NATIONAL CHICKS CORPORATION LTD VS NBC MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLCATION NO. 67 OF 2015 (CF COMMERCIAL CASE NO 11 OF 2014) NATIONAL CHICKS CORPORATION LIMITED ISSACK BUGALI MWAMASIKA HAROLD ISSACK MWAMASIKA APPLICANTS ATUGANILE ISSACK MWAMASIKA INNOCENT ISSACK MWAMASIKA 7 VERSUS NATIONAL BANK OF COMMERCE............................................ RESPONDENT 14th June & 4th November, 2015 RULING MWAMBEGELE, J.: This is a ruling in respect of an application for, inter alia, extension of time within which to file the witnesses' statements. The application has been taken by the applicants under the provisions of sections 93 and 95 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (hereinafter "the CPC") read together with rule 2 (2) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 2002 published on 13.07.2012 (hereinafter "the Rules"). It is supported by an affidavit sworn by Issack 1 Bugali Mwamasika; the second applicant and David Kahabi; a person employed as a secretary in the law firm going by the name Marando, Mnyele & Co. Advocates. The application is resisted by the counter-affidavit of Mr. Gaspar Nyika; the respondent's counsel and advocate of this court and courts subordinate hereto save for the Primary Court. Mr. Issack Bugali Mwamasika and David Kahabi also swore their respective replies to the counter-affidavit. The application was argued before me on 14.06.2016 during which Prof. Gamaliel Mgongo-Fimbo and Mr. Mpaya Kamara, both learned counsel, joined forces to advocate for the applicants and Mr. Gaspar Nyika, also learned counsel, advocated for the respondent. Both parties had earlier filed their respective skeleton written arguments ahead of the oral hearing as dictated by the provisions of rule 64 of the Rules. At the oral hearing, both parties, through their learned counsel, sought to adopt their affidavits and counter­ affidavit (as the case may be) as well as their respective skeleton arguments. Let me state at this stage that the present ruling was slated to be handed down on 03.08.2016 but as I was outside the station for a special assignment upcountry which ended on 22.09.2016, it could not be delivered as planned. Now back to the submissions by the learned counsel. Arguing for the application, Prof. Mgongo-Fimbo, learned counsel for the applicants kicked-off by some background material facts of the application to the effect that hearing of the counterclaim in Commercial Case No. 11 of 2014 commences after being stayed by order of this court (Nyangarika, J.) pending final determination of Civil Case No. 79 of 2012 at the Dar es Salaam District Registry of the High Court. Then Mr. Kamara, learned counsel, took over and went on to submit that after failure of mediation, the applicants did not file the witness statements within 7 days (of the failure of mediation) as prscribed 2 by the Rules because of unavailability of supporting documents for the witnesses' statements owing to illness of Counsel; Mr. Mabere Marando who was in possession of the same. The learned counsel stated that failure by the applicants to file the statements has not been caused by any dilatory conduct and therefore the applicants should be allowed to file them out of time. He relied on Shanti l/s Hindocha [1973] EA 207 for this stance. He added that the present application was immediately lodged as soon as the documents became available and to that extent the applicants have not been dilatory. The learned counsel also submitted that the counterclaim involves two points of law of sufficient importance to warrant extension of time. Like was held by the Court of Appeal of Tanzania in the Principal Secretary, Ministry of Defence and National Service Vs D.P. Vaiambhia [1992] TLR 387, a point of law of sufficient importance constitutes sufficient reason within Rule 8 of the Court of Appeal Rules, he argued. He stressed that the point of law involved in the counterclaim are; one, whether the money for overdraft facility for working capital was converted into term loan when it was disbursed by the bank and utilized by the customer to effect further construction by purchase of capital goods from China and South Africa with the sanction of the bank. Two, whether loan agreement between the parties attracted compound interest (as shown at paragraph 36 (iv) of the counterclaim. The case of National Bank of Commerce Vs Wakulima Engineering Company and Two Others, [2005] TLR 273 was cited for the definition of compound interest as interest charged on interest. In that case, unlike the present, the loan agreement made express provision in clauses 4 and 7. On these arguments, the learned counsel urged the court to analogize 3 with applications for extension of time under Rule 8 of the Tanzania Court of Appeal Rules and grant the orders sought. Responding and arguing against the application, Mr. Nyika, learned counsel, submitted that the law on extension of time is that the applicant has to disclose sufficient reason to justify the delay and to allow the court exercise discretion to extend time. On the discretion of the court in granting extension of time, the learned counsel relied on the following statement in Benedict Mumello Vs Bank of Tanzania, Civil Appeal No. 12 of 2002 (CAT unreported): "It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that extension of time is where it has been sufficiently established that the delay was with sufficient cause." The learned counsel added that the law requires an applicant who files an application for extension of time