FIRST NATIONAL BANK T LTD VS WASWARD WILSON MAPANDE COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 75 OF 2014 FIRST NATIONAL BANK TANZANIA LIMITED.........PLAINTIFF VERSUS WASWARD WILSON MAPANDE DEFENDANT 24th February & 5th March, 2015 RULING MWAMBEGELE, J.: This suit filed by the plaintiff on the 13.06.2014 is in respect of the defendant's failure to repay back the loan money disbursed to him by the plaintiff. At the first pre-trail conference held on the 22.10.2014 the suit was set to be finalized within ten months, which according to the order of this court (Makaramba J.), is supposed to expire on the 13.03.2015. The record shows that mediation has not taken off due to some diverse reasons, mainly, the absence of the parties (on the 05.11.2014), and the demise of the defendant's grandfather (which necessitated adjournment on the 15.12.2014). When the suit came up for mediation on the 24.02.2015 before me, Mr. Mushi counsel for the plaintiff prayed for extension of time within which to finalise this case. The prayer was made under rule 32 (3) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (henceforth "the Rules"). It is then that I put a question to the learned counsel as to whether the powers to grant such prayer are within the realm of a mediator. In response, the learned counsel told me that that has been the practise and that the delay was not their own making. I had to adjourn the matter so that I can make a ruling thereon. This is the ruling in that respect. It must be recorded from the outset that the Rules are designed to ensure that substantive justice is dispensed in a timely and efficient manner. This can be discerned from the whole design of the Rules from the format to the contents. Rule 4 thereof substantiate my observation. Accordingly, any interpretation and application of these rules should be one that results into expedition of the administration of substantive justice to the parties to litigation. The question which comes to the fore in the circumstances is whether a mediator, under the Rules, can grant a prayer for extension of the lifespan of the case. Essentially, this prayer requires departure from the 2 scheduling order made by the trial judge at the pre-trial conference. The learned counsel for the plaintiff, apart from referring me to practise of this court has not given me any authority to back his prayer up. The Rules are relatively new in our midst, they being into force since 01.07.2012. Unfortunately, my quick scan through the court files both closed and continuing, has not landed me on a situation where my predecessors have had an opportunity to determine this question. I will therefore be guided by the Rules as well as the rules of statutory interpretation. Let me start with explicit powers of the mediator under the Rules. Under the provisions of rule 36 of the Rules the mediator has powers to dismiss the suit, order a party to pay costs and or make any other order that is deemed fit. He also has powers under rule 38 to restore the case that was dismissed for want of appearance in case an applicant shows sufficient reasons for non-appearance. These powers are very plenteous and presuppose that the mediator is a judge, for who else can dismiss, order to pay cost and or make any other order that deems just as well as restore the suit if it is not a judge? But the mediator under the rules cannot necessarily be a judge. A challenging situation may be imminent if the appointed mediator is not a judge. The provisions of rule 3 of the Rules define the term "mediator" as: "... either a Judicial officer defined under the judiciary Administration Act, or any other law, 3 or any such person appointed by the Chief Justice under the provisions of rule 9 subrule 1 of these Rules" Under the Rules, therefore, there is a possibility that a person who has never been to a law school can be appointed as a mediator. Much as the Rules are geared at expeditious disposal of suits, disposal of suits by a lay person in the manner provided for by the provisions of rules 36 and 37 may bring justice to jeopardy. It is high time, in my considered opinion, the maker of the rules; His Lordship the Chief Justice, made relevant amendments to these provisions so as to resen/e judicial powers to judicial officers only. The provision of sub-rule (3) to rule 32 of the Rules are instructive as far as extension of the lifespan of the case is concerned. These provisions categorically require any party concerned to make an application to the court for extending such lifespan thirty days before the expiry of the designated lifespan. This rule is under PART IV of the Rules whose title reads "PRE-TRIAL AND SCHEDULING CONFERENCE" These provisions are applicable by a trial judge. In my considered opinion, the powers of the mediator are vividly provided for under PART V of the Rules titled "COURT ANNEXED MEDIATION" and as alluded to above, include appropriate orders on non-attendance of parties and restoration of suits dismissed for non-appearance to mediation. Powers to extend the lifespan of a case are not included in the powers of the 4 mediator. If the maker of the Rules intended that these powers; that is, powers to extend the lifespan of a case, should be within the ambits of the mediator, he would not have failed to state so as categorically as he did in respect of other powers specifically outlined under Part V. This would imply, as I perceive, that the powers to extend the lifespan of a case were meant to be reserved for the trial judge only. I find fortification on this stance in the Latin maxim expressio unius est exc/usio a/terius- the expression of the one is the exclusion of the other (also termed indusio unius est exdusio a/terius or enumeratio unius est exdusio a/terius}. The situation can also manifest in the Latin Maxim expressum fadt cessare tadtum (broadly, "the expression of one thing excludes the implication of something else"). In the circumstances, and for the above stated reasons, I reject the application made by the counsel for the plaintiff to have the time allotted for finalization of this suit extended. No order is made as to costs. DATED at DAR ES SALAAM this 5th day of March, 2015. 5