STANBIC BANK T LTD VS DANIEL MAGINGA COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 103 OF 2015 STANBIC BANK TANZANIA LIMITED ........ PLAINTIFF VERSUS DANIEL MAGINGA ........... DEFENDANT RULING 07/12/2018 & 13/12/2018 SEHEL, J, When the suit was called for hearing, counsel Kesaria who appeared to represent the plaintiff informed the Court that he had no witness and advanced the following reasons: the plaintiff’s sole witness statement was filed on 28th day of February, 2017, that is almost 22 months ago; the hearing of the case was delayed by the defendant because often opposed for extension of the lifespan which lost almost two years for arguing the application; and during these i twenty two months, the witness is no longer an employee of the bank. He said after the matter was set for hearing, the counsel personally reached the witness to come to court for purposes of cross examination but he refused. As a result the counsel said he had to come to court and ask for witness summons to be issued but the witness has decided to avoid service. He therefore submitted that it has become obvious that the witness is not going to come to court either voluntarily or by court summons. He said, he is alive of Rule 56 (2) of the High Court (Commercial Division) Procedure Rules GN 250 of 2012 (“the Rules”) of which he is inclined to think that the exception will not apply. He thus prayed for the extension of time within which to file additional witness statement. The prayer was heavily objected by the learned counsel Masumbuko representing the defendant by arguing that the present suit is not a peculiar case why it should not comply with the Rules. He said the prayer with regard to witness statement was made on 30th October, 2018 and it was refused thus the Court is functus officio. He said the suit is set for hearing so the plaintiff is supposed to bring the witness and what we have is the admission that the witness cannot be., brought to court. He further contended that the failure to serve summons was not caused by the defendant so defendant cannot be blamed. The counsel further submitted that commercial court being special court with special rules, then hearing commenced when the witness stamen is filed as held in D.B Shapriya Co. Ltd Vs Gulf Concrete Ltd, Commercial Case No. 23 of 2015. The counsel then prayed either to be allowed to give evidence so as the defendant can make a submission of no case to answer or the suit be dismissed forthwith with costs. Counsel Kesaria re-joined by insisting that the application before the court is for extension of time to file additional witness statement. He said the order made by this court on 30th October, 2018 was for leave to substitute witness with another witness statement. Therefore, for him, the court is not functus officio. He acknowledged that this court has special rules but he contended that a court of justice should not shut its eyes to substantial justice of determining the issues between the parties fully and finally.^ 3 From the submissions of the counsels, the Court is invited to determine whether the plaintiff should be granted extension of time to file additional witness statement. It is trite law that a suit commenced by a plaint in commercial court its evidence in-chief is adduced by way of a witness statement (See rule 49 (1) of the Rules). This position of the law has been repeatedly stated by this Court in its numerous decisions. For instance, Hon. Nchimbi, J (as he then was) in Barclays Bank (T) Limited Vs Tanzania Pharmaceutical Industries & 3 others. Commercial Case No. 147 of 2012 (Unreported) said: "...The only way to adduce evidence in chief in this court is by witness statement to be filed by respective parties ... [and] that requirement is mandatory..." Luckily in the matter at hand, the plaintiff did file one witness statement of John Lukiko. After, filing the witness statement, as correctly submitted by counsel Masumbuko, the witness is required to appear for cross examination. The Rules under rule 56 (1) requires a party who intends to rely on a witness statement to cause his witness to attend for the cross examination. For the matter at hand, the case^ 4 was at the stage of hearing the plaintiff's case thus the burden lies to the plaintiff to bring John Lukiko for cross examination. We are told that the witness is not going to come to court either by his own willing or by court summon. It thus prayed for extension of time to file additional witness statement. It is on records and not disputed that the witness did not turn up today for cross examination. It is also on records that on 16th day of November, 2018 this court made an order for witness summons to be issued. The said witness summons was issued but it has never been returned. We are not told why it was not returned but we are told from the bar that the witness evade service. We have no other proof apart from the submission made from the bar. It is trite law that submission from the bar is not evidence. In the case of Registered Trustees of the Archdiocese of Dar es Salaam Vs the Chairman Bunju Village Government and 11 Others, Civil Appeal No. 147 of 2006 (Unreported) Court of Appeal of Tanzanian said: “............. submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are^ 5 elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence." As I said the submission came from the bar that the witness John Lukiko after being traced by the counsel, he declined service of summons. In terms of Order XVI Rule 8 and Order V Rule 16 of the Civil Procedure Act, Cap. 33 the servicing officer (in the matter at hand it is the counsel for the plaintiff) was required to return the original of the summons to the court together with an affidavit stating that the person upon whom he served the summons (that is John Lukiko) refused to sign the acknowledgment, that he left a copy of the summons with such person and the name and address of the person (if any) by whom the person on whom the summons was served was identified. Neither the original summons nor the affidavit was brought to court to prove service of witness summons. With these facts, I am forced to conclude that non-attendance of the witness, Mr. John Lukiko was due to the plaintiff's failure to secure the attendance of her witness in time as required by rule 56 (1) of the Rules. Sub rule 2 to rule 56 of the Rules provides:^? 6 “ (2) Where the witness fails to appear for cross examination, the Court shall strike out his statement from the record, unless the Court is satisfied that there are exceptional reasons for the witness’s failure to appear.” On the facts of the case, I find that there are no exceptional reasons for the witness’s failure to appear for cross examination. Having found that there are no exceptional reasons let me now deal with the prayer for extension of time to file additional witness statement. I have adverted herein that the proceedings at commercial court commenced by plaint. Therefore, its evidence in chief shall be by way of a statement. Rule 49 (2) of the Rules provides in clear terms that the said statement shall be filed within seven days of the completion of mediation. Both the plaintiff and the defendant duly complied with rule 49 (2) of the Rules by filing their witness statement. However, the sole witness for the plaintiff failed to appear for cross examination. The plaintiff, being mindful that the only witness who filed the witness statement does wish to appear for cross examination, made the prayer for extension of time to file additional^ 7 witness statement. It is trite law that extension of time is entirely within the discretion of the court and it can only be granted upon advancing sufficient material. In Mumello Vs Bank of Tanzania [2006] E.A 227 it was held: "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 may only be granted where it has been sufficiently established that the delay was with sufficient cause.” The fact that the sole witness for the plaintiff failed to appear for cross examination is not sufficient reason because in terms of rule 56 (1) of the Rules, the plaintiff has the duty to cause her witness to appear for cross examination. I have found herein that there is no proof that the sole witness evaded service of summons and no exceptional circumstance to warrant the sole witness statement filed before this Court to be received with lesser weight. Equally, the same cannot be taken as a reason let alone sufficient reason for the court to exercise its discretionary power for extension of time^ 8 In any event granting the prayer made by the plaintiff will prejudice the other party's case who have placed their cards on the table. Guided by the principle of due regard to the need to achieve substantial justice as enshrined in rule 4 of the Rules and further amplified by a Written Laws (Miscellaneous Amendments) (NO. 3) Act, 2018 Act No. 8 of 2018 I find it compelling to decline the prayer for extension of time to bring additional witness as the defendant will be prejudiced. In the end, I see no merit to the plaintiff's prayer and in terms of Rule 56 (2) of the Rules I proceed to strike out the witness statement of John Lukiko. Having striking out the sole witness statement then I proceed to decide the suit by dismissing it with costs under Order XVII Rule 3 of the Civil Procedure Act, Cap. 33 for lack of merit as no evidence has been produced. It is so ordered. DATED at Dar es Salaam this 13th day of December, 2018. 9