T PORTLAND CEMENT VS SIGORI CIVIL CASE NO

IN THE HIGH COURT UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM CIVIL CASE NO. 16957 OF 2024 BETWEEN TANZANIA PORTLAND CEMENT PUBLIC COMPANY LTD……………….………………………………………PLAINTIFF VERSUS SIGORI INVESTMENT LTD…………………………………………….…… DEFENDANT RULING Date of last order: 12/11/2024 Date of Ruling: 21/02/2025 GONZI, J. The Plaintiff filed the present suit against the defendant for the following orders: i. That the Honourable Court be pleased to declare that the Defendant has breached the terms and conditions of the Cement Supplies on Credit Agreement dated 16th May, 2018; ii. That the Honourable Court be pleased to order the Defendant to Pay Tanzania Shillings Eight Hundred 1 Eighty- Eight Million Fifty -Five Thousand Seven Hundred Twenty Oner and cent Twenty (TZS 888,055,721.20). being principal and accrued interests from 17/07/2018 to 17/06/2024; iii. That this Honourable Court to order the Defendant to Pay 10% interest per month of the TZS 888,055,721.20 from 17/06/2024 to the date of payment in full; iv. General damages v. Interest on (v) above at the Court’s rate from the date of judgment to the date of payment in full. vi. Costs of this suit; vii. vii. Any other relief as this Honourable Court may deem fit to grant. The Defendant disputed the claims and duly filed a written statement of defence. On 01/10/2024 the pleadings were completed whereupon the parties conducted the first pretrial conference. Upon failure of mediation, the parties convened the final pretrial conference on 15/10/2024. The Court on that date directed both parties to file their Witness Statements pursuant to the Commercial Court Rules. The Defendant filed her witness statements on 2 28/10/2024 whereas the Plaintiff filed her witness statement on 29/10/2024. On 12/11/2024 when this case came for hearing, Mr. Victor Kikwasi, Learned Advocate for the Plaintiff prayed for a leave of this Court to substitute the witness statement filed on 29/10/2024 so as to cure the defect caused by the scanning machine while scanning the filed documents. In reply, Mr. Alphonce Kubaja, Learned Advocate for the Defendant objected to the said prayer on the argument that the sole witness statement for the Plaintiff sought to be substituted had been filed out of time that is on 29th October, 2024. Mr. Kubaja argued that this Court cannot grant a prayer to cure the Witness Statement improperly filed in the Court’s records. In rejoinder to Mr. Kubaja’s objection, Mr. Kikwasi informed the Court that the said Plaintiff’s witness statement filed on 29/10/2024 had been filed within time as the last day for filing the Witness Statements was 29/10/2024 and not 28/10/2024. This Court was of the view that the concern raised by the Defendant’s Advocate was in a essence a preliminary objection, hence parties were ordered to make submissions as to whether or not the Plaintiff’s witness statement had been filed within the prescribed time under the provision of the High Court (Commercial Division) Rules of Procedure, GN. No. 250 of 2012 as amended by GN No. 107 2019. 3 The hearing was ordered to proceed by way of written submissions whereby the Defendant was represented by Mr. Mashaka Edgar Mfala, Learned Advocate whilst the Plaintiff enjoyed the services of Mr. Victor Kikwasi, Learned Advocate. I thank both counsel for their submissions. Mr. Mfala, in submitting in support of the preliminary objection, submitted that in the Final Pre-trial Conference which was conducted on 15/10/2024, this Honorable Court ordered the parties to file their witness statements within 14 days as per rule 49 (2) of the Commercial Court Rules GN. No. 250 of 2012. He argued that that there has been a legal discussion on the interpretation of Rule 49 (2) of the Commercial Court Rules on when exactly the 14 days start to run. He submitted that there is a chain of decisions which interpreted the said rule. He cited the case of ABID ALLY SYKES alias ABID ALLY KLEIST SYKES T/A AFRINET LTD vs MPESA LTD [2024] TZHCComD 5 (Tanzlii) which held to the effect that in counting the 14 days of filling witness statement at the Commercial Court, the day of final pretrial conference is included. He contended that the final pretrial conference was conducted on 15/10/2024 and that the debatable issue is between 28/10/2024 and 29/10/2024, which one was the final day for filling in Court the witness statements? 4 Mr. Mfala, Learned Advocate, submitted that since the Final Pre Trial conference was conducted on 15/10/2024 and since the date of final Pretrial Conference is included in computing the 14 days within which to file the witness statements, it follows that the 14 days limit for filling the witness statements in this case ended on 28/10/2024. He argued that the Plaintiff’s sole witness statement filed in Court on 29th October 2024 was filed out of time. He argued further that the effect of filling the witness statement out of time is for the Court to strike it out from the record. Mr. Mfala, Learned Advocate, urged the Court that Since the Plaintiff has filed only one witness statement, upon it being struck-out there will be no other witness to prove the plaintiff’s case and thus the Court should dismiss the Plaintiff’s case for want of prosecutions and do so with costs. In reply, Mr. Kikwasi, Learned Advocate, submitted that the preliminary objection has been prematurely raised as it ought to be raised at the later stage of adopting the Witness Statement by the intended witness as his evidence in chief. He submitted that since that is not the case, the preliminary objection is irrelevant at this stage. 