendant be granted an extension of time to file WSD without costs. I have considered the prayer and the submissions by both parties for and against the extension of time to file the Written Statement of Defence 5 in this case. Rule 20(2) of the High Court Commercial Court Division, Rules 2012 as amended on 2019 provides as follows: “A judge or a Registrar, may upon an application by the defendant before the expiry of the period provided for filing defence or within seven days after the expiry of that period showing good cause for failure to file such defence, extend time within which the defence has to be filed for another ten days and the ruling to that effect shall be delivered promptly.” It is undisputed by both parties that summons to file WSD was correctly served upon the Defendant on 09/09/2024. The 21 days’ time limit for the Defendant to file WSD ended on 30/09/2024, and the 7 days within which the Defendant could apply for an extension of time lapsed on 7/10/2024. The Defendant appeared and addressed the Court seeking an extension of time to file the WSD on 15/10/2024 after the lapse of 28 days. Does the Court have jurisdiction to grant extension of time when an application is made beyond the prescribed 7 days after expiry of the initial 21 days? This Court when faced with a similar situation in the case of S.B 6 Merali Company Limited v Camusat Tanzania Limited [2024] TZHCComD 267(Tanzlii), at page 9, the Court stated thus: In relation to the above excerpt the Court lacks Jurisdiction to extend time to file WSD as there is no room provided by the law to extend beyond the 28 days. “The Rule stated in Kalyango Construction and Building contractors Ltd v China Chongquin International Construction corporation (cico) (supra) reflected the 42 days rule that reflected the then prevailing position of the law. That is to say a Defendant could not be granted an extension of time to file WSD if the Defendant failed to do so within 42 days from the date of being served with the Plaint and summons to file the WSD. I find that the same spirit prevails under Rule 20(2) of the Commercial Court Rules, which governs the present application by Mr. Aron Koyugi, Learned Advocate for the Defendant. The 42 days rule has now become the 28 days rule but with the same implications. I subscribe to the position taken in the case of Primi Aloyce (supra). I find that after the lapse of the prescribed period of 28 days, the Court has no jurisdiction now to grant an extension of time to file WSD. The law 7 has statutorily fixed the period of 28 days. The provision is clear and attracts a plain meaning to be ascribed to it.” On the basis of the foregoing legal position, I hold that the Court has no jurisdiction to extend time to the Defendant to file WSD if the application for extension of time is made beyond 7 days after expiry of the 21 days within which the WSD should have been filed. However good the reasons are, the Court has no jurisdiction after the lapse of 28 days from the date the Defendant was served with the WSD. By way of passing, I should state that in my view, even if the Court had the requisite powers to grant the extension of time after the lapse 28 days, the reasons for delay presented in this case would not have sufficed to warrant the Court to exercise its discretion in favour of the Defendant. going by the words of the Learned Counsel for the Defendant, the the Defendant attended the Court on 02/10/2024 at a time when he was within the 7days grace period of praying for an extension of time, but he failed to apply for the extension of time allegedly because the date indicated in the summons was erroneous and the case was not actually being called on that date. Believing the learned counsel for the Defendant, though he addressed 8 the Court without an affidavit, it would mean that the Defendant still had 5 days ahead before expiry of the 28 days, that is, from 02/10/2024 to 07/10/2024. Why didn’t the Defendant make an application foe extension of time to file WSD within the remaining days? On 02/10/2024, Mr. Msaki, allegedly was in Court where he discovered the case number and the date in the summons served upon them were erroneous, also he was able to obtain on that date in Court the correct date and time of their case and that is why he correctly appeared before this Court on the next scheduled date. This entails that from 02/10/2024, the Defendant’s Counsel had the correct information about the next date in Court and the remaining time before expiry of the 28 days’ time limit within which to file the WSD. However, the Defendant allegedly decided to wait for an opportunity to appear in Court physically and pray orally before the Court for the extension of time while knowing very well that by the next date the case would be called in Court, the 28 days would have thereby expired hence rendering the Court without jurisdiction. In my view that conduct was not reasonable or diligent. An application for extension of time is not necessarily to be made before the Court orally. To beat the deadline, it was possible for the Defendant to lodge written application in Court before expiry of the 28 9 days. It could have been made through Chamber Summons and Affidavit as provided under order XLIII Rule 2 of the Civil Procedure Code, it provides thus: “Every Application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit: Provided that the Court may where it considers fit to do so entertain the Application made orally or where all the parties to the suit consent to the order applied for being made by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the Application is made.” In the upshot, the defendant’s prayer for extension of time is hereby denied as the Court does not have jurisdiction to grant extension of time after lapse of 28 days since the Defendant was served with summons to file WSD. In the absence of the WSD by the Defendant, I proceed to grant the prayer made by Mr. Ndeke, Learned Advocate for the Plaintiff. The Plaintiff is hereby allowed to make an application for Default Judgment under Rule 22 of the Commercial Court Rules. I make no order as to costs. It is so ordered. 10 A. H. GONZI JUDGE 15/11/2024 Ruling is delivered in Court this 15th day of November, 2024 in the presence of Mr. Paul Kaunda, Advocate for the Plaintiff and Mr. Shalom Msacky Advocate for the Defendant. A. H. GONZI JUDGE 15/11/ 2024 11