to show sufficient reason why such extension should be granted; he cited Jaiuma Genera! Supplies Limited Vs Stanbic Bank Limited, Civil Application No. 48 of 2014 (unreported) in which it was stated: "All the Applicant should be concerned is showing sufficient reason why he should be given more time and the most persuasive reason that he can show is that the delay has not been caused or contributed by the dilatory conduct on his part." 4 He also cited another case of Daud s/o Haga Ks Renatha Abdon Machafu, Civil Reference No, 19 of 2006 (unreported) in which the court stated that: "Where an extension of time is sought consequent to a delay the cardinal question is whether sufficient reason is shown for the delay" On the above cited authorities, the learned counsel submitted that the applicants have not given sufficient reason to be granted extension of time to file witnesses' statements. He stressed that the reasons relied upon basing on Mr. Marando's illness, as stated in the counter-affidavit, do not amount to sufficient reason to exercise discretion to grant the orders sought. The learned counsel amplified what was deposed in the counter-affidavit that the original documents are not required in filing witness statements and that even if that was to be the case which is denied the applicants have not accounted for the period from 18th March, 2016 when Mr. Marando returned to 13th April, 2016 when the application was filed. He added that copies of documents referred to had been attached in the WSD and counterclaim and there is no indication that the documents which Mr. Marando had are in any way different from those attached in the WSD and counterclaim. The learned counsel cited LTA Construction (T) Limited and 3 Others Vs Resolute Tanzania Limited, Civil Application No. 117 of 2014 (unreported) and Athanasia T. Massinde t/a Abeti Primary School Vs National Bank of Commerce Ltd (NBC), Commercial Case No. 30 of 2014 for the stance that sickness of an applicant does not amount to sufficient reason to 5 enlarge time within which to file witnesses' statements. That it is worse in the instant case as the one who was allegedly sick is not the applicant but the custodian of the documents. The learned counsel submitted that failure to file a written statement within the given time as stipulated by Rule 49 (2) of the Rules calls for a dismissal of the suit and so prayed. Rejoining, Prof. Mgongo-Fimbo, submitted that the court's power to extend time is discretionary in which case the circumstances of each case are important. He added that the categories of reasons are not closed; thus the non-availability of the relevant documents is such a sufficient reason to grant the orders sought. On the relevancy of the original documents in filing the statements, Prof. Mgongo-Fimbo argued that the original documents are relevant and necessary before using the same in the statements; an advocate must satisfy himself as to their veracity. I have anxiously considered the learned arguments of both leaned counsel for the parties to this application. Having so done, I should now be in a position to confront the relevant issues for determination. As rightly submitted by the learned counsel for the parties, an application of this nature will only succeed upon supply to the court sufficient material upon which to exercise the discretion to grant or not to grant an extension. There is a long line of authorities on this point. One such authority is Michael Leseni Kweka Vs John EHafe [1997] TLR 152. Others are Benedict Mumeiio, Jaiuma General Supplies and Daud s/o Haga the cases cited by the learned counsel for the respondent. 6 The question which I pose to myself which question was also posed by the respondent's counsel is: have the applicants brought to the fore enough material on the strength of which this court can exercise its discretion to grant an order for enlargement of time within which to file the witnesses' statements. As can be gleaned in the affidavits in support of the application, the main reason ascribed to the delay to file the witnesses statements within seven days upon failure of mediation as provided for by rule 49 (2) of the Rules, is that Mr. Marando; the learned counsel who represented the applicants among other counsel and who was the custodian of the intended documents to be tendered had fallen sick and travelled to India for treatment. The affidavit of Issack Bugali Mwamasika has it that the said Mr. Marando, learned counsel, was admitted into Shalby Hospital of Gujarat from 14.03.2014 and discharged on 16.03.2016 and that he exited Tanzania for India on 13.03.2016 and returned on 18.03.2016. I have given due consideration to the reasons the cause of which the applicants assertedly failed to file the witnesses statement within the prescribed time. Respectfully, I do not find them as falling with the scope and purview of sufficient reasons to the test of any reasonable man. This is so because they leave some questions unanswered. I shall demonstrate. First, every day of delay has not been accounted for. Mr. Marando, the learned counsel who has been in custody of the documents, as per the affidavit of Issack Bugali Mwamasika; the second applicant, returned here in Tanzania on 18.03.2018 and he (the second applicant) went to collect the said documents on 11.04.2016. No explanation has been given why he waited until that date while it is clear that Mr. Marando returned on 7 18.03.2016. I am aware of the fact that Mr. Issack Bugali Mwamasika; deponent of the first affidavit, asked