MAKUMIRA FILLING STATION VS FBME BANK LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA MISCELLANEOUS COMMERCIAL CAUSE NO. 24 OF 2014 MAKUMIRA FILLING STATION CHARLES AQUILINE I.......................... APPLICANTS CALISTER AQUILINE MAKOI VERSUS FBME BANK LIMITED RESPONDENT 16th & 19* February, 2015 RULING MWAMBEGELE, J.: The three applicants - Makumira Filling Station, Charles Aquiline Makoi and Calister Aquiline Makoi - were defendants in Commercial Case No. 13 of 2014 in which the respondent; a legal person going by the name FBME Bank Limited was the plaintiff. In that suit, the applicants did not file their Written Statement of Defence (WSD) in time. They have filed this application seeking, mainly, the indulgence of this court to extend time within which to file their WSD. The application has been made under Orders VIII Rule 1 (2) and XLIII Rule 2 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 together with any other i enabling provisions of the law. It is supported by an affidavit sworn by Mr. Fidelis Peter, learned counsel from a law firm going by the name of Allen Attorneys. Therein, the learned counsel depones mainly that the summons requiring appearance and filing of the WSD was served to one Aquiline Hotel and by the time it was delivered to the defendants; the applicants herein, on 20.11.2014, it was already out of time. When the suit came up before a judge on 25.11.2014, they were ordered to file an application for leave to file their WSD out of time, hence the present application. The court file does not indicate any counter affidavit filed in opposition to the affidavit filed in support of the application. Instead, when the matter came up before me for hearing, and counsel for the applicants having substantially adopted the contents of his affidavit in his submissions, Mr. Weiwei, learned counsel appearing for the respondent, told the court that the respondent has not been able to file a counter affidavit because the applicants served on the respondent the affidavit by email on the evening of 11.12.2014 and a hard copy thereof was served to them on 12.12.2014. On both occasions, Mr. Weiwei submitted, it was well out of the fixed time for doing so. That notwithstanding, the learned counsel was prepared to proceed with the hearing by making submissions from the bar. Upon being warned on the consequences of doing so, and expressing his full comprehension and readiness to face such consequences, Mr. 2 Weiwei boldly told this court that he was ready to proceed. He opposed the application on both factual and legal stances on three points. On the first point, he conceded that the proceedings in this court are governed by the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (henceforth "the Rules"). It was his view that an application of this nature is governed by Rule 20 (2) under which any application for extension of time to file defense should be taken. Filing the present application under the Civil Procedure Code (henceforth "the CPC"), Mr. Weiwei argued, is irregular and makes the application incompetent. He went on to submit that in the light of Rule 2 (2) of the Rules, the CPC is applicable in this court only in situations where there is a lacuna and since there is no lacuna in the Rules regarding applications for extension of time to file defence, the CPC is inapplicable. At this juncture and immediately, Mr. Fidelis Peter learned counsel for the applicants rose to object to the learned counsel's line of submissions putting that it was rather a preliminary objection which should have been raised by way of a formal notice because otherwise it was an ambush and a surprise on him. Reacting, Mr. Weiwei stated that by submitting the way he did, he was not violating any law. He gallantly put that he has not surprised him as surprises are not on points of law but only on points of facts, to which, 3 Mr. Peter had nothing to rejoin instead of reiterating that the learned counsel should have brought his preliminary objection by way of formal notice. In the interest of time for serving justice, I allowed the learned counsel for the respondent to address me further and accorded liberty to the counsel for the applicants to seek for an adjournment with a view to making preparations for rejoining. On that understanding, Mr. Weiwei went on to submit that since there is no lacuna in the Rules, the instant application is defective for want of citation of enabling provision of the law and as such it should be struck out. On the second point, he submitted that with respect to the assertion at paragraph six of the affidavit that the summons was wrongly served, it is factually incorrect. He stated that this court was satisfied that service was actually effected and that is why it ordered the defendants to file an application for leave to file a defence out of time. He submitted further that this court cannot go back to fault its record in that regard. On the third point, he submitted that the application does not show good cause