5 Mr. Kikwasi submitted further that on 12/11/2024, He prayed for the Witness Statement filed by the Plaintiff to be substituted on the reason that the same is incomplete due to technical and technological issues beyond human control. He argued that this reason for substitution of the witness statement by the Plaintiff was not challenged by the Defendant. He submitted that entertaining the Defendant’s concern now while the prayer by the Plaintiff for substituting the incomplete Witness Statement has not been objected to, would prejudice the Plaintiff’s prayer. Mr. Kikwasi went on to submit by urging the Court to apply the overriding objective principle which propagates for substantive justice by the Court without regard to undue technicalities. He argued that since the prayer for amending the witness statement was unchallenged by the other side, the Court should grant the said prayer. Mr. Kikwasi submitted further that the Defendant has relied on and based its submissions on the case of Abid Ally Sykes alias Abid Kleist Sykes vs M- Pesa Limited, Commercial Case No.15 of 2023, HC (supra), however, he argued, the circumstances of the present suit are distinguishable from the cited case as in the former there was no prayer to substitute the witness statement which was undisputed like in the present. He submitted 6 that the Plaintiff’s Witness Statement was filed timely in accordance with section 60 (1) (b), (of unnamed law) and thus the final date of filing the Witness statement was 29/10/2024 as that is the commonly used principle in the interpretation of contracts, statutes, or legal documents that involve a specific time frame. He prayed for dismissal of the preliminary objection with costs. In his rejoinder, Mr. Mfala submitted that the preliminary objection was not prematurely raised as alleged by Mr. Kikwasi. He cited the case of JACLINE HAMSON GHIKAS VS. MLLATIE RICHIE ASSEY, CIVIL APPLICATION NO 656/01 0F 2021 [5TH & 18TH JULLY 2022] [Tanzlii] at page 6 , where the Court of Appeal cited the case of Tanzania Telecommunications Company Limited v. Vedasto Ngashwa & 4 others, Civil Application No.67 of 2009 (unreported), reaffirming with greater emphasis the position taken by the Court of Appeal for East Africa in Mukisa Biscuits. He argued that the point of objection is based on disobedience of the Court order dated 15/10/2024 where the witness statement ought to have been filed within fourteen (14) days which lapsed on 28/10/2024 whereas the Plaintiff unilaterally and belatedly filed the same on 29/10/2024. 7 Mr. Mfala further submitted that the Defendant was not estopped to raise the concern at the moment it had been raised. He argued that the effect of filling a witness statement out of time is to strike it out. He referred the Court to the case of Petrofuel (T) Limited versus Power Road (T) Limited and 2 others as per Hon. Nangela, J., (as he then was) which was cited by this Court in the case of ABID ALLY SYKES alias ABID ALLY KLEIST SYKES T/A AFRINET LTD vs MPESA LTD (supra) at page 21., He submitted that the pertinent question is whether the Court order was complied with or not. He argued that the overriding objective principle is not intended to be applied as a shield when there is disobedience of Court orders. Mr. Mfala submitted further that in Plaintiff’s submissions on the last paragraph at page two, section 60 (1) (b) of an unknown law was cited and referred to by virtue of which the Plaintiff’s Learned Counsel argued that the final date of filling Witness statements in this case ought to have been 29/10/2024. He submitted that this assertion and the law upon which it is based are only known by the Plaintiff. 8 Submitting further, Mr. Mfala rejoined that even if the Defendant’s Counsel had not contested the Plaintiff’s prayer to substitute the Plaintiff’s witness statement, the Court cannot grant a prayer which is void as the witness statement sought to be substituted was time barred and hence not properly in Court. He urged the Court to dismiss the suit for want of prosecution. That marked the end of submissions by the Learned Counsel for the Plaintiff and the Defendant in respect of the issue as to whether the Plaintiff’s sole witness statement was timeously filed in Court. After hearing the rivalry submission by both parties, the pertinent issue for determination is whether the Plaintiff’s Witness Statement made by one Davis Tery, was timely filed in Court in accordance with Commercial Court Rules. Undoubtedly, the final Pre-Trial Conference was held on 15/10/2024. On that particular date the Court ordered the parties to file the witness statement “pursuant to the commercial rules”. The Defendant filed her witness statement on 28/10/2024 whilst the Plaintiff filed hers on 29/10/2024. 9 According to Rule 49 of the Commercial Court Rules GN No. 250 /2012 as amended by GN. No. 107 of 2019, it provides that: “49 (1) In any proceedings commenced by Plaint, evidence in chief shall be given by a Statement on oath or affirmation (2) The statement shall be filed within 14 days of the completion of the final Pre-Trial conference and served as directed by the Court, Provided that the obligation of a party to serve a witness statement shall be independent of the other parties’ obligation to file and serve his respective statement.” I have considered the submissions by the Defendant's Learned counsel that the day of conducting the final pretrial conference is included in computing the 14 days. On the other hand, the Plaintiff's counsel submitted to the effect that the day of the final pretrial conference itself should be excluded when computing the 14 days period of filing the witness statement under Rule 49(2) of the Commercial Court Rules. The issue as to whether the day of conducting the final pretrial conference is included in computing the 14 days within which the witness statement should be filed in Commercial Court has been canvassed in various decisions of this Court. In the case of ABID ALLY SYKES alias ABID ALLY 10 KLEIST SYKES T/A AFRINET LTD vs M-PESA LTD (Supra) this Court stated thus: “To determine whether or not the day of final pretrial conference is included in counting the 14 days within which