23656 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION NO. 23656 OF 2024 (Originating from Land Case No. 379 of2023 the High Court of Tanzania (Land Division) before Hon A.Msafiri, J) BETWEEN AKIBA COMMERCIAL BANK PLC............................................. APPLICANT VERSUS FRANK JACKSON KASONGA......................................... 1st RESPONDENT MAJEMBE AUCTION MART LIMITED............................ 2nd RESPONDENT RULING Last order: 22/10/2024 Date of Ruling: 30/10/2024 A. MSAFIRI, J. This is a ruling following an application filed by the applicant herein above. The application was brought under Order XIII Rule 2 of the Civil Procedure Code, Cap 33 RE 2019 (herein the CPC). It is supported by an affidavit deponed by Ezekiel Fyandomo, the Principal Officer of the applicant. The 1st respondent counter affidavit in contest of the application was deponed by Bakari Juma, the advocate for the 1st respondent. The 2nd respondent was exparte. The applicant is moving the court to grant leave to the applicant to produce documents which are namely; Certificate of Title No. 85480, Transfer under power of sale dated 02/4/2020, Certificate of Sale dated i 16/3/2020 and Transfer dated 02/4/2020 listed on the first defendant's list of additional list of documents filed on 03/9/2024 in Land Case No. 379 of 2024. The hearing was by way of written submissions whereas the applicant's submission in chief and rejoinder was drawn and filed by David B. Wasonga, learned advocate, while the 1st respondent reply submission was drawn and filed by Bakari Juma, learned advocate. I have well considered the submissions by the parties. Briefly as per the affidavit, it is stated that the 1st respondent had sued the applicant herein in Land Case No. 379 of 2023. That on the date fixed for hearing of the said case, the applicant herein intends to produce documents which were neither annexed to the written statement of defence (WSD) nor produced at the first date of hearing. That the said documents were filed through list of additional documents on 03/9/2024 after the Final Pre-Trial Conference. It is stated that the said additional list of documents which are intended to be produced by the applicant in her defence when the Land Case will be called for defence hearing include Certificate of Title No. 85480, Transfer under power of sale dated 02/4/2020, Certificate of Sale dated 16/3/2020 and Transfer dated 02/4/2020. I I 2 Order XIII Rule 2 of the CPC provides thus; "/Vt? documentary evidence in the possession or power of any party which should have beep but has not beep produced in accordance with the requirements ofrule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non- production thereof; and the court receiving any such evidence shall record the reason for so doing" (emphasis added). The applicant is seeking for the leave of the court so that she can produce the named documents. The main issue is whether the applicant has shown good cause for the non- production as per the requirement under Order XIII Rule 1 of the CPC. In the submission, the counsel for the applicant, Mr Wasonga stated that the reason why the Certificate of Title No. 85480, Transfer under power of sale dated 02/4/2020, Certificate of Sale dated 16/3/2020 and Transfer dated 02/4/2020 was not produced at the first hearing and after the Final PTC was conducted is that the completion for disposition of the said documents was done amidst the trial and past the Final PTC. The counsel stated that the completion for the disposition of the said documents was done on 14/5/2024. He referred the court to annexure Akiba-1 as deposed under paragraph 6(a) of the affidavit. That in the back 3 of the Certificate of Title, a stamp bearing the endorsement from the Land Registry reveals the date. Mr Wasonga submitted further that the delay to file documents on time was also partly attributed to the pending transfer under power of sale from KCB Bank. That the transfer under power of sale at the KCB Bank and the mortgage process was not completed until when Final PTC was concluded i.e. past 21/5/2024. He added that under annexure ACB-1 deposed under paragraph 4 of the reply to counter affidavit, the applicant presented CT No. 85480 to the land registry on 14/5/2024 which was six (6) days before the Final PTC. To bolster his points, Mr Wasonga cited the case of Ramadhani Selemani Kambi vs. the Commissioner for Lands & 2 others, Civil Appeal No. 14 of 2020, the CAT at DSM. The counsel said that in the cited case, it was held that the applicant may be permitted to make production of documents belatedly upon showing good cause. He prayed the court to grant leave for the applicant to produce necessary documents. In reply, the counsel for the 1st respondent submitted that the instant application has been wrongly preferred by the applicant without praying for the court to depart from the scheduling order contrary to Order VIII Rule 23 of the CPC. That the applicant has not give reason to the court 4 on why it should depart from its previous schedule order dated 21/5/2024 where the applicant was recorded to have stated that there will be no more applications. The counsel for the 1st respondent submitted further that the present application is misplaced as the applicant has already filed the list of additional documents in the court on 03/9/2024 and having filed the same, she is now requesting the court to produce the same during the hearing. That the filing of the list of additional documents by the applicant was unprocedural as the same has been filed in total disregard of the scheduling and conference order dated 21/5/2024 as the list of additional documents has to be filed before the first hearing of the case. The counsel for 1st respondent added that, what the applicant was supposed to do was to file an application for departure from the scheduling order and then seek leave to file a list of additional documents. He prayed for the dismissal of the application with costs. In rejoinder, the counsel for the applicant reiterated the submission in chief and added that the applicant has reserved the right to file a list of additional documents during the first pre trial conference only that the same was filed belatedly and that's why the applicant is seeking the leave= 5 of this court to produce the said documents under the provisions of Order XIII Rule 2 of the CPC. He reiterated his prayers. Indeed, on 21/5/2024, the first pre trial conference was conducted and during that, the parties reserved their rights to file a list of additional documents. Also, the parties informed the court that all pleadings are completed and there are no any further applications. The applicant filed a list of additional documents on 03/9/2024 and it was belatedly filed. The applicant is seeking for the court's leave to produce the documents belatedly on the reason that they could not be filed on time as the completion for disposition of the documents which are Certificate of Title No. 85480, Transfer under power of sale dated 02/4/2020, Certificate of Sale dated 16/3/2020 and Transfer dated 02/4/2020 was done amidst the trial and past the Final PTC. Since the applicant reserved their rights to file a list of additional documents which they did but after the conduction of Final PTC and in the midst of the trial, I find that the instant application is competent before the court as the law allows the belated production of documents under Order XIII Rule 2 of the CPC if there are reasonable grounds to do so. I find that there was no need to depart from the scheduling order as the counsel for the 1st respondent has pointed since this application does not 6 change scheduling order. The applicant seeks the leave to produce belatedly the listed documents. In addition, there is also no need for the court to depart from the scheduling order as the instant application is made solely on the leave to produce the documents and it could have been done either orally before the court or by chamber summons and affidavit as the applicant has done. What the applicant is seeking is only to show the court, a good cause on why the intended documents were not produced on the first day of hearing. I am satisfied by the reasons advanced by the applicant on non­ production of the listed documents on time and I allow this application as prayed. Costs shall be in the course. 7