20100215 TZHC Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: MSOFFE, J~ A., MBAROUK, J. A. And LUANDA, J. A.) ··-- .. ·cIVIL_APPEAL NO. 86 OF 2007 MIC TANZA~IA LIMITED ...,................. :........................... APPELLANT VERSUS HINDOW CELLULAR PHONES LIMITED ....................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam)· (Kalegeya, J.) dated the 15 th day of March, 2007 in Civil Case No. 84 of 2003 JUDGMENT OF THE COURT 9 February & 3 March, 2010 MSOFFE, J.A. The respondent filed a plaint on 23/4/2003. On 26/5/2003 the appellant was served with a copy of the plaint together with a summons to file a written statement of defence within 21 (twenty one) days of the service. That was not done. On 23/9/2003 the appellant filed an application seeking (i) leave to apply for· extension of time to file a written statement of defence, and subject to prayer (i) being granted, (ii) enlargement of time within which to file the written statement of defence. On 15/3/2007 the High Court (Kalegeya, J. as he then was) invoked the provisions of Order VIII Rule 1 (2) of the Civil Procedure Code (CAP 33 R.E. 2002) (hereinafter the Code) and dismissed the application. He then proceeded to pronounce a judgment in favour of the respondent in terms of Order VIII Rule 14 (1) of the Code. The appellant has come with this appeal. Before this Court Mr. Waziri Mchome, learned counsel, represented the appellant. Dr. Fauz Twaib, learned advocate, appeared for the respondent. Mr. Mchome had two grounds of appeal. Firstly, he said that the learned judge erred in pronouncing a judgment against the appellant without first requiring the respondent to prove its claim. Secondly, Mr. Mchome heavily relied on Section 93 of the Code which provides for extension of time at any time. He submitted that in view of the provisions of Section 93 it was not fair for the judge to say that his hands in the matter were tied. In reply, Dr. Twaib generally supported the learned judge that having dismissed the application it was logical to pronounce the 2 judgment in question. He cited a number of authorities, notably Halsbury's Laws of India; Civil Procedure, Vol. 7. As already stated, the judgment was entered under Order VIII Rule 14 (1) of the Code which provides:- 14 (1) Where any party has been required to present a written statement under sub-rule {1} of rule 1. or a reply under rule 11 of this Order and fails to present the same within the time fixed by the court the court shall pronounce judgment against him or make such order in relation to the suit or counterclaim, as the case may be, as it thinks fit. (Emphasis supplied.) It will be observed at once that the above sub-rule applies "where a summons to appear" has been issued under sub-rule (1) of rule 1. In this case, "a summons to file a defence" was issued. So, the judge ought to have proceeded under Rule 14 (2), which reads:- (2) In any c~se .in which a de(endant who is required under sub-rule (2) of rule 1 to present his defence fails to do so within the period 3 specified in the summons or, where such period has been extended in accordance with the proviso to that sub-rule/ within the period of such extension/ the court may - (a) where the claim is for a liquidated sum not exceeding one thousand shillings/ upon proof by affidavit or oral evidence of service of the summons/ enter Judgment in favour of the plaintiff without requiring him to prove his claim/ (b) in any other case/ fix a day for exparte proof arid. ·mi!ly ·pronounce judgment in favour of the plaintiff upon such proof of his claims. (Emphasis supplied) The claim in this case was for a liquidated sum exceeding one thousand shillings. It was imperative upon the judge to exercise his discretion and thereby invoke paragraph (b) above, and fix a day for exparte proof. Apparently he did not do so. It occurs to us, therefore, that the first ground of appeal has merit. 4 This brings us to the complaint in the second ground of appeal. On this, we are not treading on new ground. Fortunately, the point was discussed at length and put to rest by this Court in Tanzania Harbours Authority v Mohamed R. Mohamed, Civil Appeal No. 80 of 1999 (unreported). For ease of reference, we reproduce hereunder in full the relevant portions of the judgment, even if it is at the expense of making our judgment a bit long:- ..... the question before us is whether extension can be made at any time as provided by section 93 or is restricted _to within 21 days after the expiry of the provided time under O VIII R 1(2). Section 93 of the CPC provides: Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code/ the court ma½ in its discretion/ from time to time/ enlarge· such period, even though the period originally fixed or granted may have expired. 