the witness statement ought to have been filed in Court, one has to look at the language used in phrasing the relevant rule. Rule 49(2) of the Commercial Court Rules provides that "the statement shall be filed within 14 days of the completion of the final Pre-trial conference". In my view, the key words here are "of the completion of the final pretrial conference." The said words under Rule 49(2) quoted above have been interpreted by this Court in numerous cases including the case of Akiba Commercial Bank where Hon. Magoiga, J., had the following to say: "The above Rule is literally loud and clear... to my understanding and in my considered opinion, the phrase "of completion of the final pre-trial conference" used in the Rule, is not synonymous to "from". The use of the phrase "of the completion" used in the Rule, means the day which the act was done has to be the starting point to count and, as 11 such is part of the day which the subsequent act has to be done. I find no reason to depart from the above interpretation of the rule.” In Commercial Case No.04 of 2019 between Standard Chartered Bank Tanzania Limited and Gomba Estates (GEL) Limited, this Court was faced with a similar issue where the following preliminary objection was raised by one party to the case: “To the extent that the Final Pre-trial Conference was conducted on 15th February 2024 and the Court ordred 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 29th 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)” In its Ruling this Court held that: “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 on 15th 12 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 the date of Final Pretrial Conference is itself excluded? 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’ period prescribed 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 13 in that case that in computing the 14 days period, the date of Final 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 14 are required to file their Witness Statements under Rule 49(2) of the Commercial Court Rules.” Taking cue from the foregoing authorities, I, therefore, find that since the date of the Final Pretrial Conference is included in computing the 14 days period within which the Witness Statements ought to have been filed, it follows that the Plaintiff’s Witness Statement made by one Davis Tery in this case, was filed outside the statutorily prescribed time. The drafters of the Commercial Court Rules, inter alia, intended expediency in the administration of justice in the Commercial Court. Mr. Kikwasi pleaded for invocation of the overriding objective rule in condoning the delay to file the witness statement in this case. I do not accept that argument. The Rules were meant to be complied with, otherwise there wouldn't have been the need to have them. The Commercial Court Rules specifically stated 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 respected. Mr. Kikwasi argued that the preliminary objection in this case was prematurely raised as the same ought to have been raised at the time of the 15 Plaintiff’s Witness adopting his witness statement before being cross examined. I do not accept that argument either. The cardinal rule is that preliminary objections ought to be raised at the earliest possible time. In this case, Mr. Kubaja, Learned Counsel for the Defendant, noted that a witness statement improperly filed in Court beyond the prescribed time limit was about to be substituted by the Plaintiff with a view to obscuring the fact that it had been filed out of time. He therefore objected to the substitution of the witness statement filed out of time. He made it clear that he would not have objected to the substitution of the witness statement if the same had been timeously filed in Court. In my view, it was a correct moment to raise the preliminary objection. Objection on time limit goes to the jurisdiction. It would not be logical to let the Court proceed with the proceedings up to the time of the plaintiff’s witness adopting the witness statement while knowing that the said witness statement was not, legally speaking, in the Court records. Having found that the Plaintiff’s Sole Witness Statement in this case was filed outside the prescribed period of limitation, the next question is what is the effect of this anomaly? I subscribe to the holding by Hon. Nangela, J.,(as he then was) in the case of Petrofuel (T) Limited versus 16 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 2&h 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 relied 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 statement of Davis Tery, filed on 29/10/2024, for being unilaterally and illegally filed in Court outside the statutorily prescribed time limit. I do hereby strike it out from the record. With the striking out of the sole Witness Statement by the Plaintiff what happens to the present suit? It must be remembered that the High Court Commercial Division Rules of Procedure, GN.No.250 of 2012 as amended by GN.No. 107 of 2019 in terms of Rule 49(1) thereof, require that evidence in 17 chief shall be given by way of a statement on oath or affirmation. Therefore, 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. There was only one witness for the Plaintiff who purported to file the sole witness statement but out of time and which has been struck out. This means that on the date the Plaintiff was required to tender his evidence in chief, he failed to do so. The Plaintiff's case, in effect, therefore, is liable for dismissal for want of prosecution. I do hereby proceed to dismiss the suit for want of prosecution, with costs. A. H. GONZI JUDGE 21st February, 2025 Ruling is delivered in Court this 21st day of February, 2025 in the presence of Mr. Victor Kikwasi, Advocate for the Plaintiff and Mr. Alphonce Kubaja and Ms. Sarah Matembo, Advocates for the Defendant. A. H. GONZI JUDGE 21st February, 2025 18