20070306 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 26 OF 2004 ·1. MR. BALDEV NORATARAM VARMA .......... 1 8 T PLAINTIFF 2. MR. VIKAS VARMA .................................. 2ND PLAINTIFF 3. NATIONAL FURNISHERS LIMITED ............ 3RD PLAINTIFF ·vERSUS 1. MR. ROBERT SCHELTENS ....................... 1 8 T DEFENDANT 2. MR. DAVID RYAN SCHOLZ ...................... 2ND DEFENDANT

RULING Date of Hearing - 5/3/2007 Date of Ruling - 6/3/2007 MASSATI, J. In a scheduling order made on 1 / 12 / 2005 the deadline for the finalization of this case was fixed for 13/5/2006. On 15/2/2006 a final pretrial conference was held and issues were framed. Trial was to commence on 24/2/2006. · On 24/2/2006 the parties appeared but Mr. Bwana informed the court that his principal witness was admitted at the Agakhan Hospital, and his other witness was appearing in the Court of Appeal. So the matter was adjourned to 24/3/2006. On that day Mr. Bwana asked for another adjournment because his witness had to be taken to England 2 for further treatment. Mr. Ishengoma, Counsel for the Defendants had no objection. So by consent, hearing was adjourned to 4/5/2006. On the subsequent dates i.e. 4/5/2006 and 4/10/2006, the case could not take off for the same reasons, save on 16/8/2006 when I was away in Arusha. I t must be noted here that by 16/8/2006, the deadline had already passed. It was therefore incumbent upon the Plaintiff's Counsel to have applied for departure from the scheduling order. "11 On 16/11/2006 a date fixed for hearing of the case, Mr. Ishengoma applied for leave to refer to an additional list of documents. Apart from objecting, Mr. Bwana also said he intended to file an additional list of documents himself. So that day was spent on arguing on the propriety of

what Counsel intended to do in the light of the scheduling order. At the end of the day I ordered the Counsel to regularize their pleadings. Accordingly Mr. Ishengoma filed an application for departure under O. VIII· A. rule 4 of the Civil Procedure Code Act, which was resisted by Mr. Bwana. In my ruling of 14/12/2006 I dismissed the application. On 21/12/2006, Mr. Ishengoma filed a notice of preliminary objection to the effect that the suit be dismissed because the Plaintiffs have failed to prosecute their case in accordance with the scheduling order. Mr. Ishengoma 3 submitted that the deadline for the finalization of the case having passed, the suit was incompetent and ought to be dismissed. He relied on my ruling in TANZANIA FERTILIZER CO LTD VS NATIONAL INSURANCE CORPORATION (T) LTD AND PRSC (Commercial Case No. 71 of 2004 and Civil Case No. 124/98 (ABSALOM L.S MSAKA VS PETER T. MASSAWE & NIC (both unreported). So he prayed that the suit be dismissed with costs. Mr. Bwana learned Counsel for the Plain tiffs resisted the objection. He submitted that by conduct of the court and the parties the scheduling order must have been departed by implication. He distinguished the ratio decidendi in MSAKA'S case. Finally he said that the consequences of non compliance to the scheduling order are spelt out in 0. VIII Ar. 5 and that the most that the court could do, was to award costs. So

he prayed for the dismissal of the preliminary objection with costs. Mr. Ishengoma, submitted 1n reply that the adjournments granted by the court were made under 0. XVII of the Civil Procedure Code but these were overridden by the provisions of 0. VIII A. Citing again my observations in TANZANIA FERTILIZER case, the learned Counsel submitted that although 0. VIII A rule 4 was directory, its compliance was to be strictly adhered to. He submitted that whatever . ' 4 good cause they might have had, it was incumbent upon the Plaintiffs to apply for departure. In any case, the learned Counsel went on, the records show that most of the adjournments were made at the instance of the Plaintiffs and, apart from the sick witness, no explanation was forthcoming as to the whereabouts of the other witnesses. He thus reiterated his prayers for the dismissal of the suit. As observed above, I am settled in my mind, that the scheduling order has been departed. All the proceedings after 4/5/2006 were made in breach of the scheduling order. It has been submitted by Mr. Bwana that since there was no objection to the prayers for adjournments and since the court readily granted them, the departure must be deemed to have been granted by implication. With respect I do not agree with that reasoning. I have two reasons for so disagreeing. First to apply for departure is a statutory requirement. It is now

trite law that there can be no estoppel to the provisions of a statute. So the conduct of the parties or court officials cannot override the clear provisions of a statute. But secondly, under 0. VIII A rule 4 of the Civil Procedure Code Act, 1966 it is the duty of the party to show to the court that such departure is necessary. "4. Where a scheduling conference order is made, no departure from or amendment of such order shall be 5 allowed unless the court is satisfied that such departure or amendments is necessary in the interests of justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment unless the court directs othenuise." In my view the message in rule 4 is very clear. The party who seeks a departure should always be on the look out to see that the orders he seeks are within the scheduling order. Since the scheduling order does not fetter the discretion of the court to grant adjournments generally an adjournment out or after the deadline is special and, this court has held times without number, that such an application must be made formally giving the reasons in an affidavit. There is, with respect, no such thing as departure by implication or departure by estoppel. It would be dangerous to have such a concept in the management of 0. VIII A of the Civil Procedure Code 1966 as that would defeat the whole

object of the amendments. So I firmly find and hold that the Plaintiffs case is out of the scheduling order. To that extent I agree with Mr. Ishengoma. The next issue is what is the fate or consequence of non compliance with the scheduling order. Mr. Ishengoma's view is that such suit becomes incompetent, hence dismissible. Mr. Bwana, has submitted that the most that the court could 6 do is to condemn the defaulting party to costs, under 0. VIII A rule 5. I think Mr. Bwana is right. Rule 5 reads: "5. When a party to a case the party's recognized agent or advocate fails without good cause to comply with a scheduling order or to appear at a conference held under subrule (1) of Rule 3 or is subsequently unprepared to participate in such conference, the court shall make such orders against the defaulting or unprepared party, agent or advocate as it deems fit including an order for costs, unless there are exceptional circumstances for not making such order." In TANZANIA HARBOURS AUTHORITY VS MATHEW MTALAKULE & OTHERS (CAT) Civil Appeal No. 46/99 (unreported) the High Court had entered a default judgment against a party who had not turned up for mediation. The Court of Appeal of Tanzania held that a default judgment was too harsh for the purposes of rule 5. The most that the trial court could do was to condemn the defaulting party to costs, and either adjourn the mediation process or

refer the matter to a full trial. In the present case we are of course, past mediation but I think, the reasoning of the Court of Appeal, 8 The preliminary objection is thus allowed in part. It is true that the scheduling order has been flouted but I would not dismiss the suit. I would give 7 days to the Plaintiffs in which to regularize it. The Defendants shall have their costs. It is so ordered. c··c?: 2"'S?--.~ ,_ _ S.A. MASSATI

JUDGE 6/3/2007 1,554 words ''. \ \