SM Holdings Ltd vs NBC Ltd & Another (Commercial Case No. 134 of 2022) [2024] TZHCComD 54 (19 April 2024)

Key Facts

Issues

• Whether the plaintiff filed the suit without the requisite board resolution under sections 147(1)(a) & (b) and 39(1) & (2) of the Companies Act, and whether the attached resolution lacked the company's seal and competent officers' signatures.
• Whether the defendant's witness statement was filed out of time under rule 49(2) of the High Court (Commercial Division) Procedure Rules, and the correct interpretation of '14 days of the completion of the final pre-trial conference' as per section 60(1)(a) and (b) of the Interpretation of Laws Act.

Holdings

• The court overruled the defendant's preliminary objection that the plaintiff lacked a competent board resolution to sue, reasoning that such requirements apply to internal corporate disputes and not external claims like this one. The court emphasized that requiring excessive disclosure of internal company matters would infringe on corporate privacy and confidentiality.
• The court sustained the plaintiff's preliminary objection that the defendant's witness statement was filed out of time. The statement was submitted on September 19, 2023, one day after the 14-day deadline from the final pre-trial conference (FPTC) on September 5, 2023, as per rule 49(2) of the Commercial Court Rules and section 60(1)(a) of the Interpretation of Laws Act.

Remedies

• The court struck out the defendant's witness statement of Jackson Kindikwili for having been filed out of time, as the plaintiff's preliminary objection was sustained.
• The court ordered the plaintiff to prove their case ex-parte in relation to the defendant, given the defendant's witness statement was struck out and no further defence witnesses remain.

Legal Principles

• The court adopted a Purposive Approach by considering the objectives of time limits in procedural law, including promoting expeditious litigation, ensuring certainty, and managing judicial resources. This reinforced the decision to strictly enforce the 14-day deadline without exception.
• The court applied the Literal Rule in interpreting rule 49(2) of the Commercial Court Rules, which requires witness statements to be filed within 14 days 'of the completion of the final pre-trial conference.' The judge emphasized strict adherence to the wording 'of' rather than allowing a liberal interpretation based on the Court's oral direction of 'from today.'

Precedent Name

• Petrofuel (T) Ltd v Power Road (T) Ltd & Others
• Bugerere Coffee Growers v Sebaduka
• Akiba Commercial Bank Plc v UAP Tanzania Co. Ltd
• NBC Ltd v Partners Construction
• Makoa Farm Ltd & 2 Others v Uduru Makoa Agr. & Marketing Cooperative Society Ltd
• James Sendama v Republic
• DP Shapriya Ltd v Yara (T) Ltd
• Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
• Airtel (T) Ltd v Osc Power Solutions Ltd
• Kenafric Industries Ltd v Lakairo Investment Co. Ltd
• Abid Ally Sykes @ Abid Ally Sykes t/a Afrinet Ltd v M-Pesa Ltd
• Stanbic Bank (T) Ltd v Sumry Bus Services & Co Ltd & Others
• Simba Papers Converters Ltd v Packaging and Stationery Manufacturers & Another

Cited Statute

• Law of Limitation Act, Cap 89 R.E, 2019 (LLA)
• High Court (Commercial Division) Procedure Rules, 2012 (as amended by GN 107 of 2019)
• Companies Act, Cap 212 R.E. 2002
• Interpretation of Laws Act, Cap 1 R.E. 2022 (ILA)

Judge Name

Passage Text

• Plainly put, counting from September 5th, 2023 the 14th day falls on September 18th, 2023. Incidentally, the witness statement under attack by the plaintiff was filed a day later.
• I find and hereby hold that the defendant's PO is without requisite excellence. I overrule it.
• In the upshot, the plaintiff's PO is sustained. Accordingly, the purported witness statement of Jackson Kindikwili is struck out and expunged from the record of the Court.