STANDARD CHATERED BANK T LTD VS GOMBA ESTATE GEL LTD COMM CASE NO

IN THE HIGHCOURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 04 OF 2019 STANDARD CHARTERED BANK TANZANIA LIMITED.................... PLAINTIFF VERSUS GOMBA ESTATES (GEL) LIMITED................................................... DEFENDANT RULING Date of Last Order: 18/07/2024 Date of Ruling: 02/08/2024 GONZI, J. On 15th February 2024, Final Pretrial Conference was conducted whereby issues were framed by the Court after engaging counsel for both sides and at the end of it the Court ordered Parties to file their respective Witness Statements in accordance with the High Court Commercial Division Rules of Procedure, GN No.250 of 2012 as amended in 2019. On 24th March 2024, the Plaintiff raised a Preliminary Objection on a point of law that: " To the extent that the Final Pre-trial Conference was conducted on 15fh February2024and the Court i ordered the parties to file their Witness Statements in accordance with the Rules, the Witness Statements of Michael Francis Sheehan and Justin C Chinyata filed on 29*h February 2024 are hopelessly time barred in terms of Rule 49(2) of the High Court (Commercial Division) Rules of procedure, GN 250 of2012 as amended (Commercial Court Rules)." On 27th May 2024, the Court directed the parties to argue the Preliminary Objection by way of Written Submissions. Mr. Gasper Nyika, learned Advocate, represented the Plaintiff while Mr. Gabriel Simon Mnyele, learned Advocate, represented the Defendant. Mr. Gasper Nyika, learned Advocate, submitted that under Rule 49(2) of the Commercial Court Rules, witness Statements are required to be filed in Court within 14 days of the completion of the Final Pre-trial Conference. He submitted that as the Final Pretrial Conference was held on 15th February 2024, the 14 days expired on 28th February 2024. Therefore, the Witness Statements for the Defendant filed on 29th February 2024, were filed outside the prescribed time. Mr. Nyika, learned Advocate, relied on a number of decisions of this Court including Petrofuel (T) Limited versus Power Road (T) Limited and 2 Others; Abid Ally Sykes alias Abid Ally Kleist 2 Sykes T/A Afrinet Solutions versus M-Pesa Limited, copies thereof were attached to the submissions, where the Court insisted that computation of the 14 days include the day of conducting the Final Pretrial Conference. Mr. Nyika, learned Counsel, also cited the decision of the Court of Appeal of Tanzania in Kenafric Industries Limited versus Lakairo Investment Company Limited, Civil Appeal No.149/2021 where the Court of Appeal of Tanzania confirmed the same position. Mr. Nyika submitted that the Defendant herein had also filed a Counter Claim against the Plaintiff and that the two Witness Statements filed outside the prescribed time, were filed in respect of both the defence in the main suit and prosecution of the Counter Claim. He argued that the two witness Statements of Michael Francis Sheehan and Justin Chenyata should, therefore, be struck out for being time barred in terms of Rule 49(2) of the Commercial Court Rules. Mr. Nyika concluded by praying that as Witness Statements constitute the evidence in chief, therefore, the Defendant should be treated as having failed to prosecute his Counter Claim which should, as a result, be dismissed with costs. Further, Mr. Nyika argued that the Plaintiff be allowed to make exparte proof of his claims contained in the Plaint. 3 In reply, Mr. Gabriel Simon Mnyele, learned Advocate for the Defendant, filed written submissions and humbly argued that upon their research on the decisions of the High Court and the Court of Appeal relied upon by the Plaintiff on this aspect, there is confusion in the judicial interpretation of Rule 49(2) of the Commercial Court Rules. Mr. Mnyele, learned counsel, submitted that the controlling words in Rule 49(2) of the Commercial Court Rules are "within fourteen days of the completion of the final pretrial conference". He submitted that the Black's Law Dictionary at page 1777 defines the word "within" as "any time before, at or before, at end of before expiration, not beyond, not exceeding, not later than". He argued that the 14 days of filing the Witness Statements were intended to be 14 complete days on the understanding that the definition of a day is 24 hours period from midnight to midnight. He argued that a fraction of a day should be completely ignored