mwananchi gold co ltd others vs reginald abraham mengi others 2010 tzhc 426 17 august 2010

TN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 131 OF 2006 MWANANCHI GOLD CO LTD ....... r...... 1°‘ PLAINTIFF I JOSEPH SINDE WARIOBA.............. 2nd PLAINTIFF __ YUSUPH MUSHI .. ........................ 3rd PLAINTIFF VULFRIDA GRACE M AHALU....... ........4th PLAINTIFF _ ----------- v. ------------------------------- REGINALD ABRAHAM MENGI ........ 1st DEFENDANT MBARAKA ISLAM ........................ 2nd DEFENDANT THE EDITOR THIS DAY NEWSPAPER... 3rdDEFENDANT THE EDITOR KULIKONI NEWSPAPER....4™ DEFENDANT MEDIA SOLUTIONS LIMITED ............. 5™ DEFENDANT Date of last Order : 28/5/2010 Date of Ruling : 17/8/2010

RULING Shangwa, J. On 11th September, 2006, Counsel for the plaintiffs I Adili Attorneys presented the plaintiffs’ plaint for filing. On 28th October, 2009, counsel for the defendants Nyange Ringia and Co; Advocates filed a Notice of Preliminary Objection on a point of law that the Scheduling Order having expired and the. plaintiffs having failed to apply for _its extension, this Court lacks jurisdiction to continue with the hearing of the suit, and that the suit ought to be struck out with costs. The issue which arises from the Preliminary Objection raised by Counsel for the defendants is whether or not the Scheduling Order made in Civil Case No. 131 of 20.06, having expired, this Court has jurisdiction to continue hearing that case and whether it ought to be struck out with costs. In support of their point of Preliminary objection, Counsel for the defendants submitted that on 25th April, 2007, the Scheduling Order of the suit’s speed track was varied from speed track two which was fixed on 6th November, 200-6 to speed track three and that speed track three expired on 10th November, 2007. They contended that after the expiration of the said speed track, the plaintiffs were supposed to apply for departure from the Scheduling Order of the said speed track by way of Chamber Summons supported by affidavit subject to the Law of Limitation. They further contended that as the period

of limitation within which an application for departure from the Scheduling Order is not provided for under the Civil Procedure Code, item 21 of Part 111 of the Schedule to the Law of Limitation Act is applicable. The said item provides for sixty days. It was quoted by Counsel for the defendants to read as follows:- Applications under the Civil Procedure Code, the Magistrates' —Courts. Act or other written Law fo r which no period o f limitation is provided in this Act or any other written Law are sixty days. ” Furthermore, Counsel for the defendants contended that as no application for departure from speed track three was made within the aforesaid limitation period, and as no application for extension of time to apply for departure from speed track three was made, the suit should be struck out. In support of their contention, they cited Land Case No. 57 of 2006 Albert Kirenje and 2 others V. Multi Agricultural Ltd, Commissioner for Lands and Hon Attorney General (unreported). In their reply submissions, Counsel for the plaintiffs did not dispute the fact that the speed track of the suit between the parties has already-expired, and that no application for extension of time has been made. They submitted that the plaintiffs cannot be blamed for the delay in concluding the case within the speed track period which was fixed for it. They said that the-caus^ of the delay

in finalizing the suit was due to lack of assessors who have to sit with the judge in hearing it as required by law. They contended that as no blame for the delay can be associated to any of the parties, the Court should determine the situation judiciously and amend the Scheduling Order as provided for in Rule 4 of O. VIII A of the Civil Procedure Code 1966. In support of their contention, they cited the case of Mrs. Asha Ramadhani Laseko V. Ramadhani Ali Laseko & Another Civil Case No. 40 of 1996 High Court Arusha (unreported). The said case had been assigned by the judge to speed track four on 18/5/1998 and the^case was to be concluded by 23/7/1998. On 7th September, 1998, counsel for the 1st defendant Mr. Maro filed a notice of preliminary objection - to the hearing of the case in whichTie contended that as —the period within which—the -case 4iad to be heard and determined as per speed track four had elapsed, it should be struck out with costs. In his ruling, Mrosso, J. as he then was considered the issue before him as to what should happen to a case which has exhausted the slowest available speed track? i.e. speed track four. Counsel for the 1st defendant, Mr. Maro said that the case abates. However, Mrosso, J. did not agree with him. In analyzing the issue, he pointed out that non observance of the speed track can be occasioned by a party to a case or by the court itself,