or sufficient cause to allow extension of time. He stated further that it is clear from paragraphs 6 and 8 of the affidavit filed by the learned counsel for the applicants that the deponent had no personal knowledge of the circumstances which led to failure to file the defence within time. He went on to argue that for this court to fully 4 appreciate the circumstance for the delay, it was necessary that the affidavit of the person with full knowledge of such circumstances be filed. He submitted that failure to file an affidavit to substantiate the relevant facts would make an application devoid of merit. To cement his submission, he cited and supplied to me the Court of Appeal decision in Isaack Sebegele Vs Tanzania Portland Cement Co. Ltd, Civil Reference no.26 of 2004. He rested his submission by beckoning the court to dismiss the application with costs. Mr. Peter was given time within which to rejoin. When the court resumed in the afternoon, he rejoined with regard to the first point that though clearly the proceedings of this court are governed by the rules of this court and particularly the cited rule 20 (2), the application was also made under "any other enabling provisions of the law". The chamber summons was therefore not based only on the provisions of the CPC. This being the case, it was his view that the non-citation complained of by the counsel for the respondents was not fatal. He went on to state that the Rules under Rule 4 provide for administration of substantive justice without undue regard to technicalities. He also sought reliance on Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977. He therefore prayed that the preliminary objection should be dismissed. 5 Regarding the second point, it was his response that it is within the court record that summons was served to Aquiline Hotel and not to any of the defendants. As to the third point, he reiterated that the summons was sent to Aquiline Hotel and not the applicants. It was his view that the case cited by the learned counsel for the respondent has no relevance in the case at hand because in the present case the summons was served and further that proof of service shows that it was done on someone else not on the applicants. He thus was of the view that the applicants have shown sufficient reasons why they did not file their WSD in time and prayed for the application to be granted. I have subjected the rival submissions of both learned counsel to serious scrutiny in the light of the entire record of this case which I have sufficiently scanned. Inasmuch as I appreciate the lucidity of the arguments of both learned counsel, I must admit, though not tasking as such, they have intrigued my mind. From the respondent's counsel's courage to proceed from the bar, to the staunch resistance put up by the counsel for the applicants regarding the competence of the application, all call for applause from this court. The foregoing notwithstanding, and having given ample consideration to each and every argument, both factual and legal for and against the 6 application, I am of the certain view that the application is so frail. I shall demonstrate. I start with the argument as to the enabling provision of the law. Indeed, as rightly argued by the learned counsel for the respondent, and readily conceded by the counsel for the applicants, proceedings in this court; the Commercial Division of the High Court, are now governed by the Rules whose overriding objective is timely, effective and efficient dispensation of justice. The Rules came into force on 01.07.2012. That being the state of affairs, as far as civil proceedings are concerned in the Commercial Court, the provisions of the CPC, as rightly submitted by the learned counsel for the respondent, will be brought into play only when there is a lacuna in the Rules. This is the tenor and import of Rule 2 (2) of the Rules. Rule 20 (2) of the Rules envisages a situation where the defendant is unable to file a WSD within the twenty one days provided for under sub-rule 1, and thus accords him a chance to bring it out of time by filing an application for extension of time within which to file the same. However, the permission to do so, in terms of this rule, must be sought before the expiry of the twenty one days or within seven days thereafter. And the sub-rule is flexible in favour of the applicant in that he may choose to prefer this application to a registrar. The Rules define the term - Registrar" to mean the Registrar of the Court and shall include Deputy Registrar and any person acting in that capacity. And a ruling thereof has to be promptly delivered. That 7 notwithstanding, the court has power to grant extension of time for not more than ten days. In the same vein, but alternating artery, the CPC provides for extension of time within which to file a WSD. However, in the Code, a permission to do so, can be sought and granted within twenty one days after the expiry of the twenty one days required for filing a WSD. Put in simple terms, under