David Kahabi to inform him when Mr. Marando would be in office. But no material is brought to the fore why he would wait Mr. Marando to be in office (at will) to be handled the documents. No explanation has been given if any attempt had been made to request the documents from Mr. Marando as soon as he was back. This is exacerbated by the fact that Mr. David Kahabi does not depose in his affidavit if the 11.04.2016 was the only day Mr. Marando was in office ever since he returned from India. This court expected the applicants to be vigilant in following the documents up short of which the court is entitled to make an adverse inference that the delay was but caused by dilatory conduct. It is the law founded upon prudence in this jurisdiction that every day of delay must be accounted for. As put by the Court of Appeal speaking through Kileo, J.A in Bushiri Hassan Vs Latifa Lukio MashayotM Application No. 3 of 2007 (unreported) everyday of delay must be accounted for. The court of appeal stated: "Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken". In the case at hand, delay between 18.03.2016 when Mr. Marando returned and 11.04.2016 when the second applicant collected the documents has not been sufficiently accounted for. And with "sufficiently" here, for the avoidance of doubt, I have in mind the sufficiency in the standard pertaining to civil cases; on the balance of probabilities. 8 Secondly, the applicants have not mentioned which documents exactly were in the custody of Mr. Marando. Mr. Nyika, learned counsel for the respondent has stated in the skeleton arguments which, as already said above, were adopted at the oral hearing that all the relevant documents were attached with the previous pleadings. This argument by Mr. Nyika has not met any response. It was not stated in the submissions in chief at the oral hearing which must have been read by the learned counsel for the applicants before the oral hearing. Neither did any explanation surface in the oral rejoinder submissions. This is yet another reason why the reasons for delay seem fictitious and insufficient. If the documents under reference were the very documents that were appended with previous pleadings, Prof. Mgongo- Fimbo's argument to the effect that the learned counsel would have wanted to verify the same before appending them with the witness statements does not hold water, for such a task could have been done at that moment. In the circumstances, I do not find this argument as convincing to justify the delay. Thirdly, the affidavit of Mr. Marando is lacking to verify what the second applicant and Mr. David Kahabi are stating in their respective affidavits. No explanation is disclosed why. The applicants have left the court to speculate and wonder why such a vital step has not been taken. The court wonders; if Mr. David Kahabi's affidavit was seen relevant to support the present application why not Mr. Marando's? It seems to me that lack of the affidavit of Mr. Marando, the alleged person in whose custody the documents sought to be appended with the statements are allegedly to have been has greatly watered down the applicants' reasons for delay. Let me also canvass the point on rule 8 of the Court of Appeal Rules which the learned counsel for the applicants have beckoned me to "analogize" to 9 decide the present matter. I start with the premise that the applicants' counsel have used the word "analogize" knowing full well that the Court of Appeal Rules, as the name indicates, are largely applicable in the Court of Appeal. I am aware that there are provisions in the Court of Appeal Rules which this court concurrently enjoys with the Court of Appeal. But more importantly, I think, the Valambhia case (supra) is distinguishable from the matter at hand. The point under discussion here is extension of time to file the witnesses' statements the filing of which is governed by the Rules and extension thereof is governed by the Rules as well. However, as there is no specific provision in the Rules which cater for extension of time to file the statements, the practice of this court is to file such an application under the provisions of section 95 of the CPC which is applicable by virtue of rule 2 (2) of the Rules - see: Fauzia Jamal l/s Lilian Onael KHeo, Miscellaneous Commercial Cause No. 70 of 2014 and Alliance Ginneries Limited Vs Kahama OH Mills Limited, Miscellaneous Commercial Cause No. 14 of 2015 the decisions of this court (Nyangarika, J. and Mansoor, J. respectively) which I followed in Reliance Insurance Company (T) Ltd Vs Ruvu Gemstone Minig Co. Limited, Miscellaneous Commercial Cause No. 162 of 2015 also unreported. In view of the foregoing, I decline the invitation by the learned counsel for the applicant to "analogize" the applicability of rule 8 of the Court of Appeal Rules to the present application. In this court, it is sufficiency of reasons for delay that would count for the court to grant an enlargement of time to file the witnesses statements; not the presence of points of law in the suit in which those statement are required. io In sum, the applicants have not sufficiently explained away the delay. They have not supplied the court with enough material upon which to exercise its discretion to grant the orders sought, failure of which this application is bogged down and doomed to fail. In the final analysis, I find this application wanting in merit and consequently dismiss it with costs. Order accordingly. DATED at DAR ES SALAAM this 4th day of November, 2016. J. C. M. MWAMBEGELE JUDGE 11