registered trustees of anjumane seifee dar es salaam vs asila ally rashid 2019 tzhc 256 23 december 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 23 OF 2018 (Originating from the decision o f the I/aia District Court in Civil Case No. 67 of 2017 dated 30th day o f October, 2017) THE REGISTERED TRUSTEES OF ANJUMANE-SEIFEE, DAR ES SALAAM.......................APPELLANT VERSUS ASILA ALLY RASHID.............................................. RESPONDENT JUDGEMENT Date o f last order: 28/08/2019 Date of Judgement:23/12/2019 MLYAMBINA, 3. The Appellant above named being aggrieved by the order of the District Magistrate Court of Ilala Hon. Luhwago RM dated 30th October, 2017 preferred this appeal on the following grounds: a) That, the Honourable Resident Magistrate erred in the interpretation of Order VIII Rule 1 and 2 o f the Civil Procedure Code Cap 33 [R.E 2002] and thereby misdirected himself by denying the Appellant extension of time to file Written Statement of Defence. b)That, the Honorable Resident Magistrate erred in law and on facts when he struck out the Defendant/Apellant's Written Statement of Defence which was filed without excessive delay. i c) That, the Honorable Resident Magistrate erred in law and on facts when he found that the Appellant did not file the Written Statement of Defence within 21 days (the number of days) which he did not grant to the Appellant. WHEREFORE, the Appellant prayed for the following orders: a) That, this Honourable Court be pleased to set aside the order issued to struck out the Appellant's Written Statement of Defence. b)The Honourable Resident Magistrate be ordered to extend time to file Written Statement of Defence in favour of the Appellant. c) Costs. d)Any or further orders be granted as the Court shall deem fit and just. By consent of both parties, the appeal has been argued by way of written submissions. After a thorough contemplation however, the Appellant abandoned ground number 3 of his appeal and proceeded to argue the remaining two grounds. As regards the first ground of appeal, it was the Appellant submission that on page four (4) of the ruling, the Honorable Magistrate stated "....Order VIII Rule 1 and 2 of the Civil Procedure Code Cap 33 [R.E. 2002] gives 7 days to file Written Statement of Defence and further the law leaves a room for a Court to extend time up to 21 days. (Emphasis added) With greatest respect to the Hon. Magistrate, the Appellant argued that, the above interpretation he adopted is not correct. It was the understanding of the Appellant that the message in Order VIII, Rule 1 and 2 together with the proviso thereof was to: a) Give Defendants initial 7 days before the 1st hearing within which to file Written Statement of Defence where summons to appear has been served on him. b)Give the Defendants 21 days to file Written Statement of Defence the time start to run against the Defendant on the date of the summons. c) Provides that before the expiration of 21 days prescribed above the Defendant can pray for extension of time to file written statement of Defendant. To buttress the afore understanding, the Appellant cited the case of Tanzania Habours Authority versus Mohamed R. Mohamed (2003) TLR 76 in which the Court of Appeal of Tanzania held that: "while Section 93 of the Civil Procedure Code 1966 imposes no restriction whatsoever in the Court's discretion in extending time, the proviso to Order VIII Rule 1 (2) imposes limitation on the discretion of the Court to extend the time within which the Defendant can file a Written Statement of Defence requires that an application to extend time must be made within 21 days of expiry of the time set for the lodging of the Written Statement of Defence." (Emphasis supplied)" The Appellant went on to argue that there is nowhere under the provision of Order VIII Rule 1 (2) or in the case of Tanzania Habours Authority {supra) where the law require the Courts to extend the period of time to file Written Statement of Defence " up to 21 days only" as envisaged in the Resident Magistrate decision. To emphasize this position, the Appellant went further to re-cite their lordships, justices of appeal in case of Tanzania Habours Authority (supra) in which they continued to observe: " This Court has said in a number decisions that time would be extended...... this Court has not said that time must be extended in every situation" The understanding of the Appellant from the afore decision of the Court of Appeal of Tanzania was that there must be good reasons for Courts to allow application for extension of time. The position of which is supported by the findings of the Court of Appeal of Tanzania in the case of Vodacom Foundation v. Commissioner General TRA Civil Application 107/20 of 2017 (unreported) where at page 6 the Court had this to say: "It is now settled law in this jurisdiction that Court's power to enlarge the time....not only discretionary but also broad and will only be exercisable in favour o f an applicant only upon showing good cause for the delay. What amounts to good cause cannot be laid by any hard and fast rule but will be dependent upon the facts obtaining in each case. In the light of what is stated above, the