the CPC a defendant has a total of forty two days within which he can bring his WSD; he has the twenty one automatic days for doing so and other twenty one court discretional days. Apparently, there are material differences in these provisions; under the CPC and under the Rules. Whereas the defendant has a total of forty two days under the CPC, he has only thirty one days under the Rules for bringing a defence. Also, whereas the application must be brought before expiry of the time provided for filing a defence or seven days thereafter in the Rules, under the CPC, a defendant can seek for a permission to do so provided the twenty one days have not lapsed after the expiry of the former twenty one days. At this juncture, I must hasten to make an observation that the Rules were not made to destroy the CPC or frustrate it in anyway, but, rather, to accomplish its objective - dispensation of civil justice by way of supplement. Thus, the Rules, as they are, do not in any way conflict with the CPC in that the objective to ensure that justice is administered 8 and parties are accorded equal opportunity to be heard is attained through the Rules. Reverting to the matter at hand, the question in our midst is, under which law between the CPC and the Rules should an application of this nature be preferred? Or, put differently, is it proper to prefer an application of this nature under both the CPC and the Rules? Mr. Fidelis Peter seems to be of the affirmative view with regard to the latter question. He has submitted that the chamber summons in the present application is not only limited to the CPC because there is a phrase "any other enabling provisions of the law". In that accord, he suggests that even the said rule 20 (2) of the Rules is covered within the phrase "any other enabling provisions of the law". With due respect to Mr. Fidelis Peter, I find myself unable to sail with him on this one. I shall explain explain. As intimated hereinabove, under the Rules, the course to be taken by the applicant and the timings within which an application has to be brought are not the same as that under the CPC. Again, as already alluded to above, whereas the CPC grants extension of time within twenty one days, the Rules require the party concerned to be proactive and seek for extension either before expiry of the said period or within seven days after the expiry and this court cannot grant extension of more than ten days. 9 It follows therefore that citing more than one legislation which, apart from providing for the same remedy, they do so on varied terms, is not only undesirable for multiplicity but also brings confusion. It cannot be said to attain the desired end result, for it is not the Court's duty to choose which course to follow but the dictates of the law. It is for this reason that the law requires specificity and propriety in citing the provisions of the law under which an application is preferred. Wrong or non-citation of provisions of the law to move the court makes the application incompetent. That this is the position of the law has been stated in a number of cases decided by the Court of Appeal. One of such cases is Gautam Jayram Chavda Vs Covell Mathews Partnership [2004] TLR 280. In that case, the Court of Appeal speaking through Rutakangwa, J.A, traces the development of this law from the defunct Court of Appeal for East Africa in Abdul Aziz Suleman Vs Nyaki Farmers Cooperative Ltd. & Another [1966] E.A. 409 to the present Court of Appeal of Tanzania decisions in National Bank of Commerce Vs Sadrudin Meghji, [1998] TLR 303, Almas Iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 22, Citibank Tanzania Ltd. Vs Tanzania Telecommunications Co. Ltd. & 4 Others, Civil Application No. 64 of 2003 (unreported) and M/S Ilabila Industries Ltd. Vs Tanzania Investment Bank & Another, Civil Application No. 159 of 2004 (unreported). io There are other decisions of the Court of Appeal on the subject such as Milacafe Ltd Vs Norman Al-Mahboub, Civil Application No. 82 of 2004 (unreported), China Henan International Co-operation Group Vs Saivand K. A. Rwegasira [2006] TLR 220, NBC (1997) Ltd Vs Thomas K. Chacha t/a Ibora Timber Supply (T) Ltd Civil Application No. 3 of 2000 (unreported), Antony J. Tesha Vs Anita Tesha, Civil Application No. 10 of 2003 (unreported) and Edward Bachwa & 3 Others Vs the Attorney General & Another, Civil Application No. 128 of 2006 (Unreported). In all these cases, the Court of Appeal Tanzania did not mince words. The law is now settled that wrong or non citation of provisions of the law in support of an application is incurably fatal. It makes an application incompetent and in all the above cases the applications did not escape the wrath of being struck out. The results are the same even in situations where a proper section but wrong subsection of that provision is cited. As regards to the phrase "any other enabling provisions of the law", I am of the considered view that the same cannot not save the applicant's day. In