20120430 TZHC Dar es Salaam

.. 1 IN THE HIGH COURT OF 'rANZANIA AT DAR ES SALAAM CIVIL CASE NO. 83 OF 1996 l~- ALLY KHARBUSH 2. AMRAN SONGORO ·a. SHARIFA KILEMILE • • • • • • • • • • • • • • PLAINTIFFS ·4. MARIAM MANGUSHI ·5. ABDUL MBONDE VERSUS 1. YUSUF MANJI as personal legal represf:'.:ntative of MEHBUB MANJI 2. QUALITY GROUP LIMITED as successor of DEFENDANTS 3. QUALITY GARAGE LIMITED 4. ASHOK LEYLAND LIMITED (Third; Party) Date of last order-24/2/2012 Date of Ruling- 30/4/2012 / RULING Shangwa, J. The suit between the parties is a long time one. It was presented for filing on 2 nd May, 1996 ,fvhich is over 16 years i ago. In the course of time, the following events took place and were put on record. First, on 7 th October, 2001, the 1st defendant· Mehbub Manji died. His son Yusuf Manji was .,. C '.I 2 substituted as his legal representative. Second, the 3 rd plaintiff Sharifa Kilemile died. One Muharami Bakari was joined in the suit as her legal representative. Third, the 5 th plaintiff Abdul Mbonde died. One Said Abdul Rahman Said was joined in the suit as his legal representative. ______ ()_n 15 th Octol::>er,_~Q_QJ,_ Chipeta, J. (Rtd) recorded that mediation has failed. The final pre_~ trial conference was .~ held on 18 th May, 2006 and four iss"9es were agreed upon by counsel for the parties and recorded by the court as follows: 1. Whether there is any breach of con tract by the 1st and 2 nd defendants. 2. Whether there is any fraud or misrepresentation on the part of the 1st and 2 nd defend.an ts and Third Party as alleged or at all. l. 3 1 3. Whether the 1st and 2 nd defendants were negligent in performing their contractual obligation. 4. To what other reliefs are the parties entitled thereto. After framing issues, the suit was fixed for hearing on various dates. On 25 th February, 2010, Mr. Bwahama for - - - - - the plaintiffs prayed for the amendment of the plaiiit-witli _a______ - view of attaching some annextures 1to the plaint. The prayer was granted .. On 5 th April, 2011 another Advocate for the plaintiffs Mr. Yahaya Njama informed the court that he was prepared to settle with the defendants out of court. Apparently, the defendants were not ready to do so. On 16 th September, 2011, counsel for the defendants filed a Notice of Preliminary objection against the hearing of the suit on three grounds which are as follows:- ... -·-,- 4 j 1. That, the plain_t 1s bad in lavv for misjoinder and non-joinder of parties in the suit .. 2. That, the plaint does not disclose any cause of action against the 1st and 2 nd defendants. _}. That, the speed track scheduled for this suit has ------ expired and no extension of ttme has been-sought-------- l ' and obtained in terms of the l?-w rendering the suit incompetent. Hearing of the preliminary objection was fixed on 27 th September, 2011. On that date, Mr. Yahaya Njama informed this court that he 1s withdrawing from representing the plaintiffs. He was accordingly marked to have withdrawn. After his withdrav.lral, the 3 rd plaintiff's legal representative prayed for adjouf.;,nment until another \ date of hearing the preliminary objection with the view. of engaging another Advocate. Thereafter, Mr. Emmanuel 5 i Makene was engaged by the plaintiffs as their new Advocate. On 9 th November, 2011, Mr. Emmanuel Makene through the 1st plain tiff prayed the court to argue the preliminary objection raised by the defendants by way of written submissions~ __ Mr~- Ratansi-for- -t-he-clef@ndants__had ______ _ no objection to his prayer and 1I ordered that the preliminary objection should be argued by way of written submissions. It was so argued by counsel for the parties. In his written submissions, counsel for the defendants dropped the 1st and 2 nd grounds of objection and argued the 3 rd ground only. On this ground, it was submitted by counsel for the defendants that the! maximum period to conclude a suit which is provided r for under the Civil Procedure Code [Cap. 33 R. E. 2002] is twenty four months from the day of its institution. He -contended that since March, 1996 when the suit was instituted in this court to 'l. . ' 6 the present date is 15 years and that this period is not provided for under the Civil Procedure Code. In addition to that, counsel for the defendants contended that as there has been no leave of the court to have the period of the case extended and that as the suit contravenes the --provisloiis--or--o-.v-n--A--r-~---3--of the___CtvU Procedure Code, it . ------ ----------- - should be dismissed. In reply to the written submissions by counsel for the defendants, Mr. Emmanuel Makene for the plaintiffs submitted that · the preliminary objection raised by the plaintiffs should be dismissed with costs. In this case, however, the plaintiffs did