in computing the time limit. For that rule, He relied on the decision of the High Court of Tanzania in East African Posts and Telecommunication Corporation versus M/S Terrazo Pavior (1973) LRT No. 18 which in turn relied on Pugh versus Duke of Leeds (1777) 2 Cowp 714 and Trow versus Indra Coope (West Midland Ltd (1967) 2QB 899. He argued that resort to Common law principles is 4 justified by section 2(3) of the Judicature and Application of Laws Act. Mr. Mnyele, learned Advocate, argued that as the final pre-trial conference was complete at a certain time during working hours of 15th February 2024, the remaining hours of that day could not constitute "a day" in computing the 14 days period. Hence, he argued that the first day should be discounted or excluded. Mr. Mnyele, learned Advocate, next argued on the meaning of the word "of" as it appears under Rule 49(2) of the Commercial Court Rules. He argued that the conjunction "of" is used in a statute to indicate a requirement of doing a particular act within a particular time. After completion of a particular act, the prescribed time will start to run after the act is done, and if the specific time is not indicated, then will it be deemed to have been done within a particular day and, therefore, that day cannot be counted. Mr. Mnyele, learned Advocate, argued that the decisions relied upon by the Plaintiff's Counsel were not based on correct interpretation of the law because they counted the days on the basis of section 60(l)(a) of the Interpretation of Laws Act, CAP 1 which applies only where time is expressed to be "at", "on", or" with" a specified day" which words are not present in Rule 49(2) of Commercial Court Rules. He argued that the cases relied upon 5 by the Plaintiff's counsel were decided in reliance to the decision of the Court of Appeal of Tanzania in NBC versus Partners Construction Ltd, Civil Appeal No.34 of 2003 in which the Court of Appeal misread the Order VIII Rule 1(2) of the Civil Procedure Code. He argued that the correct- interpretation was in the cases of Ken International Limited versus Azania Bank Limited, Commercial Case No. 152/2015 and Primi Aloyce Muushi versus Kasinde Said Mzee, Civil Case No.231/2022 which followed the correct decision of the Court of Appeal in Kalyango Construction and Building Contractors Limited, Civil Appeal No.85/2009. Mr. Mnyele, learned Advocate, submitted that the cases of NBC and Kalyango Construction nevertheless cannot be used to interpret Rule 49(2) of the Commercial Court Rules due to the difference in wording of the provisions they were interpreting when compared to Rule 49(2) of the Commercial Court Rules. He argued that the cases of Petrofuel (T) Limited versus Power Road (T) Limited and 2 Others, Commercial Case No.29/2012; SM Holding Limited versus NBC and another, Commercial Case No. 134/2022; Abid Ally Sykes versus M-Pesa Limited, Commercial Case No. 15/2023, all relied on the previously decided cases which had 6 shortcomings in their interpretation. Mr. Mnyele, learned Advocate, argued that Rule 49(2) of Commercial Court Rules should be read together with section 60 of CAP 1 and Common law as adopted in our country. He argued that in interpreting written laws with regard to computation of time, the provision of section 60(1) are to be taken into account mandatorily; that the word "day" should be interpreted as a period of 24 hours from midnight to midnight and not as a fraction of a day; the word "of" should be interpreted as "after" in terms of section 60(l)(b) of the Interpretation of Laws Act, CAP 1; and that the word "within" should connote time between two points, which in terms of Rule 49(2) of Commercial Court Rules, should be taken to mean a span of 14 full days. Mr. Mnyele, learned counsel, concluded by submitting that the Court should avoid unnecessary technicalities and uphold overriding objective as enshrined under section 3A of the Civil Procedure Code as amplified by the case of Kabori Chogoro versus Mwerogo, Civil Appeal No. 164/ 2018. He also urged the Court to have in mind the provisions of Article 107A of the Constitution of the United Republic of Tanzania by upholding substantive justice. Lastly Mr. Mnyele, learned Counsel, urged the Court to interpret and treat the Rules of procedure as mere handmaids of justice rather than the 7 mistresses themselves. Mr. Mnyele, learned Advocate, concluded by praying that the preliminary