my considered opinion, and based on my analysis of the two provisions purported to have been cited in tandem in this application, the phrase cannot be interpreted as a gap-filler for procedural misfits such as of this nature where the party fails to expressly cite an enabling provision of the law. This court (Mihayo, J.) has had time to discuss this ii phrase in occasions more than once. In Janeth Mmari Vs International School of Tanganyika & Another, Miscellaneous Civil Cause No. 50 of 2005 (unreported), His Lordship had this to say: "This song, 'any other enabling provisions of the law' is meaningless, outdated and irrelevant. The court cannot be moved by unknown provisions of the law conferring that jurisdiction. That law must therefore be known. Blanket embellishments have no relevance to the law nor do they add any value to the prayers to the court". (Emphasis not mine). His Lordship had another opportunity to comment on the phrase in Elizabeth Steven & Another Vs Attorney General, Miscellaneous Civil Cause No. 82 of 2005 (unreported) in the following terms: "The phrase any other provision of law is now useless embellishment, the law is now settled". In the light of the foregoing, it is obvious that the court cannot be moved by unknown provisions of the law. Having observed that the 12 applicant has cited wrong provisions of the law to move this court, the application cannot stably stand on "any other enabling provisions of law" as suggested by the learned counsel for the applicants. To properly move the court, it is imperative that proper provisions of the law under which the application is made, are cited. To act on the applicants' application, the court cannot be moved by unknown provisions of the law. Further, the learned counsel for the applicants seems to seek refuge in Rule 4 of the Rules and Article 107A (2) (e) of the Constitution. For easy reference, let me reproduce these provisions so as to appreciate its input and applicability to the present application. Rule 4 of the Rules provide for the spirit under which the Rules should be administered. It states: "The Court shall in administering these Rules, have due regard to the need to achieve substantive justice in a particular case." And Article 107A (2) (e) of the Constitution reads (in official version): "(2) Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, mahakama zitafuata kanuni zifuatazo, yaani: (a) ... 13 (b) ... (c) ... (d) ... (e) Kutenda haki bila ya kufungwa kupita kiasi na masharti ya kifundi yanayoweza kukwamisha haki kutendeka" The above provision was translated by the Court of Appeal in the Judge In-charge High Court Arusha l/s N.I.N. Munuo Ng'uni [2004] TLR 44 as follows: "(2) In the determination of civil and criminal matters according to law, the courts shall have regard to the following principles, that is to say: (a) - (b) ... (c) ... (d) ... (e) administering justice without being constrained unduly by technical requirements, which are capable of preventing justice from being done". 14 And in Samson Ng'waiida Ks Commissioner General of Tanzania Revenue Authority, Civil Appeal No. 86 of 2008 (unreported) the same court translated it as follows: "(2) In the delivering decisions in matter of civil and criminal nature in accordance with the law, the courts shall observe the following principles, that is to say: (a) ... (b) ... (c) ... (d) ... (e) to dispense justice without being tied up with undue technical provisions, which may obstruct dispensation of justice". The official version of the Constitution of the United Republic of Tanzania, 1977 is the Kiswahili version. The gist of the provisions of Rule 4 of the Rules and article 107A (2) (e) of the Constitution is that the courts, in dispensing justice, should not be tied up with undue technical provisions of the law which may thwart the dispensation of justice. As good luck would have it, courts in this jurisdiction have interpreted what Article 107A (2) (e) of the Constitution entails. It has been held that wrong or non-citation of a 15 provision of law in support of an application is not a technicality envisaged by Article 107A (2) (e) of the Constitution. One of such cases is China Henan International Co-operation Group Vs Salvand K. A. Rwegasira [2006] TLR 220, in which the Court of Appeal, I quote from the headnote, had this to say: "The omission to cite the proper provision ... or citing wrong provision and inapplicable rule in supporting the application is not a technicality falling within the scope and purview of Article 107A (2) (e) of the Constitution". In the light of the foregoing authorities and provisions of the law, I am satisfied that Rule 4 of the Rules and Article 107A (2) (e) of the Constitution do not save the applicants; for wrong or non citation of a provision in supporting the application is not a technicality falling within the realm Rule 4 of the Rules. Neither is it one envisaged by the provisions of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977. In the result, since