IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

MISCELLANEOUS COMMERCIAL APPLICATION NO. 1 OF 2018

(Arising From Commercial Case No. 190 of 2017)

MANTRAC TANZANIA LIMITED APPLICANT

VERSUS

GAME FRONTIERS OF TANZANIA LTD 1 sr RESPONDENT

TANGANYIKA WILDLIFE SAFARI LTD 2ND RESPONDENT

RULING

MRUMA, J:

This is an application for extension of time within which to file

written statement of defence. The Applicant Mantrac Tanzania Limited were sued by the Respondents Game Frontiers of Tanzania Limited and Tanganyika Wildlife Safari Limited in Commercial Case No. 190 of 2017. When the matter was called for the 1st time on 11th

January, 2018, the Applicant (i.e Defendant) entered appearance through Ms. Elizabeth Njau advocate who held brief for Mr.

Ishengoma, advocate for the Defendant. The matter was adjourned

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for mention on 24/1/2018. On that later date (i.e 24/1/2018), Mr.

Mang'ena advocate appeared for the Defendants (i.e the present

Applicants). The matter was adjourned again for orders on 1/3/2018.

While the main suit was pending, the Defendant did on 2nd

January, 2018 filed this application seeking for extension of time

within which she could file their written statement of defence.

The application is made under Rule 20(2) of the High Court

(Commercial Division) Procedure Rules 2012. The said sub-rule

provides:-

(i) A judge or Registrar, may upon an application by the

Defendant before the expiry of the period provided for

filing defence or within seven (7) days after expiry of the period showing good cause for failure to file such defence, extend time within which the defence has to be filed for

another ten (10) days and the ruling to that effect shall be

delivered promptly"

As the record would show, the Defendants were served on 15/12/2017 and this application was filed on 2/1/2018 therefore it was filed before the expiry of the period provided for filing defence which in terms of sub-rule (1) of Rule 20 of the High Court

(Commercial Division) Procedure Rules 2012 is twenty one days.

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Under paragraph 5 of the supporting affidavit it is stated that

the Applicant's two principal officers conversant with the dispute

namely Fredrick Kibodya and Dua Mbambipa Rwehumbiza were on

leave. It has been contended for the Respondent that it has not been shown how the absence of two officers of the Applicant could prevent

it from filing its defence on time.

In the first place it is the requirement of the law under Rule

48(1)(a)(c) and (g) of the High Court (Commercial Division)

Procedure Rules 2012 that a witness statement shall:-

(a) be made on oath or affirmation

( c) so far as reasonably practicable, be in the intended

witness's own words.

(g) be dated and signed or otherwise authenticated by the

intended witness.

The requirements of the law as stipulated by the laws quoted above requires personal presence of a witness. Thus, because their absence from office during the material time is not controverted, I

find and hold that absence of an intended witness is sufficient or good cause within the ambit of sub-rule (2) of Rule 20 of the High

Court (Commercial Division), Procedure Rules.

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Secondly, as correctly submitted by the counsel for the Applicant from 15th December to 31st January, the High Court is on vacation. During vacations court does not constitute itself save for

urgent matters. Commercial Case No. 190 of 2017 is not under any certificate of urgency so as to compel the court to attend it as such.

Thus, in computing the period for filing defence the period during which the court was in vacation (i.e 15th December, 2017, to 31st January, 2018) has to be excluded. Then if that period is excluded, the Defendants ought to have filed their written statement of defence twenty one days (21) from 1st February, 2018. By filing this application on 2nd January, 2018, it means that it was filed before

the expiry of the period provided for filing defence which is twenty one days (21) in terms of Rule 20 (1) of the Rules.

For those two reasons, I allow the application and order the

Applicant to file her defence within seven (7) days from the date of

this ruling.

Order accordingly.

SL/ A. R. Mruma,

Judge 10th July, 2018

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