objection raised by the Plaintiff be overruled and that both parties be accorded the right to be heard. By way of rejoinder, Mr. Gasper Nyika, learned counsel, submitted that it is elementary rule that the High Court and Courts subordinate thereto are bound by the decisions of the Court of Appeal regardless of their correctness. Also he argued that it is the rule that a Judge of the High Court should follow his own previous decisions and decisions of his fellow Judges of the High Court unless there is good reason to depart therefrom. For these rules Mr. Gasper Nyika, learned counsel, cited the cases of JUWATA versus KIUTA (1988)TLR 146 and Ally Linus and Others versus Tanzania Harbours Authority and another (1998) TLR 5. In that regard, Mr. Gasper Nyika, learned counsel, submitted that the interpretation of Rule 49(2) of the Commercial Court Rules, is settled in the High Court up to the Court of Appeal. He reiterated his prayers in the submissions in chief. The present matter hinges on a very thin thread. It is not disputed that Rule 49(2) of the Commercial Court Rules requires Witness Statements to be filed in Court within 14 days of the date of completion of the Final Pretrial Conference. Also it is not disputed that the Final Pretrial Conference was held 8 on 15th February 2024 and that the Defendant's two Witness Statements were filed in court on 29th February 2024. The only issue is whether the 14 days for filing the Witness Statement are computed inclusive of the date when the Final Pretrial Conference is held or that the date of Final Pretrial Conference is itself excluded? Mr. Gasper Nyika, learned counsel for the Plaintiff, is of the position that, in conformity with the settled position of the law, the date of Final Pretrial Conference is also inclusive in computation of the 14 days period. On the other hand, Mr. Gabriel Mnyele, learned Advocate, is of the position that, to avoid counting a fraction of a day, the date of conducting the Final Pretrial Conference is excluded when computing the 14 days period for filing the Witness Statements in Court. Mr. Gasper Nyika, learned Advocate, has relied on a number of decisions of this Court and the decision of the Court of Appeal in the case of Kenafric Industries Limited versus Lakairo Investments Company Limited, Civil Appeal No. 149 of 2021. Mr. Mnyele, learned Advocate, has argued that the decision by the Court of Appeal, above mentioned, and a string of other decisions of the High Court on this issue were determined in per incuriam. He argued that when the provision of Rule 49(2) of the Commercial Court Rules is set in its proper perspective, in line with section 60(1), (b) of the Interpretation of 9 Laws Act, CAP 1 as well as the common law rules pertaining to computation of time for the purposes of limitation, the date of conducting the Final Pretrial Conference should be excluded in computing the 14 days period for filing the Witness Statements in Court. I have gone through the decision by the Court of Appeal of Tanzania in Kenafric Industries versus Lakairo Investments (supra) which was delivered on 6th March 2024. The major issue for determination is captured at page 6 where the Court observed: " The question we are called to upon to determine in this appeal is essentially one. That is whether or not, the trial Judge was correct to hold as she did that, the appellant's witness statements were filed out of time because the day when the order to file them was made, ought to be included in reckoning the fourteen days'periodprescribed by Rule 49(2) of the Commercial Court Rules. This in essence is the crux of the appellant's complaint against the decision of the trial court." Having spelt out the issue for determination, the Court of Appeal at pages 7 and 8 of the decision, endorsed the position taken by the High Court Judge in that case that in computing the 14 days period, the date of Final io Pretrial Conference is also included unless the Trial Judge thereby makes a contrary order providing for a different period. The Court of Appeal further held that the position of the law in this aspect is settled as it was stated in the National Bank of Commerce Limited versus Partners Construction Company Limited, Civil Appeal No.34 of 2003. Given the binding decision of the Court of Appeal of Tanzania in the above cited case of Kenafric Industries Limited (supra) which is straight on focus to the point at issue in