kcb bank tanzania limited vs mariam omari zahoroand others 2021 tzhclandd 217 17 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 51 OF 2020 (Originating from Land Case No. 320 of 2017) KCB BANK TANZANIA LIMITED............................APPLICANT VERSUS MARIAM OMARI ZAHORO.............. ...... ....1st RESPONDENT HUDUMA GINNERS LIMITED.......................... 2nd RESPONDENT SADIK RAMADHANI GWAGA..........................3rd RESPONDENT MEM AUCTIONEERS AND GENERAL BROKERS LIMITED..........................4th RESPONDENT Date of Order: 19.04.2021 Date of Ruling: 17.05.2021 RULING V.L. MAKANI. 3 The applicant has filed this application praying for the following orders: 1. That th is honourable court be pleased to fin d out that there exists su fficien t reasons to ju stify departure from and o r the am endm ent o f the scheduling conference order issued by the court and interests o f ju stice dem ands as such. 2. That an cillary to granting prayer (1) herein above, the honourable court be pleased to issue an order to allow the applicant to am end her w ritten statem ent o f defence to the am ended p la in t file d in th is honourable court on 27/06/2018 so that she is able to lodge a counter claim against the 2nd and 3 d respondents respectively and other individuals not p arty to these proceedings. 3. That the costs and incidental to th is application abides to the resu lts o f the m ain s u it 4. A ny other re lie fs that the court sh a ll deem ju s t and fit to g ran t The application is under Order VIII B Rule 23 of the Civil Procedure Code CAP 33 RE 2002 (the CPC) and is supported by the affidavit of Elisa Abel Msuya, Advocate representing the applicant herein. The application was argued by way of written submissions. Mr. Msuya for the applicants submitted that the request for the amendment and variation of the scheduling order dated 27/06/2018 is intended to enable the applicant to lodge a counterclaim against the 3rd respondent (the mortgagor), and Silvery Buyaga, Baraka Magesa and Maijal Mayiku who were surites who tendered Directors personal guarantee to secure the loan. He said their firm Trustmark Attorneys were newly instructed and they discovered various facts which according to them legal prudence and convenience demands that all claims be heard conjunctively since they are interrelated and concerns same parties. In this way time for both, the court and all parties shall 2 be saved unlike when individual suits are filed and prosecuted separately against the surites and borrower who executed the securities. Mr. Msuya relied on Order VIIB Rule 23 of the CPC, Order VII Rule 10(1) and (2) of the CPC which allows the defendant to set up a counterclaim and other third parties. He also relied on the case of African Medical and Research Foundation vs. Steven F. Emmanuel & 3 Others, Land Case No. 17 of 2011 (HC-Main Registry) (unreported), which entailed the court to consider departure from the scheduled conference order based on the interest of justice. That is will justice be served by varying/amending the speed track? He said the case carried the "will justice be served principle". He went on saying that courts abhor multiplicity of case as was held in the cases of Tanzania Knitwear Limited vs. Shamshu Esmail [1989] TLR 48 referred in MIG Tanzania Limited vs. Minister for Labour & Youth Development & Attorney General, Civil Appeal No. 103 of 2004 (CAT-DSM) (unreported). Mr. Msuya said the intended counterclaim would be easily and conveniently tried together with the main suit and this can 3 only be achieved if this application is granted. He prayed for the application to be granted and costs to abide the results of the case. The 1st respondent opposed the application. A counter-affidavit in opposition was filed and was deponed to by Frank Andrew Churidu her advocate who also filed the submissions in reply. In his submissions Mr. Chundu agreed that Order VIIIB Rule 23 of the CPC allows departure or amendment of the scheduling order but there are set of conditions for the same to be granted. The interest of justice which serves all parties to litigation must be considered, but the applicant though she has claimed that justice requires departure has not demonstrated why she did not lodge the requisite counterclaim in the first place considering that she had the services of learned advocates from the very beginning. He said the main suit, that is, Land Case No. 320 of 2017, has been pending in court for 5 years and the applicant has not stated why at the time of filing her defence to the amended plaint she did not file her counterclaim while she has the services of GRK Advocates and there are ho reasons why the said counterclaim was not filed then. He said most of what has been stated in the affidavit is hearsay as the affidavit of Damas Mwagang^ would have been filed as well in terms of the position in John Chuwa vs. 4 Anthony Chiza [1992] TLR 233 and confirmed by the Court of Appeal in the case of Tanzania Breweries Limited vs. Herman Bildad Minja, Civil Application NO. 11/18 of 2019 (CAT^DSM) (unreported). He said since the current advocate did not have conduct of the case, they ought to have been an affidavit of Damas Mwagange who gave information to the deponent. He thus concluded that the paragraphs on information are all hearsay and the court should not act on them. He said the paragraphs 3(ii) a, b, and 5 of the applicant's verified to be based on information from Damas Mwagange are mere hearsay and paragraphs 3(0, 4(0, (il) (a), (b), 6 and 7 as verified to be of personal knowledge of the deponent cannot be proved by the deponent since they are internal affairs of the applicant. Mr. Chundu relied on the cases of Isaack Sebegele vs. Tanzania Portland Cement Co. Limited, Civil Reference No. 26 of 2004 quoted in the case of Justus Tihairwa vs.Chief Executive Officer, ItCL, Civil Application No. 131/01 of 2019 (CAT-DSM) (unreported) and Yobu Sikolo & 16 Others vs Furahini Vahaye, Misc. Lad Application No. 105 of 2018 (HC-DSM) (unreported). Mr. Chundu further said an advocate can only swear an affidavit on behalf of his client on matters of his personal knowledge only. He 5 cited the case