the CPC applies in this Court only where there is a lacuna in the Rules, and since the application filed by the applicants under wrong provisions of the law cannot stand on the legs of "any other enabling provisions of the law", and since I have found and held 16 that wrong or non citation of a provision in supporting the application is not a technicality falling within the realm of Rule 4 of the Rules and Article 107A (2) (e) of the Constitution, the present application is incompetent and, on that score, it deserves to be struck out. I wish to add that the provisions of Rule 4 of the Rules and Article 107A (2) (e) of the Constitution should not be interpreted as to mean perpetuation of utter disregard of the clear letters of the law. The foregoing being the finding, I refrain from going into the nitty gritty of the application as the point of law brought to the fore by Mr. Weiwei disposes the matter. This court cannot go into the merits of an incompetent application, for, taking that course, may pre-empt further decisions on the application. That is, should the applicant decide to re­ file the same under proper provisions of the law. Before I pen off, I feel obliged to comment, by way of postscript, on the way the counsel for the respondent has mounted his preliminary objection against this application. I do so for the wellbeing of procedural justice. The counsel for the applicant has complained that it is an ambush or rather a surprise. That it should have been raised formally by way of a notice of preliminary objection so as to avoid the surprise. The respondent's counsel instead stuck to his guns that there never can be surprises on matters of law. To this, he had no authority to back his assertion up but promised to avail some to this court as the same were in his office in Dar es Salaam, though in the end, the 17 promise was never fulfilled. And my research on the point has not come across any. I shared the sentiments of the counsel for the applicants then and I share them now. That is perhaps the reason why I gave him time to prepare for the response to the preliminary objection; to make amends for the surprise. Admittedly, this being a point of law, it can be raised at any time but what is important is that a reasonable notice must be given to the other party so as to enable it prepare for the same and not being raised when responding to the submissions of the applicants during the hearing of the application as happened in the present instance. As the Rules are silent on the point, a resort can safely be made to the provisions of Order XIV Rule 2 of the CPC for further elucidation. These provisions read: "Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined." 18 As the point raised by the learned counsel for the respondents could have disposed of the application from the outset, I am of the considered opinion that it ought to have been raised as a preliminary point of objection prior to the hearing of the application by giving a notice thereof well in time. The rationale behind this stance is to give the other party adequate time to prepare for the same. I find fortification on this stance in the case of M/S Majembe Auction Mart Vs Charles Kaberuka Civil Appeal No. 110 of 2005 (CAT unreported). In that case, underscoring the importance of giving reasonable notice to avoid surprising the other party, the court of appeal, speaking through Lubuva, J.A, stated: "... it is clear that reasonable notice of the preliminary objection is to be given to the other ... The logic behind this provision hardly needs to be overemphasized. With the notice given within reasonable time, the other parties to the appeal would not be taken by surprise. In that situation the parties would be in a position to respond in advance to the issues raised in the preliminary objection. It is to be emphasized that in fairness to the parties and in the interest of justice, counsel intending to raise preliminary objection are enjoined as far 19 as possible to serve the notice of preliminary objection within reasonable time. ..." (See also the persuasive decision of the High Court of Kenya in the case of Registered Trustees of Catholic Archdiocese of Nyeri and another Vs Standard Ltd and others [2003] 1 EA 257). Be that as it may, in the present matter, the problem was resolved by giving adequate time to the applicants to respond to the preliminary point of objection. In the actual fact, Mr. Fidelis Peter, learned counsel for the applicants, having made adequate preparations for the response, asked the court to resume well before the time allotted to him for the preparations. The preliminary objection was therefore argued in the manner it surfaced and no ends of justice were offended in so doing. It is this very preliminary objection which has disposed of this application. The above said and done, this application is incompetent and is consequently struck out with costs. Order accordingly. DATED at ARUSHA this 19th day of February, 2015. J. C. M. MWAMBEGELE JUDGE 20