the present case, much as I am impressed by the reasoning made by Mr. Gabriel Mnyele, learned Advocate for the Defendant, the position of the law in this issue is settled. There is no room for re-inventing the wheel. As it was correctly and candidly submitted by Mr. Gasper Nyika, learned Advocate for the Plaintiff, under the doctrine of precedent and stare decisis, this Court is bound to follow the decision of the Court of Appeal of Tanzania regardless of its correctness. Therefore, the position of the law, which is settled up to the Court of Appeal of Tanzania, is that the day of Final Pretrial Conference is inclusive when computing the 14 days' period within which parties are required to file their Witness Statements under Rule 49(2) of the Commercial Court Rules. ii In the present case, the Witness statements of the Defendant's Witnesses were therefore filed out of time by one day without obtaining a prior extension of time to do so. That was in contravention to Rule 49(2) of the Commercial Court Rules. All said and done, I, therefore, find and hold that the witness statements of the two witnesses for the Defendant, namely Michael Francis Sheehan and Justin C. Chinyata which were filed on 29th February 2024, were filed outside the statutorily prescribed time limit under Rule 49(2) of the Commercial Court Rules. The drafters of the Commercial Court Rules, inter alia, intended expediency in the administration of justice in the Commercial Court. The Rules were meant to be complied with. The Commercial Court Rules specifically state that they were intended to be applied with leniency only during the first year of their promulgation. This underscores the intention to have the rules strictly complied with. The time limits set by the Rules, in particular, should be strictly abided with. If there is a good cause for a party failing to do some act within the prescribed time, a prior extension of time should be sought. 12 I subscribe to the holding by Hon. Nangela, 1, in the case of Petrofuel (T) Limited versus Power Road (T) Limited and 2 others delivered on 15th May 2022 where this Court held that: "it is from the totality of the above discussion I find that, the witness statement filed by Mr.Ishengoma was filed out of time and, hence in contravention of not only the Court Order dated 2ffh March 2022 but also the provisions of Rule 49(2) of the High Court (Commercial Division) Rules of Procedure, GN,No.250 of 2012 as amended by GN.No.107 of 2019. Consequently, there being a contravention of that mandatory Rule, nothing can be retied on to rescue the situation but that, the witness statement stands to be struck out and I hereby strike it out from the record." In the present case therefore, I am left with no option other than to strike out the witness statements of Michael Francis Sheehan and Justin C. Chinyata filed on 29th February 2024, for being unilaterally and illegally filed in court outside the prescribed time. I hereby strike them out from the Court record. Having struck out the only two witness statements for the Defendant in this case, the next question is what happens to the case at hand? This is 13 automatic and predictable. In the Counter Claim, the Defendant is placed in the same position as the Plaintiff in a suit. Therefore, the Defendant is legally deemed to be, and treated as, the Plaintiff in respect of the Counter claim. Failure by the Plaintiff to file a witness statement tantamount to failure to prosecute his case when it came for hearing of his evidence in chief. The Plaintiff's case would, in effect, liable to dismissal for want of prosecution. In this regard therefore, treating the Defendant as the Plaintiff in respect of the counterclaim, the Defendant's Counter Claim is hereby dismissed with costs for want of prosecution. As for the main case, since the Witness Statements constitute evidence in chief, by failing to timely file Witness Statements in court, the Defendant is taken to have defaulted to enter appearance on the date set for hearing. The Plaintiff is therefore granted his prayer of making an exparte proof of the Plaintiff's case. It is so ordered. A .H. GONZI JUDGE 02/08/2024 14 Ruling is delivered in Court this 2nd day of August, 2024 before Hon. Deputy Registrar J. M. Minde, in the presence of Ms. Faiza Sallah Advocate for the Plaintiff and Salma Habib Sungwa Advocate for the Defendant. JTMH4INDE '?// DEPUTY REGISTRAR 02/08/2024 15