flavian kaiza vs chief executive officer tanzania building agency 2008 tzhc 297 8 october 2008
Failure by the defendant to file written submissions as ordered amounts to non-prosecution of the preliminary objection, warranting its dismissal with costs.
Source-derived case information.
- Citation
- flavian kaiza vs chief executive officer tanzania building agency 2008 tzhc 297 8 october 2008
- Parties
- Plaintiff: Flavian Kaiza; Defendant: Chief Executive Officer, Tanzania Building Agency
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 8 October 2008
- Procedural Posture
- Land Case / Ruling on Preliminary Objection
- Outcome
- Preliminary objection dismissed with costs.
- Legal Topics
- Preliminary Objection, Cause of Action, Non Compliance With Court Orders, Order 1 Rule 9 CPC
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Flavian Kaiza
Plaintiff
Chief Executive Officer, Tanzania Building Agency
Defendant
Procedural Posture
Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is misconceived and bad in law for lack of cause of action
- 2 Whether the suit is incompetent for contravening Order 1 Rule 9 of the Civil Procedure Code
- 3 Effect of failure to file written submissions as ordered by the court
Ratio Decidendi
Failure by the defendant to file written submissions as ordered amounts to non-prosecution of the preliminary objection, warranting its dismissal with costs.
Court Disposition
Preliminary objection dismissed with costs.
Orders
- Objection dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO.115 OF 2006 FLAVIAN KA IZA ............................................................. PLAINTIFF ^ VERSUS CHIEF EXECUTIVE OFFICER TANZANIA BUILDING AGENCY......................................DEFENDANT RULING Lonqwav, J. This ruling is on a preliminary point of law raised by the defence that the suit was misconceived and bad in law for lack of cause of action also that the suit was incompetent for contravening Order 1 Rule 9 of the Civil Procedure Code (Cap 30 RE 2002). On the first date of hearing the preliminary objection on the 8/06/2007, the counsel for the plaintiff was absent due to a bereavement in Bukoba. The plaintiff appeared in person so he was aware of the adjourned process to the 27th July, 2007. On this latter date the plaintiff and his counsel were absent, so, Mr. Mboya for the defendant prayed that the objections be argued by way of Written Submissions instead of an oral hearing that was intended. The schedule for filing Submissions was ordered thus: " Order: Written Submissions by 17/8/07, Reply 24/8/07 and Rejoinder if any 31/8/07. Ruling on notice Signed Judge 27/7/07" I have perused the record very thoroughly and I have seen none of the Submissions scheduled to have been filed by the order of the 27/7/07, as being duly filed. That is neither the defendant objectors nor the plaintiff/respondent to the objections, have obeyed the order of the court of the 27/7/07. The filing of submission has been held by courts, to be tantamount to a party appearing and prosecuting their case. In the instant matter the defendants had raised objections in their Written Statement of Defence which by failing to file their written Submission to argue the same as ordered, render their objections to be dismissed with costs, if there was no appearance and prosecution see the decision in Land Case No.250 of 2005 Hamisi Rajabu Musa Fujo fas the legal representative of the late Rajabu Musa Fmo') vs. Omar Ismail Abdi (unreported) by my learned brother Rugazia, J. which decision I associate myself with. Similar decisions exist on the issue but I was only able to access the above cited one. In the premises, the objection not having argued is dismissed with costs. JUDGE 8/10/08