not raise any preliminary ; objection. The defendants are the ones who raised the preliminary objection against the heating of the suit. They are arguing that as the suit contravenes the provisions of O.VII A r. 3 of the Civil Procedure Code, it should be dismissed with costs. t' 7 Addressing himself to the point of objection raised by the defendants, Mr. Emmanuel Makene did not deny that the maximum period to conclude a suit under the Civil Procedure Code is twenty four months and that this case has been pending in court for a period of fifteen years withouf-application-foF-leave__ ofthe -~-Q~rt ' to extend the time ------~--------- -- -- -- within which it has to be concluded. r However, he submitted that the purpose of the preliminary objection raised by the defend an ts is to apply delaying tactics and that they are applying delaying tactics because they have no reasonable defence to raise against the claim by the plaintiffs. Furthermore, he submitted that the court was aware of the time and speed track o~ the_ case but despite I the fact that the subject of time wasJ on several occasions brought to the attention of the court, in the interest of justice, the court did not chose to dismiss it on grounds that it has absolute chances of success. 8 t· I have examined the entire record 1n order to satisfy myself on the correctness of Mr. Emmanuel Makene's submission that the question of time within which the case had to be concluded was raised on several occasions but that the court did not dismiss the same on grounds that it ------- -has--iiffsotate--chan-ces- of--suc_c_e ~~_._ ___Upon --· ---- --- doing so, I have found that in actual fact, no speed track of the case between the parties has ever been fix~d by the court. What is on record is an order by Chipeta, .J. (Rtd) made on 9 th January, 2001 fixing the First Pre-trial and Scheduling Conference to take place on 9 th February, 2001. The said conference never took place. Therefore, Mr. Emmanuel Makene's claim in his written submissions that the question of time limit within which 1 the case had to be . concluded was raised on several occasyions is not. supported ! by the court's record. According to practice, the speed track of any given civil case is fixed during the First Pre- 9 ) 1 trial Conference. As already mentioned, the said conference never took place. Although no speed track has ever been fixed by this court within which the case had to be concluded, it is common knowledge that the maximum period under the Civil Procedure Code . ___withiri -which---a- 1 -case----has. -to___ be- - -------- ·-· concluded • is twenty four months from,T the date of filing. As this case was presented for filing on 2 nd May, 1996, twenty four months expired on 2 nd May, 1998 and between 2 nd May, 1998 and 16 th September, 2oi 1, the record shows that it was only once that one of the counsel for the plaintiffs, Mr. Bwahama prayed for amendment of the speed track. His prayer was rejected by the cour~ on ground that it had already been ov\rtaken by events on record because no speed track has ever been fixed in this case and the maximum period of twenty four months 10 ' ~ within which a civil suit has to be coricluded had expired a ' long time ago. The question to be determined now is whether or riot the suit between the parties is competently before this court in view of the fact that the maximum period under law within which it had-f6-'6e concluc1ed-h-as--expi-Fed--se:ven______ _ times counting from 2 nd May, 1996 when ( it was filed to the present day. In my op1n1on, the suit between the parties is incompetently before this court. Unlike in any other country in the Commonwealth which! do not have the law to restrict adjournment of cases by courts of law, in ' Tanzania days are gone when a sui1~ could be adjourned l, from time to time for ten, twenty or~ thirty years without being concluded. This is because prolonged delay in the finalization of civil cases is restricted by law namely O. VII IA rr 3 & 4 of the Civil Procedure Code .. I agree with counsel 11 for the defendants Mr. Ratansi that· the maximum speed track period in which a suit can legally be adjourned for any step in it is limited to twenty four months from the date of filing unless leave of the court to continue adjourning it has been sought and granted. In this case, -theie-,--is- n:o--su-ch--leave.- ---L -therefp_r~_:._ J.!phold the point of --------- preliminary objection raised by counsel for the defend an ts and I dismiss the suit between the parties. However, I order that each party should bear its own costs. 12 Delivered ih open court this 30 th day -of April,_ 2012_ in the - - - presence o·(Mr. Shibuda for- -plaintiffs _ap.d Mis~ Bogoro _for Mr. Ratansi for the defendants. ) if -. -·· -