sometimes for unavoidable reasons. He gave an example where a case lasts beyond the assigned speed track because the x;ourt itself could not finalize it in time and asked himself a question as to why should the plaintiff as a result be deprived of a decision of the court for no fault of his own? Mros^o, J. went on to say and I quote:- that O VIII A o f the Civil Procedure Code, 1966 as amended by GN No. 422 o f 1994 was intended to improve the quality o f Civil Justice by making it speedier, not to provide occasion fo r depriving justice to parties without any fault attributable to them. ” Thereafter, he overruled the Preliminary Objection raised by Counsel for the 1st defendant. Counsel for the plaintiffs in this case found a lot of support to their case from the decision of Mrosso, J. in the case of Mrs. Asha Ramadhani Laseko V. Ramadhani Ali Laseko and Another already cited and said that in the circumstances of this case, it is not fair to penalize the plaintiffs by striking out their suit as suggested by the defendants. It is their humble prayer that the defendants' Preliminary Objection be overruled by this court, and that the Scheduling Order be amended in accordance with the provisions of 0. VIII A r. 4 of the Civil Procedure Code as amended by GN No. 422 of 1994. Whereas I agree with Counsel for the defendants that on 6th November, 2006 the suit between the parties

was fixed at speed track two, I do not agree with them that on 25/4/2007 the Plaintiffs applied for a departure from speed traek- two to speed track three. The record shows_ that on the said date, the court framed the issues to be determined by the court. These issues are as follows:- 1. Whether the words published by the defendants were defamatory or not 2. What reliefs are the parties entitled to. After framing the issues, the court ordered that hearing of the suit should start on 21/6/2007 and the assessors to be notified. As no departure from speed track three has ever been applied for and granted by this court, the fact remains that the suit was scheduledto be completed within a period of twelve months from commencement of the case as per speed track two which is provided for under O. VIII A r. 3 (b) of the' Civil Procedure Code as amended by GN No. 422 of 1994. The said speed tack expired a long time ago and the last period of speed tracks which is twenty four months from the date of commencement of the suit also expired a long time ago. The record further shows that from 25th April, 2007 when issues were framed and when the case was for the first time set for hearing to 28th October, 2009 when Nyange, Ringia and Co; Advocates filed a notice of Preliminary Objection against the hearing of the suit beyond the speed track which had been fixed by the court, the assessors

have never appeared to enable the court to start hearing the case between the parties. It appears to me that the plaintiffs were ready for hearing but hearing of their case could not take off due to - lack of assessors who had to be notified by the court about the dates set for its hearing. It appears also that on several occasions, the court made orders requiring the assessors to appear and assist the court but for one reason or another —those assessors did not appear. This means that the— plaintiffs cannot be blamed. Therefore, striking out their suit for no fault on their part would be quite unfair and unreasonable. In fact, I fully agree with the observation of Mrosso, J. as he then was which he made in the case of Mrs. Asha Ramadhani Laseko V. Ramadhani Ali Laseko & Another already cit^d that O. VIII A of the Civil Procedure Code as amended b\f GN 422 of 1994 was intended to improve the quality of (pivil justice by making it speedier, but not to provide occasion for depriving justice to parties without any fault attributable to them. I hold therefore that this court has jurisdiction to hear the suit between the parties and determine it notwithstanding the fact that its speed track expired a long time ago. In the interest of justice, I order that the parties and or their Advocates should appear before court on 10th October, 2010 for fixing a fresh period within which

the suit will be heard and determined. As far as I know, unless the ends of justice so require, in defamation cases such as this one, it is no longer necessary to sit with assessors following the amendment in S. 57 of the Newspapers Act, Cap 229. See S. 16 of the Written Laws (Miscellaneous Amendments) (No. 2) 2010. Therefore, I think that the fresh period within which the suit between the parties will be heard and determined will no longer be affected by non availability of assessors. Finally^ I jDverrule the Preliminary Objection raised by counsel fo r 1the defendants but I order "’that each party i should bear its own costs. V -f A. F. Shangwa

JUDGE 17/9/2010 Delivered today 17th day of September, 2010 in the presence of Mr. Ngomgolwa, Advocate and Mr. Ringia for the defendants. A.F. Shangwa

JUDGE 17/9/2010