Appellant argued that trial Magistrate erred when he reached a conclusion on page no. 4 of his ruling that "time requested by the Defendant's counsel within which to file Written Statement of Defence... was clearly granted..." Thus, one thing is clear that; had the hon. Magistrate have the proper meaning of Order VIIIRule 1 (2), he would have granted extension of time for the reasons previously stated. In response to the 1st ground of appeal, the Respondent submitted that the Resident Magistrate was correct in his interpretation of Order VIII Rule 1(1) & (2) o f the Civil Procedure Code (Cap 33R. E. 2002) which has been repealed. Before amendment, the Court had power under the cited law above to extend time. Briefly, the Appellant was served with Written Statement of Defence (WSD) on 22nd June 2017, which was scheduled for mention on 5th July 2017. The counsel for the Appellant prayed for extension of time to file WSD the prayer was granted and the Appellant was required to file WSD on 26th July 2017. By the time the case was scheduled for mention on 5th July 2017, the Appellant had hardly seven days left to file Written Statement of Defence and correctly applied for extension of time before expiration of 21 days as per Order VIII Rule 1 (2) of the Civil Procedure Code before amendment. On 5th July 2017 when the case was scheduled for mention, the Appellant was granted extension of time to file WSD until 26th July 2017. It is the Appellant who faulted to file WSD according to the Court order and according to order VIII 1 (2) of the Civil Procedure Code, the Court had no power to grant further extension of time. It was the Respondent's further submission that the case of Tanzania Habours Authority v. Mohamed R. Mohamed [2003] TLR 76 as cited by the Appellant, correctly interpreted Order VIII Rule 1 (2) of The Civil Procedure Code 1966 that the application must be made within 21 days of the expiry of the time for lodging of the WSD. According to the holding of this case, once extension of time has been made under Order VIII Rule 1 (2) of the Civil Procedure Code 1966, the Court cannot extend further time for filling Written Statement of Defence since Order VIII Rule 1 (2) of the Civil Procedure Code imposes restriction for such extension and it is specific law for granting extension in filling Written Statement of Defence. It was further submitted by the Respondent that, even the order of the lower Court is not appealable as it did not pronounce any judgment against the Appellant under Order VIII Rule 14 of Civil Procedure Code before amendment. The Appellant therefore prayed for the dismissal of the appeal with costs. I have considered the submissions of both sides with a very broad taking. I must observe at the outright that an order denying the other party to file WSD is appealable because it denies such party with the right to be heard and certain consequences may follow in terms of Order VIII rule 14(l)2(a &b) of the civil Procedure Code Cap33 R. E. 2002. Needless the afore general observation, I will reproduce Order VIII rule 1 and 2, of the Civil Procedure Code Cap 33 R. E. 2002 for easy of analysis. It states that: (1) " Where a summons to appear has been issued, the Defendant may, and if so, required by the Court shall within 7 days before the first hearing, present a Written Statement of Defence" (2) Where a summons to file a defence has been issued and the Defendant wishes to defend the suit, he shall, within twenty one days of the date of service of the summons upon him present to the Court a Written Statement of Defence; provided that the Court may, within 21 days of expiration of the prescribed period, grant an extension o f time for presentation of the Written Statement o f Defence on application by Defendant. It followstherefore true that under the provisions of Order VIII Rule 1 and 2 of the Civil Procedure Code, the Court has unfettered discretion of extending time to file SWD within 21 days after the expiration of the time limit of filling WSD. The underlying consideration is availability of sufficient cause for extension. Such reasons depend on circumstances and environment of each case. 8 This honorable Court after going through the proceeding in trial Court it has found that the reasons for the Appellant to pray for the extension of time was not considered by the trial Court. It is true the record shows that the trial Magistrate granted 21 days of extension to file WSD by 26th July, 2017. The matter was scheduled for mention on 26/7/2017. The records show the matter was adjourned by Hon. Hassan on 26/7/2017. It was adjourned to 16/08/2017 the day of which was adjourned before Hon. Mujaya. Again, the matter was adjourned to 21st August, 2017 the day of which was adjourned before Hon. Haule. On 4th day of September, 2017 the file was placed before the trial Magistrate. It was the day when the Defendant rose and sought for further extension of time to file WSD because its advocate was bereaved and he travelled to Same for burial ceremony. I do understand that the law requires under Order VIII rule 14(l)2(a & b) of the Civil Procedure Code Cap33 R. E. 2002, that where any party has been required to present Written