20160927 TZHC Dar es Salaam

( , IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 182 OF 2012 1. ALI MUF.URUKI 2. NICHOLAS SIMINGWA 3. NADA MARGWE ......... PLAINtIFFS 4. DAVID SHAMBWE --s;·ABUBAKAR-·RAJABU·-XBRAHIM ____ ··-·- · ········----

VERSUS 1. VICTOR KIMESERA 2. ERARD MUTALEMWA ................. DEFENDANTS 3. ADAM NGAMILO 4. JACKSON MWAIKINDA

RULING MKASIMONGWA, l. On 6/5/2015 this court made a Scheduling order. According to the \ order this matter was assigned to Speed truck II; that the suit ought to have been concluded within twelve months from the commencement of the case. The suit was yet to be terminated even by 31/8/2016 when I asked the parties to address the court as· to why the matter should not suffer the legal consequences of the speed track expiry. 1 Acting for the plaintiff Mr. Massawe, the learned counsel contended that after setting the speed track the matter came before the mediator judge for mediation on 16/6/2015. It is when one Adam, learned advocate for the defendant informed the court that the 4th defendant has passed away on 15/2/2015 and they could not proceed with the mediation without having instructions from the deceased's family. The matter was adjourned to and the court ordered that the principal parties should be present. On the date (25/6/2015) Miss Regina Mduma appeared for the defendants and reiterated their position that they could not proceed with this matter without having instructions from the 4th defendant's survivors. The court marked mediation as failed and ordered the matter to proceed on 30/6/2015 before the trial Judge. Mr. Massawe contended further that when the matter came to the court. On 30/6/2015 the defendants were not in court and the court ordered the parties to

file the proposed issues for determination and the matter was scheduled for hearing on 11/9/2015 on which date they asked for directives regarding the status of the deceased's case. The court ruled the matter on 15/9/2015 and fixed the matter for hearing on 20/10/2015. On the date Mr. Mushumbusi acting for the Defendant informed the court that Mr. Mgongolwa, learned advocate who had the conduct of the case for the defendant had travelled to Iringa to nurse his seek mother. The case was then adjourned to 8/11/2015. On 20/10/2015 the Defendant had raised a preliminary objection on jurisdiction of the court alleged that this court has no jurisdiction to entertain this matter which was set for hearing on 9/11/2015. On 9/11/2015 when the matter came up for hearing of the preliminary 2 - - - -- - - -- objection Mr. Mushumbusi, appeared for the defendant. He asked for adjournment on ground that Mr. Mgongolwa was not present. The matter was then adjourned to 15/2/2016 when again the trial judge was not in office and the Deputy Registrar Hon. Siyani adjourned the same to 21/3/2016 on which date plaintiff's counsel sought for the court's directives in respect of the preliminary objection raised by the Defendants after the issuance of a scheduling order. The court gave the directives on 13/4/2016 that the preliminary objection raised be heard and the matter was set for hearing on

23/5/2016 when the plaintiff's counsel asked the court to adjourn the matter so that he may have ample time to do research in respect of this matter. Hearing of the preliminary was adjourned to 12/7/2016. Mr. Massawe contended that looking at this trend though it is true that the speed track has expired the fact that a preliminary objection was raised after the scheduling order, hearing of the suit was affected. There was no way the plaintiff could have proceeded with his case while there was a preliminary objection. He prays the court to consider these all circumstances and accordingly order for departure from the scheduling order of 6/5/2015 which had expired three months ago. On the other had Mr. Mgongolwa, the learned counsel for the Defendant contended that the plaintiff's counsel shows that there was a delay of the matter. He says on 19/10/2015 that is five months of the scheduling order, the defendants had filed preliminary objection. This had the effect of stopping of the speed track period. As the court had ruled that the preliminary objection should be dealt with the plaintiff ought to have 3 applied for extension of the speed track. This was not done. Mr. Mgongolwa contended further that in departing from the scheduling order the criteria applied is the interest of justice. Although the law does not impose obligation to one party, prudence could demand that the party

who sees that will be affected by the consequences of speed track expiry should apply for departure from or amendment of the scheduling order. In this case, Mr. Mgongolwa submitted, it is the plaintiffs. The later did not move the court for departure from or amendment to the scheduling order. He prays the court for an order requiring the plaintiff to take necessary steps to revive his suit which has expired. That is all from the parties. As it has been shown above, this court did on 6/5/2015 make a scheduling conference order. Order VIIIA Rule 4 of the Civil Procedure Code prohibits for further amendment to the scheduling order. The Rule reads as follows:- "Where a scheduling conference order is made, no departure from or amendment of such order shall be allowed unless the court is satisfied that such departure or amendment is necessary in the interest of Justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment, unless the court directs otherwise" As a general rule once a scheduling conference order has been made, it cannot be departed from or amended. A scheduling conference order can be departed from or amended by the court upon being satisfied 4 that it is necessary to do so in the interest of justice. In my view where in a suit the speed track, a component of a scheduling conference order, expires, and

where there is no order of the court departing from the speed track the suit is entitled to be struck out for it is incompetently before the court. To rescue it from being struck out there are two ways that can be followed One: is to apply from the court for an order departing from or amending the scheduling order in which the applicant must satisfy the court how it is necessary, in the interest of justice, that the order be departed or amend. The application for an order departing for or amending the scheduling conference order should be made before the expiry of the speed truck. Two: where the speed has expired the parties to the suit must show cause to the court why the suit should not suffer the legal consequences of the expiry of the speed track in the suit (See NAZIRA KAMRU V/S MIC TANZANIA LTD, CIVIL APPEAL NO. 111 OF 2015. CAT (Unreported). Where the court is satisfied, to the extent of finding it being necessary in the interest of justice, why the suit should not be struck out, it may order for departure or amendment of the scheduling order. In this matter the parties do not apply for an order that the scheduling order be departed from or amended. It is the court that ordered them to show cause, why the proceedings should not suffer the legal consequences for drugging beyond the speed truck. I have heard the parties. Essentially the matter is not contentious Mr.

Mgongolwa, prays the court that it gives an order or direction that the plaintiff should take necessary steps to revive his suit. This suggests for an application to be made by the plaintiff to tht effect. As the speed track has expired I think the proper way as stated 5 above was for the court to invite the parties to address it as to why the suit should not suffer the legal consequences. Going by the events as narrated by Mr. Massawe and to be specific adjournments for the reasons attributed to the court and the Defendant and the fact that the defendant has raised a preliminary objection after having the scheduling conference order been given, I find it being in the interest of justice that the scheduling order be departed from. As a result the speed track period is extended for 12 months from today. No order as to costs is made. c!!J~~ E. J. Mkasirfo;wa

JUDGE 27/9/2016 6 Date: 27/9/2016 Coram: Mkasimongwa, J For the Plaintiff: Mr. Massawe (Advocate) For the Defendant: Mr. Mgongolwa, Alex (Adv) C.C. Mr. Mabugo Court: Ruling delivered in Chambers this 27th of September, 2016 in the presence of Mr. Massawe and Mr. Mgongolwa, learned advocates for the plaintiffs and defendants respectively. E. J. Mkasimongwa

JUDGE 17/9/2016 Mr. Massawe (Advo): My lord we pray for adjournment and the matter be set for hearing of the P.O. Order: Hearing (P.O) on 8/11/12016 E. J. Mkasimongwa

JUDGE 27/9/2016 7