NATIONAL MICROFINACE BANK PLC VS SALEHE SAIDI NAHDI MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 158 OF 2015 (Arising from Commercial Case No. 1 of 2015) NATIONAL MICROFINANCE BANK PLC ADILI AUCTION MART APPLICANTS VERSUS SALEHE SAID NAHDI....................................................RESPONDENT 27th October & 26th November, 2015 RULING MWAMBEGELE, J.: Before me is an application through which extension of time is sought so that the applicant can file a witness statement out of time. The application has been made under rule 50 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules") and section 14 of the Law of Limitation Act, Cap. 89 of the Revised Edition, 2002 (hereinafter "the Law of Limitation"). An affidavit in support of the application was sworn by one Athuman Said Kaaya. Having introduced himself as an employee of the 2nd applicant/ defendant, he went on to make statements on affirmation to the effect that 1 he was assigned to collect debts for the 1st applicant who also is employed by the Tanzania Loans Board to collect debts for her. He states further that between 9th May up to 19th June, 2015 he was assigned to collect the debts in Simiyu Region and was still on such endeavours when the matter came up for mediation until 19th June when he turned up. It is stated further that he met his lawyer; Prof. C. Binamungu on 25.06.2015 to prepare this application and further that filing a witness statement is very crucial and the delay to file a witness statement was beyond control. A counter-affidavit to oppose the application was sworn by one Esther Shedrack. Opposing the application she puts in the main that the 2nd applicant being a duly registered company should have had any other principal officer to prepare a witness statement, that the delay to file the witness statement was not justifiable because the affidavit does not show why other 2nd defendant's principal officers failed to sign the statement, and finally that since the applicant failed to show sufficient cause for the delay while knowing that filing of the witness statement is crucial, then granting the prayers would be against the interest of justice. The application was heard before me on 27.10.2015 during which Ms. Esther Shoo and Mr. Adrian Mhina learned counsel, represented the applicant and respondent respectively. Ms. Shoo through her brief submissions-in-chief stated that the main reason for this application for extension of time to file the witness statement was that the witness from the 2nd defendant was not in Morogoro but in Simiyu Region where he had gone to collect debts for the Loan Board. The learned counsel 2 then prayed that the applicant should be granted more time within which to present such witness statement. Mr. Mhina, learned counsel, on the other hand strenuously attacked the application on all fronts. He embarked stating that sufficient reasons must be given to explain the delay in terms of Alhaji Abdalah Talib Vs Eshakwe Ndoto Kiweni Mushi [1990] TLR 108, but none has been given. The learned counsel went on to contend that Mr. Kaaya is not the only person in the 2nd defendant's company and no reasons were given as to why another person, like Abdalah Hassan who had introduced the Said Kaaya to the Loans Board, did not swear the witness statement. On further attack, he contended that the applicant has not explained the delay of 6 days to meet his lawyer on 25.06.2015 from 19.06.2015 when the intended witness; Athuman Said Kaaya arrived from Simiyu. To hammer home his submission, he cited the case of Daudi Haga Ifc Jenitha Machafu, Civil Reference No. 1 of 2000 (unreported) to the effect that an applicant has to account for each and every day of delay. He finally prayed to have the application dismissed with costs. In rejoinder Ms. Shoo conceded that there are other officers in the 2nd defendant and added that what was important was the competence of the person to give evidence whereby in this case there was no other officer competent but only the said Athuman Said Kaaya. Regarding the delay of six days, her reaction was to the effect that by 19.06.2015 the defendants were already late to file the witness statement therefore meeting the lawyer on 25.06.2015 has no impact as any earlier meeting would have made no 3 difference. She reiterated the prayers in the chamber summons and added that costs be in the cause. Before going into the merits or otherwise of the application, there is one stubborn pop-up that I must mute first. This is in relation to the competence of this application before me. As I have indicated above, it has been preferred under rule 50 of the Rules and section 14 of the Law of Limitation. I ask myself, are these proper provisions of the law on which to peg this application or, asked differently, is the application competently before me? Rule 50 of the Rules is couched thus: Notwithstanding the provisions of sub rule (1) of rule 48 (1) (sic), the Court shall at the final pre­ trial conference determine the manner in which evidence is to be given at any trial or hearing by giving appropriate directions as to (a) the issues on which it requires evidence; (b) the way in which any matter is to be proved; and (c) which witness will be required for cross examination." And section 14 of the Law of Limitation is couched thus: "(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, 4 extend the period of limitation for the institution of appeal or application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application" (2) For the purpose of this section 'the court' means the court having jurisdiction to entertain the appeal or, as the case may be, the application." Apparently, the former provision of the Rules accords power to this court to control evidence and as such it can direct on how the same will be adduced. It cannot be used to support an application for extension of time to file a witness statement. I wish to state that once a party fails to file the witnesses' statements within seven days as prescribed by sub-rule (2) of rule 49 of the Rules, the Rules are silent as to the course of action to be taken if a party still wishes to have the statements filed. That is when the provisions of rule 2 (1) of the Rules come into play; to resort to the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC"). A resort to the CPC does not unveil any solution to