IN THE HIGH COURT OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM

COMMERCIAL CASE NO. 49 OF 2016

MENG QI INTERNATIONAL LIMITED PLAINTIFF

VERSUS

CORPORATE SECURITY SERVICES LTD DEFENDANT

RULING:

MRUMA, J:

On zs" October, 2017, this court (Sehel, J) made an order to the effect

that parties should file their respective witness statement within seven (7)

days from the date of that order. Pursuant to that order witness statements of

the Plaintiff were filed on u" November, 2017.

On 16th November, 2017 counsel for the Defendant filed a notice of

preliminary objection contending that:-

1. The Plaintiffs witness statement before this Honourable Court was

filed out of time contrary to the court order and rules of this

Honourable Court.

At the hearing of the preliminary objection Mr. Jonathan Mbuga, counsel

for the Defendant submitted that the order to file witness statement was made

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on zs" October, 2017 and that counting from that date the seven days (7)

period expired on 31st October, 2017 while the witness statement was filed on

1st November, 2017, thus it was filed out of time and without leave.

Replying to Mr. Mbuga's submissions Mr. Jovinson Kagilwa, advocate for

the Plaintiff contended that the Plaintiff's witness statements were filed in

time. He said that the statements filed within seven (7) days as required by

Rule 49 (2) of the High Court (Commercial Division) Procedure Rules 2012.

Let me start by reciting the old legal adage which says that procedural

rules are handmaiden ( or supporters) of justice. They are not meant to come

to an impasse with justice, and Article 107A (2) (e) of the Constitution was

promulgated just to ensure that substantive justice prevails.

Filing of witness statements is governed by Rule 49(2) of the High Court

(Commercial Division) Procedure Rules, 2012 which provides as follows:-

"(2) The statement shall be filed within seven (7) days of the

completion of mediation and served as directed by the court"

As admitted by both counsel in their submissions to this court, mediation

was completed on 25th October, 2017 and an order to file witness statements

was accordingly made.

Counsel for the Defendant has relied on the cases of Tanzania Red

Cross Society Vs. Dar es Salaam City Council & 3 others (Commercial

Case No. 53 of 2005) Puma Energy Tanzania ltd Vs. Spec Check Enterprises

Ltd (Commercial Case No 19 of 2014) and EATV & Radio Ltd Vs Zainal Mzige

Lab (Revision No 270 of 2010) in all of which it were held to the effect that

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failure to comply with court orders to file witness statement or written

submissions is tantamount to failure to prosecute one's case.

I have carefully considered the submissions of counsel as disclosed in

their skeleton written arguments and expounded in their oral submissions that

have been reproduced above. I think the issue here unlike in the authorities

cited is not failure to file witness statements or final submissions but whether

the Plaintiff's witness statements were filed out of time. That is so because the

fact that the plaintiff has in place his witness statement is not disputed.

As stated herein before mediation was completed on zs" October, 2017 and the statements were filed on 1st November, 2017. Section 19 (1) of the

Law of Limitation Act (Cap 89 R.E 2002) provided as follows:-

"Jn computing the period of limitation for any proceedings/ the day

from which such period is to be computed shall be exduded"

Counsel for the Defendant has submitted that the order to file witness

statement was very specific that it should be complied with within seven (7)

days from the date it was made.

I have revisited the order and I find that the order was made pursuant to

the provisions of Rule 49 (2) of the High Court (Commercial Division)

Procedure Rules. In making that order, the court wasn't invoking its discretion

powers and therefore it falls squarely within the ambit of Section 19 (1) of the

Law of Limitation Act.

The period for filing witness statement was not fixed or granted by the

court as the Defendant's counsel would love this court to believe. It is

prescribed by the law (i.e Rule 49 (2). A party who does not comply with time

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limit set by court may apply for extension of time under Section 93 of the Civil

Procedure Code. This cannot be the position here.

On the other hand Rule 50 of the High Court (Commercial Division)

Procedure Rules gives this court at the final pre trial conference powers to

determine and direct the manner in which evidence is to be given at any trial

or hearing by giving appropriate directions to:-

a) The issue on which it requires evidence

b) The way in which any matter is to be proved

c) Which witness will be required for cross examination.

Thus, because this suit has not reached the final pre trial conference

probably objection to the witness statement of this nature would have been

waited up to that stage.

But all in all as I have already alluded above the Plaintiff's witness

statement was filed pursuant to the provisions of Rule 49 (2) of the High Court

(Commercial Division) Procedure Rules 2012, and therefore they well within

the prescribed time. Accordingly the preliminary objection raised by the

Defendants counsel is dismissed with costs.

~~/

A. R. Mruma,

Judge

09th May, 2018

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