dishon john mgaya vs nyerere disignated district hospital mugumu 2009 tzhc 185 4 august 2009

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA CIVIL CASE NO. 04 OF 2008 DISHON JOHN MGAYA................................. PLAINTIFF Versus NYERERE DISIGN ATE D DISTRICT HOSPITAL - MUGUMU............... RESPONDENT RULING G. K. RWAKIBARILA. J The plaintiff Dishon John Mgaya averred, inter alia, in paragraph 2 of his reply to the Written Statement of defence that the written statement of defence which the defendant filed should be dismissed on grounds that it was filed out of time. The background of this matter is that plaintiff instituted this suit on 13.02.2008. And on 12.03.2008, a copy of the plaint was dispatched to the defendant t/a Nyerere Designated District Hospital-Mugumu vide an EMS which is Exhibit A1 in this application. Also enclosed in that Exhibit A 1 were an "In itia l . v* N otice!' and a "Sum m ons to A p p e a r" constituting Collective Exhibit R l. l This plaintiff during hearing of this application did not refer to any Law in which he based his prayer for dismissal of the written statement of defence. But learned counsel for defendant Mr. Magongo in his reply pointed out that so long as defendant was served a summons to appear which is in compliance with Order 8 Rule (1) of the Civil Procedure Code, Cap. 33 R.E. 2002 plaintiff was not justified to make an application like the current one. That Rule 1(1) of Order 8 of The Civil Procedure Code (supra) provides that: "W here a sum m ons to appear has been issued, the defendant m ay, an d if so re q u ire d b y the co u rt sh a ll, w ith in seven days before the firs t hearing, p re se n t a w ritte n statem en t o f d efen ce." So that in view of that Rule 1(1) of Order 8, it was not proper for plaintiff to rely on such a background to pray for dismissal of the written statement of defence. Then this- application is rejected to wit, hearing of this case shall follow other stages in the sequence. For purposes of clarification, this suit is at the stage of mediation which was stayed for purposes of entertaining this / application. Therefore the mediation should from this stage continue before the mediating Hon. Judge Mr. K. M; Nyangarika, J. Costs for this application alone to follow the event. Sgd: G. K. Rwakibarila JUDGE 02.08.2009 Pate: 04.08.2009 Coram: G. K. Rwakibarila, J Plaintiff: Present Defendant: Absent B/C: Leonard Court: Ruling delivered at Mwanza this»4th day of August, 2009 at jf plaintiff but absence of defendant. f w ■ *f ■ *. * \ i V - 1 ** m f*L '<!>$ ,v, m II G. K. Rwakibarila \ • JUDGE m • rrr At Mwanza 04.08.2009 3