Richard Augustine Zuberi vs Ally Mondoma (Civil Case No. 348 of 1998) [1998] TZHC 2234 (12 October 1998)

 ' :!\i1·' lo/ 
 . ,/ .•• 
 . ·, 
 ( ( 
 IN THE HIGH COURT OF TANZANIA 
AT DAR Es SALAAM 
CIVIL CASE NO. 348 OF 1998 
RICHARD AUGUSTINE ZUBER! ....... PLAINTIFF 
Versus 
ALLY MONDO MA ................... DEFENDANT 
 RULING: 
 The defendant (Applicant) represented by Mr. Mkondya, Advocate, 
having failed to file a written statement of defence by 31/3/98 applied and 
was granted extension of time in which to so act up to 14/4/98. This 
indulgence notwithstanding the defendant did not act till 28/5/98 when he 
stealthily paid fees and caused the written statement of defence to be slotted 
into the court record. Realising that the going ahead would not be easy Mr. 
Mkondya proceeded and filed a chamber summons supported by an affidavit 
praying for leave to have the written statement defence filed out of time, and 
for that matter retrospectively, on 28/5/98. The chamber summons was filed 
on 8/6/1998. 
As the Applicant's affidavit is very interesting when related to the 
court record, even at the danger of making this ruling unnecessarily long let 
me reproduce it substantially, 
"2. That on several occasions the Advocate for the Respondent 
herein above mentioned, had been asking me whether the Civil 
Registry had served me with the relevant summons to which I 
replied in the negative, 
3. That I accepted service of the summons on a date I do not 
remember as the summons was handed over to me while I was 
hurrying to another court here at the high Court, 
4. That I remember to have requested Mr. Nyanduga to hold my 
brief for the Defendant at one time,

2 
 5. That I sincerely believed that I was to file the defence if any by 
28 
th 
May 1998 as the case was to come on the 29 
th 
May 1998. 
6. That I had handed over a copy of the plaint to my client on the 
3 
rd 
April 1998 and was awaiting his comments on the same. 
7. That there is no communication between me and my client at all 
whether by telephone or otherwise except by physical visits. 
8. That it is thus prayed that the period for the presentation of the 
written statement of defence be extended to the 28 
th 
May, 1998 
or that the written statement of Defence filed be accepted." This 
Affidavit is sworn by Mr. Mkondya. 
Mr. Nyanduga for the Respondent challenged this application on 
various grounds including that it violates 0.8, Rule 14 (1) and (2) CPC as 
amended by GN. 422 of 1984 as they are mandatory provisions,and thats. 
43 (f) and 46 of the Law of limitation affects 0. 8, Rule 2 CPC once time 
has started running. He also refers to s. 3 of the same Act. The supporting 
counter affidavit also insists that when Mr. Mkondya asked Mr. Nyanduga to 
hold brief for him he also handed him a note showing that the written 
statement of defence would be filed by 14/4/98. A copy of this note was 
made an annexture to the said counter affidavit and its authenticity has not 
be challenged. 
In the reply to the counter affidavit the Applicant argues that if his 
advocate had not "volunteered to be served with plaint in March" the matter 
would have delayed further and that it is not true to say that it is illegal to 
extend twice time within which to file a written statement of defence. 
When I was about to quote the affidavit by Mr. Mkondya, Advocate, I 
observed that it is interesting. I so stated because Mr. Mkondya acts as ifhe 
was not aware of what had been taking place in court when the record tells 
the contrary. On 11/3/98 both Mr. Mkondya and Mr. Nyanduga were before 
Mr. Mshote, District Registrar, High Court when it was ordered that the 
written statement of defence be filed by 31/3/1998. On 1/4/98 only Mr. 
Nyanduga appeared but he submitted,

3 
"Mr. Mkondya prays for extension of time to file written statement of 
Defence by 14/4/1998." The prayer was granted and the matter was fixed for 
mention on 15/4/98. This is corroborated by Annexture 1 to the counter 
affidavit which was not challenged.- This annexture is Mr. Mkondya's note 
to Mr. Nyanduga, indeed indicating his prayer that the defence be filed by 
14/4/98 while mention should be on 15/4/98. In the face of all this, it is very 
unfortunate that this learned counsel could come out with an affidavit 
alleging contents as quoted above, among others, claiming that he believed 
that the written statement of defence was to be filed by 28/5/98. That apart, 
ifhe was already instructed by 11 
th 
March, 1998, how could he hand over a 
copy of plaint to his client on 3/4/1998 (as per para 6), and any case it is an 
advocate who should advise a client as to court schedules and their 
implications and cannot leave him to act at his whims as para 7 also seems to 
confirm. 
Clearly therefore the applicant offers no reason at all for his failure to 
file the written statement of defence in time. 
As regards Mr. Nyanduga's argument that the law does not in the 
circumstances, permit second extension of time, I respectively go with him. 
Order 8, Rule 2 of the Civil Procedure Code was amended by GN 422 of 
1984 by among others, deleting the proviso to sub 2 of Rule 1 (and replacing 
the same ) which permitted the court to extend time within which to file a 
defence generally. I think the idea behind was to arrest the uncontrolled 
adjournments and dilly dally by parties in filing defences on flimsy grounds 
or none at all as is the case here. The current proviso reads, 
"Provided that the court may within twenty one days of expiration 
of the prescribed period, grant an extension of time for 
presentation of the written statement of defence on application by 
the defendant." 
This means the Applicant has to apply within 21 days of his failure to 
file a written statement of defence. It means therefore, while the court has 
discretion to entertain the application, the mandatory requirement must be 
met first: that is, an application must be made within the 21 days of default. 
In the present case the first application was proper for while the written of 
defence was required to be filed by 31/3/98 and it was not, the application 
for extension of time was applied for and granted on 1/4/98 Gust a day later). 
The present application however is not - it is deplorably out of time. The

4 
 Applicant could apply for further extension of time within 21 days from 
14/4/98 - on this score I don't subscribe to Mr. Nyanduga's interpretation 
that extension cannot be done twice. It can, provided the application is made 
within 21 days of default. I am on all fours with him however that in this 
situation the court would have no power to extend the time even if applicant 
had adduced reasons for his failure. Even ifwe take 28/5/98 (when he 
stealthily slotted in the record the written statement of defence) as the date of 
the application (the present application was filed on 8/6/98) he would still be 
out of time by over 20 days. 
On the whole therefore, the application is hereby dismissed with costs 
for:- 
(a) failure to adduce any reason at all explaining why the written 
Statement of defence was not filed in time, and 
(b) admitting it would be contrary to law as the application was filed 
outside the further extension of 21 days period (Order 8 (1) Civil 
Procedure Code). 
 L. B. Kalegeya 
JUDGE 
 Delivered today the lih October, 1998, in the presence of Mr . 
 . Mkondya for Applicant and Mr. Nyanduga for Plaintiff/Respondent. 
L.B. Kalegeya 
JUDGE 
12/10/1998