Ruling Land Case 6618 of 2024 John William Ngowi vs Josephina Mremi Josephine William Ngowi and 2 others

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND CASE NO. 6618 OF 2024 JOHN WILLIAM NGOWI.............................................................PLAINTIFF VERSUS 1. JOSEPHINE RASIELI MREMI @ JOSEPHINE WILLIAM NGOWI 2. LINDA WILLIAM NGOWI …………………..DEFENDANTS 3. SANFORD WILLIAM NGOWI 4. ROBERT WILFRED NGOWI RULING 25th February & 25th March, 2025 MONGELLA, J. This Ruling follows a legal issue raised by the Mr. Elikunda George Kipoko, learned advocate for the defendants, to wit: That the suit is unmaintainable in law due to failure by the plaintiff to attend mediation session and his failure to appoint and authorize in writing for a representative to attend and have capacity to settle. Page 1 of 7 Briefly, this matter came for 1st Pre-trial Conference and Scheduling Order on 14.08.2024 whereby Hon. Simfukwe, J. was appointed to mediate the parties. The record reveals that the parties appeared before the Hon. Mediator Judge on 29.08.2024 and mediation was fixed to be conducted on 11.09.2024. The record shows that on 11.09.2024, neither the plaintiff nor any of the defendants appeared before the Mediator Judge. However, Mr. Moses Ebenezer, learned advocate appeared for the plaintiff while Mr. Kipoko and Ms. Lilian F. Mushi, learned advocates, appeared for all defendants. In the premises, the Hon. Mediator Judge remarked that the mediation had failed and ordered that the matter to be remitted back to the trial Judge. When this matter was fixed for final Pre-Trial Conference before this Court, Mr. Kipoko raised the said issue. To that effect, the schedule for the parties to file their written submissions was duly fixed. However, Mr. Ebenezer failed to comply with the order rendering determination of this issue to proceed ex parte. In his submission in regard to the issue raised, Mr. Kipoko, referring to Order VIII Rule 28(1) and 29(a) of the Civil Procedure Code [Cap 33 R.E 2019] alleged that an authority to settle dispute given to a party under the provision is distinct from instructions given to an advocate to conduct the case. He further cited paragraph 10.4.1 of the Court Annexed Mediation Guidelines, 2024 alleging that where mediation is by representation then the party therein must sign Form MD/3 authorizing the representative to settle. Page 2 of 7 The learned counsel averred that the plaintiff did not attend mediation and neither did he confer his advocate authority to settle as required by the law. He contended that the omission by the plaintiff meant non-attendance to mediation proceedings whereby the effect is for the suit to be dismissed with costs. I have considered the arguments by Mr. Kipoko in the legal issue he raised. Considering that the issue is founded under Order VIII Rule 28(1) and 29(a) of the Civil Procedure Code, which he referenced, I find it pertinent to reproduce the same as hereunder: “28 (1) A party to a mediation session shall have authority to settle any matter during the mediation session.” “29 (1) Where it is not practicable to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the mediator shall remit the file to the trial judge or magistrate who may— (a) dismiss the suit, if the non-complying party is a plaintiff, or strike out the defence, if the noncomplying party is a defendant. Mr. Kipoko also referred to paragraph 10.4.1 of the Court Annexed Mediation Guidelines, 2024 which I will only reproduce items (a) to (d) that the Counsel referred to. “10.4.1. Introduction. The introduction shall comprise the following: (a) welcoming remarks; (b) self- introductions; Page 3 of 7 (c) a declaration of conflict of interest, if any, and, if it appears to him that there is such a conflict, having a bearing on his impartiality, he shall cease to act and communicate to the court his inability to act; (d) recording the appearance and confirmation of authority to settle in Form MD/3 as set out in these Guidelines where the appearance is by representation;” As it is evidently appearing, Order VIII Rule 28(1) of the Civil procedure Code notes that a party to mediation shall have the authority to settle. Rule 29(1) of the Order provides for a situation where the plaintiff does not attend mediation proceedings whereby, the trial Judge or Magistrate has mandate to dismiss the suit. In this issue, Mr. Kipoko is alleging that paragraph 10.4.1 of the Court Annexed Mediation Guidelines was not observed. In his stance, since the plaintiff was represented and did not appear in person, Item (d) of the mentioned guideline ought to have been observed. Having observed Item (d) of paragraph 10.4.1 of the guidelines; I find it apparent that they require during introduction stage that there needs to be recorded appearance and confirmation of authority where a party is represented. The Form, MD/3 could not be any clearer on the issue. The contents of the form are as follows: Page 4 of 7 APPOINTMENT OF A REPRESENTATIVE AND AUTHORITY TO SETTLE I…………………... do hereby confirm that Mr./Ms……………… ………...a principal officer of the Plaintiff/Defendant has been duly authorized to represent the Plaintiff/Defendant/third party and make binding decisions on its behalf at the mediation session on………... day of……….20……or any other subsequent date unless this authority is revoked. Dated this ………… day of …………….………. 20…………… ………………………………………………… SIGNATURE AND STAMP While the guidelines provide for the form confirming authority to settle, Order VIII Rule 27 recognizes advocates representing the parties to mediation. It states: “(1) The party or his advocate or both, where the parties are represented shall be notified of the date of mediation and shall attend at the mediation session. (2) Where a third party may be liable to satisfy all or part of a judgment in the suit or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the suit, the third party or his advocate may also attend the mediation session, unless the court orders otherwise.” Page 5 of 7 It is my view that Rule 27 is quite elaborate in interpretation that mediation can be attended by either a party or his or her advocate. I find it is why the two provisions of the Rule mention the party or his advocate meaning that the law considers that where a party is represented by an advocate then his advocate has the full mandate to act in his or her interests. On the other hand, the guidelines are not necessarily confined to representation by an advocate. The Form generally serves as proof of representation and authority to settle where a party whether a natural person or corporate body is represented during mediation proceedings. This representation could as well not be by an advocate. Example, a principal officer could be acting for the plaintiff or defendant company or a family member for the plaintiff or defendant. From the above observation, I find that Mr. Ebenezer’s attendance and authority as an advocate and party with authority to settle is well recognized under Order VIII Rule 27 of the Civil Procedure Code. The form MD/3 was not a mandatory requirement in this case since the learned counsel’s presence was well established as the plaintiff’s advocate. As his attendance was proper, the mediation was regulated per the law. In addition, the guidelines do not supersede the provisions of the Civil Procedure Code, which is a statutory law. Before penning down, I wish to remark that am surprised by Mr. Kipoko’s act to raise this issue after the mediation was completed; Page 6 of 7 in fact, a few sessions after the mediation being marked failed. If he was in doubt as to the authority possessed by Mr. Ebenezer to settle on behalf of the plaintiff, in my view, as a responsible court officer, he should have raised the issue during mediation as this requirement was to be complied with during mediation. Apart from failure on his part to raise the issue then, he too did not possess Form MD/3 which he alleged was important. Mediation is a friendly process meant to expedite dispute settlement process. It is therefore a duty of every participating party and/or court officer to facilitate the process smoothly. As I have reasoned, this issue is without merit and I hereby dismiss it. The matter shall thus proceed to hearing on merits. Considering that Mr. Ebenezer defaulted in submitting on this issue. I make no orders as to costs. Dated and delivered at Moshi on this 25th day of March, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 7 of 7