of Lalago Cotton Ginnery& Oil Mills Company Limited vs. The Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002. He concluded that the affidavit supporting the application lacks the justifiable reason to warrant departure from the scheduling order and further it is defective as it contains hearsay and statements that cannot be in the deponent personal knowledge. He said the interest of justice principle deposed in the affidavit dictate unnecessary delays of cases before courts of law. He prayed for the application to be dismissed with costs for interest of justice. In rejoinder Mr. Msuya said that paragraphs 7,9(0, 00, (IN), (iv), (vii) (a), (b)/ (c) and 11 of the affidavit states the reasons why the counter-claim was not previously filed. For instance, he said in paragraph 11 it is stated that the previous lawyers had inadvertently omitted to counterclaim. He said inadvertence is a minor lapse and therefore excusable. He relied on the case of Kambona Charles (as administrator of the estate of the late Charles Pangani) vs. Elizabeth Charels, Civil Application No. 529/17 of 2019 (CAT- DSM (unreported). He said failure to counterclaim cannot be termed 6 gross negligence it is a minor lapse and made bonafide so it can be ignored. On the affidavit he said paragraphs 3(ii), (a) and (b) are on information from Damas Mwagange and the said paragraphs were properly verified that they were on information and according to Salim Vuai Foum vs. Registrar of Cooperative Societies & 3 Ithers [1995] TLR 75. On paragraphs 3(i), 4(i), (ii), (a-e), (ii), (a), 6 and 7 the deponent said he perceived information after he was instructed after reading various pleading and documents supplied to him from his client the applicant. He pointed out that even if the court finds that the paragraphs in the affidavit are defective the remedy is not to dismiss the application but to expunge the inconsequential paragraphs such as Phantom Modern Transport (1985) Limited vs. D.T. Dobie (Tanzania) Limited, Civil References Nos. 15 of 2001 and 2 of 2002 (CAT-DSM) (unreported). He said since the reading of pleadings and various documents availed to him then this is direct evidence admissible under section 62(l)(c) of the Evidence Act CAP 6 RE 2019. He reiterated his prayers that the application is devoid of merit and for it to be dismissed with costs. 7 I have gone through the chamber summons affidavit, counter- affidavit and submissions by the parties. The main issue for consideration is whether the applicant has advanced sufficient reasons to warrant this court to vary/amend the scheduling order of 27/06/2018. Order VIII B Rule 23 of the CPC states: "W here a scheduling conference order is made, no departure from o r am endm ent o f such order sh a ll be allow ed unless the co u rtis sa tisfied that such departure o f am endm entis necessary in the interests o fju stice and the p arty in favour o f whom such departure o r am endm ent is made sh a ll bear the costs o f such departure o r amendment, unless the court directs otherw ise." The main reason advanced by the applicant for praying for the departure was mainly advanced in the rejoinder submissions and in paragraph 11 of the affidavit where the applicant said that the advocate who previously had conduct of the matter had inadvertently omitted to plead the necessary parties to the suit. The applicant also prayed for the court to invoke the so called "for the ends o fju stice p rin cip le " In principle the applicants are praying for departure of the scheduling order inorder to amend the WSD to include a counterclaim. On the other hand, the respondent was of the view that the applicant has not fully demonstrated why the court should vary/amend the scheduling order. It is without doubt that this suit was filed way back in 2017 and it is now five years down the line. It is also not in dispute that there was an amendment of the plaint and the applicant had at that point in time an opportunity of filing a Written Statement of Defence (WSD) and counterclaim. It is further not in dispute that the applicant has all along been represented by able learned Counsel. Now with all this in mind it is my considered view that, variance and or amendment of the scheduling order would not warrant the so-called ends of justice but will bring about unwarranted delays which is injustice to the other parties in the suit. In other words, if the departure of the scheduling order is granted to allow the applicant to cause the amendment as prayed, then it would cause unnecessary delay to the finalization of Land Case No.320 of 2017 which case has been dragging in the registry for a long-time. It will also cause a lot of injustice to the 1st respondent's case in re-filing a reply to the WSD and WSD to the counterclaim. Considering the nature of the intended amendment, this may even entail starting the case afresh which, in my view, is an unwarranted exercise and cannot be compensated by costs. Mr. Msuya has pointed out that the omission by the previous advocate was not gross negligence but a minor lapse. With due respect I would hot call the failure by a law firm with seasoned advocates as a minor lapse bearing in mind that they are assisted by the legal department of the applicant, a renowned Bank. I would rather say there was casualness in the manner the matter was handled especially when opportunities arose, but they were not taken seriously by Counsel. It was also pointed out by the applicants that multiplicity of suit is not encouraged by the court. Indeed, that is the position, but each case has its own facts and must be decided on its own merits. In that regard and considering the time this matter has taken in court it would not be prudent for the matter to start anew as a counterclaim is a fresh suit in its own way. In the result thereof, it is my settled view that the proposed departure from the scheduling order and the subsequent amendment sought by 10 the applicant has no merit and it is hereby rejected. The application is thus dismissed with costs and I proceed to order the suit to proceed as appropriate. It is so ordered. &/V V.L. MAKANI JUDGE . . . __________ ^^y 17/05/2012 C s x iC ‘ ■ ’ 11