5 Admitted!½ and as submitted by Mr. Mnzava/ that section imposes no restriction whatsoever in the court's discretion in extending time. However, the proviso to O VIII R 1(2) prescribes as follows: Provided that the court ma½ within twenty-one days of expiration of the prescribed period, grant an extension of time for presentation of the written statement of defence on application by the defendant. Here the limitation is imposed on the discretion of the court to extend the time within which the defendant can file a WSD. The application must be made within 21 days of the expiry of the time set for the lodging of the WSD. Before the amendment that proviso read as follows: ', I. Provided that the court may extend the period for the presentation of the written statement of defence on application by the defendant or on receipt of a notice in , writing of the plaintiff's consent to such extension. 6 Two things are glaring to the eye in the new proviso: one/ an application has to be within 21 days of the expiry of the time for filing the WSD; and two/ the consent of the plaintiff to an extension of time is dispensed with. Now, this is not without significance and we agree with Mr. Magesa that this Court cannot ignore the new proviso. The appellant was late for about 187 days after the time given by the court for filing the WSD. Thi~ to say the least is inordinate delay. - .... , ;: :· . •. ., • t •. Admittedly, this Court has said in a number of decisions that time would be extended if there is an illegality to be. rectified. However, this Court has not said that time MUST be extended in every situation. Each situation has to be looked at on it own merits .. :... The reason given by Mr. Mchome to explain the delay is as reflected in paragraphs 4 to 8 of the affidavit sworn by Mr. J. Mbuna in ,·. support of the application for enlargement of time. The paragraphs read as follows:- 7 4. That by the time the Applicant was served with a Plaint together with a summons, the date originally indicated in the summons was 24h June, 2003 which means that the Applicant was served after the date indicated therein. However, /hat date was cancelled and another date was indicated as the date for mention and this was Jgh July, 2003 which was a Saturday. 5. That the Applicant intended to make an oral application for extension of time. But, the problem as aforementioned was that the applicant was served after the mention original date Indicated in the summons and the other mention date was fixed on Saturday 1 gh July, 2003. 6. That the other date for mention was fixed on 1gh August, 2003 but for reasons not known to us Mr. Kiozya Learned Counsel who held our brief overlooked the instruction and instead he asked for another · date for mention on the ground that on that date we shall ask for extension of time. The case • • • • : : T • .- ., : • • • • .~; .- • • • - • 8 was fixed for mention on Sh November, 2003. 7. That as the date fixed for mention is too far we wrote a letter with Ref. No. MC/94/2003 dated l!fh August, 2003 asking that the case be placed before His Lordship so that a early mention date can be fixed with a view of praying for extension of time. Annexed hereto and marked ANNEX "MIC-2" is a copy of the said letter. 8. That the Applicant's application is being made in lieu of the intended oral application which has not been made to date because the case has not· ·yet · been called for .. mention. With respect to the appellant, as correctly remarked by the judge and supported by Dr. Fauz .in his ..oral .submission before us, while all this was happening the appellant company had .a summons requiring it to file a written statement of defence within 21 days. Surely, since the appellant company already had the summons it ought to have taken prompt action within the time(s) stipulated by the law. As happened here, ultimately there was a delay of almost three months in filing the 9 application for enlargement of time. By that time, the initial 21 days and the subsequent 21 days provided for under the proviso to Order VIII Rule 1 (2) of the Code had already expired. The appellant company was itself to blame for the negligence exhibited in the failure to take action within the period(s) prescribed by the law. For the above reason, the second ground of appeal has no merit. In the end, we allow the appeal in the first ground and dismiss it in the second ground. Consequently, we hereby direct the High Court to reconstitute itself and determine the respondent's case exparte in line with Order VIII Rule 14 (2) of the Code. Since we have allowed the appeal partly there will be no order as to costs. DATED at DAR ES SALAAM this 15th day of February, 2010. J. H. MSOFFE JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. 11