the filing witnesses' statements out of time. The provisions of section 95 of the CPC become relevant in the circumstances. I find comfort in this stance in the decision of my sister at the Bench Mansoor, J. in Alliance Ginneries Limited Vs Kahama OH Mills Limited, Miscellaneous Commercial Cause No. 14 of 2015 (Mwanza unreported) in which she stated 5 that the provisions of sections 95 of the CPC are the correct provisions to support an application for extension of time to file witnesses' statements. Likewise, my brother Nyangarika, J. once grappled with the point in Fauzia Jama! Vs Lilian Onaei Kiieo, Miscellaneous Commercial Cause No. 70 of 2014 (unreported) and concluded as follows: "Section 95 would be relevant to base this application [for extension of time within which to file witnesses' statements] in the absence of proper provision in the law that provides for the filing of witness statement." The reasons for such a conclusion are not far to fetch. The witness statement being evidence-in-chief - see rule 49 (1) of the Rules and Barclays Bank (T) Limited Vs Tanzania Pharmaceutical Industries & 3 others, Commercial Case No. 147 of 2012 and Tanzania Azimio Construction Ltd Vs CRDB Bank, Misc. Commercial Cause No. 138 of 2014 (both unreported) - are not applications or appeals as envisaged by the provisions of section 14 of the Law of Limitation. I maintain that view because, as I held in Afriscan Group Ltd (Supra) the court will not permit a witness statement to be filed after such witness or party has gone through the statements tendered by the adverse party or particularly after he has known the testimonies-in-chief of other witnesses unless sufficient reasons are given by way of an affidavit and after the court 6 has the extent of the prejudice likely to result to that other party if such prayer is granted. Section 14 of the Law of Limitation, as already stated, cannot sustain this application. First, it being generally cited, without mention of the specific subsection between the two thereunder, cannot be said to be generally applicable to sustain the application. But even assuming the correct subsection was cited, still, in the light of Alliance Ginneries Limited Vs Kahama OH Mills (supra), it could not be maintained. This is because a witness statement is not an appeal or application and therefore extension of time to file the same cannot be granted under that provision. I am alive to the fact that the impropriety of the provisions of the law under which the application was brought and therefore its incompetency have been raised suo motu by this court in the course of preparing this ruling. Accordingly they have been determined without hearing the parties in that respect and eventually the application found incompetent. Adverse as this conclusion may seem, my approach is justified and graced by rule 63 (b) of the Rules and hence legal. For avoidance of doubt, this rule whose marginal note reads "striking out an application and affidavit without hearing" is couched thus: A Judge may, without hearing the effected party;- (a) N/A (b) Make any consequent order, including striking out the application, where he deems fit" 7 (Emphasis added). For the foregoing reasons, which were raised suo motu, I find the application to be grossly incompetent for want of specific provisions of the law to support it. As provided hereinabove, this is one of the application which this court deems fit to strike out. But assuming for the sake of arguments that the application was competent, the question then would be whether it was meritorious. To leave no cries on the eyes of justice, I dipped my hands into the case record in search for an answer to this question. My deep scrutiny of the facts as stated in the affidavit and keen hearing of the submissions by both learned counsel led me to a negative conclusion. To be precise, firstly, as stated by the counsel for the respondent, it is not stated in the affidavit that Athuman Said Kaaya was the only competent person to swear the witness statement in the 2nd defendant/applicant's company. They were mere statements made the learned counsel from the bar. Since submissions are not evidence, I find it difficult to hold the same to be credible. I disregard it. Instead, for the said Kaaya, all what is stated is that the second defendant is a debt collector for the first applicant since April, 2014, that he is assigned to collect debts for the first applicant for Wami Branch in Morogoro, that he knows the plaintiff and his son resides in Morogoro and that he was away on official duties when the matter came for mediation. Nothing in particular is said on how potential he is to the case and neither does he indicate in 8 particular that in the second defendant he is the only person able and competent to testify in the matter. This loophole waters down the submission made from the bar by Ms. Shoo, that it was only Athuman Said Kaaya who was competent to testify in the case. Even if he was shown to be the only competent person, nothing has been tendered to explain further delay of about 6 days since his return from the said official errands. To add salt to the wound, Ms Shoo submitted that since they were already late, coming to file the application earlier than that would have made no difference. I find it hard to agree with her, since, as the old adage goes; a stitch in time saves nine, a prompt application in my considered view would have negated an inference of laxity and negligence on the part of the applicant. It was therefore incumbent upon the applicant to account for each and every day of delay. I find comfort in this stance in Daudi Haga Vs Jenitha Machafu (supra) and Bushiri Hassan Vs Latifa Lukio Mashayo Civil Application No. 3 of 2007 (unreported). In the latter case, the Court of appeal, speaking through Kileo, J.A, held: "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". Thus even if I would have entertained the application on merits, I would have found, the reasons for delay presented by the applicant in the affidavit in support of the application to be frivolous. In fine, therefore the application would not have survived, anyway. It was doomed to fail anyhow. 9 In the end of it all, this application is struck out with costs. Order accordingly. DATEDat DAR ES SALAAM this 26th day of November, 2015. -------- 7 J. C. M. MWAMBEGELE JUDGE 10