Statement of Defence or reply and failed to present the same within the time fixed by the Court, the Court has to pronounce judgment against him or make such order in relation to the suit. Also, in the case of THA v. MOHAMED R. MOHAMED, Civil Appeal no 80/1999 CAT, it was stated that extension of time to file WSD must be made within the expiration of 21 days. However, it must be noted that rules are to facilitate substantive justice. In the case of D.T. Dobie (Tanzania) Ltd. versus Phantom Modern Transport (1985) Ltd, Civil Application No. 141 of 2001 (Unreported), the Court of Appeal of Tanzania emphasized that: "It has always been that rules ofprocedure are handmaids o fjustice and I take this to mean that they should facilitate rather than impede decisions on substantive issues". It follows therefore that the trial Magistrate was duty bound to consider on whether Mr. Said was obstructed to file WSD within the applied and granted period of time with a genuine or sufficient reason. In this case, I agree with the Appellant that the trial Magistrate never engaged his mind in considering whether there was good reason for further extension of time to file WSD so that the matter could be tried on merits interparty. On the second ground of objection, the Appellant submitted that, at page 1 of the ruling the Honorable trial Magistrate admitted that information was given, Mr. Saidi the learned advocate for the Defendant (present Appellant) could not file the Written Statement 10 of Defence because he had travelled to attend his close relative's burial in Same, Kilimanjaro. Unfortunately, the hon. Trial Magistrate did not give any attention to this sad occasion occurred to Mr. Saidi. The trial Magistrate did not pose to say if the information given was true and reasonable under the circumstances or otherwise. The Appellant went on to submit that the trial Magistrate did not take into account the submission that Mr. Said learned advocate after seeing that time had run against him did not sit down and twiddle his thumbs. He went ahead to mitigate against the running of time and he filed the Written Statement of Defence on 4/8/2017 some 8 days past the scheduled time. In view of the Appellant, this action is not uncommon in our jurisdiction. To that end, the Respondent cited the case of Mobrama Gold Corporation Ltd versus Minister for Energy, Minerals and The Attorney General and another 1998 TLR PG 425 where my brethren Mapigano 3. held that: There is no absurdity or abuse of the Court process in the mere seeking o f enlargement of time to lodge a document after the document has already been lodged out o f time and such conduct does not render the application o f time incompetent or contemptuous of the Court ii For the above reasons, the Appellant reiterated that the trial Magistrate erred in striking out the Written Statement of Defence. The Appellant invited this Court to note on records that the Trial Magistrate was absent for valid reasons. Thus, much that his cases had to be adjourned by different Magistrates. It is obvious that had the Defendant waited to have the audience of the trial Magistrate he would have been out of time for a much longer period. In the light of what is stated above the Appellant prayed for setting aside the District Court's decision dated 30/10/2017 that struck out the Written Statement of Defence. The trial Magistrate be ordered to extend time for filling or Written Statement of Defence and costs be granted in favour of the Appellant. In his reply submission against 2nd ground of appeal, the Respondent stated that the trial Magistrate was correct in law to struck out the Appellant's Written Statement of Defence. The rule and procedure of the Court requires any document filed out of time without leave of the Court to be struck out of the Court record. The Appellant was supposed to adhere to the Court order dated 5thJuly 2017 which granted his extension of time, the Court properly struck out the Appellant's Written Statement of Defence for want of procedure. 12 The Respondent, therefore, prayed that the entire appeal to be dismissed with costs for lack of merit. In the view of the above submissions, and in the light of Mobrama case {supra), I find there was nothing fatal for the trial Magistrate to have considered the reasons given by the Respondent herein for extending time to file its WSD out of time even though it was already in the Court's file. In the end result, I find this appeal have merits. The order issued to struck out the Appellant's Written Statement of Defence is hereby set aside. While I have judicial notice that Hon. Luhwago has been transferred to another working station, the Honourable Resident Magistrate in succession of the matter is ordered to consider whether the Defendant have sufficient reasons for extending time to file Written Statement of Defence out of the granted 21 days' time, and thereafter proceed with the matter on merits. Costs shall follow events. Y. JyMLYAMBINA JUQGE 23/12/2019 13 Ruling delivered and dated this 23rd day of December, 2019 in the presence of the Respondent in person and absence of the appellant. Right of Appeal explained. Y.NJ. MLYAMBINA \ jU D G E 23/12/2019 14