national bank of commerce vs juma motors transport ltd and 3 others 2020 tzhclandd 2254 23 july 2020

t ./ IN THE HIGH COURT OF TANZANIA (LAND DIVISION] AT DAR ES SALAAM MISC. LAND APPLICATION NO.612 OF 2019 NATIONAL BANK OF COMMERCE LIMITED APPLICANT VERSUS JUMA MOTORS TRANSPORT LIMITED 1^ RESPONDENT SOUD MOHAMED 2'^''RESPONDENT MOHAMED SOOD JUMA 3^^° RESPONDENT MOHAMED JUMA SOOD 4™ RESPONDENT (Application for review of ruling and order of this Court in Land Case No.02 of 2016) RULING MGETTA,J; Before me is an appllcatlon for review of part of the ruiing deiivered on 11/10/2019 by this court(Hon. Maiiaba, 3 as he then was) in Land Case No. where all respondents namely Juma Motors Transport Limited, Soud Mohamed, Mohamed Sood Juma and Mohamed Juma Sood were the plaintiffs; and, the National Bank of Commerce Limited, the Defendant (henceforth the applicant). Dissatisfied by that ruling, the applicant has moved this court by filing memorandum of review on 25/10/2019 under Order XLII (1)(a)&(b) and section 78(b) of the Civil Procedure 1 Code Act, 1966, (henceforth CAP.33) on the grounds that there is an error apparent on the face of the record: (a) that upon dismissing the suit under Order VIII Rule 29(a) of CAP.33 as amended, the Court did not decide on the fate of the respondents' (plaintiff's) Written Statement of Defence to applicant's (defendant's) Counter Claim; and, (b) that the Court did not order the applicant's Counter Claim to proceed exparte. Initially, along with filing written statement of defence to the plaint, the applicant also filed a counter claim; and, in turn the respondents filed written statement of defence to counter claim. Upon completion of pleadings and after first pre trial conference and scheduling order was done, the file was sent to mediation center for mediation process. Mediation process was not conducted due to non appearance of the plaintiffs personally. Then, the file was remitted to the trial court with an endorsement that it was not practicable to conduct scheduled mediation session because the plaintiffs did not attend. Upon receipt the file, the trial judge did on 11/10/2019 dismiss the suit by invoking the provisions of Order VllI rule 29 of CAP 33 as amended by GN. 381 of 2019. The dismissal order states and I quote as follows: "in the circumstances, this Court acts in terms of Order VIII rule 29(a) of the Civii Procedure Code and dismiss the suit with costs" In the circumstance of the case before this court, the above quoted order was no enough. The legal position Is that when a suit Is not mediated for non appearance of the plaintiff, the suit Is dismissed by the trial judge; likewise. If there Is a written statement of defence filed by the plaintiff to a counter claim, such written statement of defence Is struck out for similar reason of the plaintiff's (the defendant to counter claim) non appearance when the suit was called on for mediation process. In the same vein. If It happened that a defendant who filed a counter claim appeared for scheduled mediation session, but the plaintiffs defaulted appearance that lead to the dismissal of the suit and the written statement of defence to counter claim struck out, his surviving counter claim Is to be heard and determined exparte. All these is In line with the provision of Order VIII rule 29(a)of CAP 33 which provides and I quote that "29. 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 shaii remit the fiie to the trial judge or magistrate who may- (a)dismiss the suit, if the non complying party is a piaintiif, or strike out the defence, if the non complying party is a defendant; (b ) (c ) " In that suit despite the fact that their advocate appeared, the respondents defaulted appearance and the scheduled mediation session was not conducted, in law their appearance during mediation process is indispensable; and, when the court was dismissing their suit, it ought to go far by striking out their written statement of defence to counter claim in compliance with Order VIII rule 29 of CAP 33; and, then order the counter claim of the applicant who attended the scheduled mediation session to proceed exparte. But going through the record, it is clear that that was not done. Hence, I am satisfied that a material error manifests on 4 the face of the record in that inadvertently, the court omitted to go far and consider the fate of the written statement of defence to counter claim and also the fate of the counter claim itself. In the event, on the account of an error apparent on the face of the ruling delivered by this court, I do now exercise discretion power vested upon me and proceed to grant the prayers sought by the applicant in that the written statement of defence to counter claim is accordingly struck out for non appearance of the respondents (plaintiffs) during mediation session; and, that applicant's (defendant's) counter claim be heard and determined exparte. It is so ordered. J.S. MGETTA JUDGE 23/7/2020 COURT: This ruling is delivered today this 23"" July, 2020 in the absence of both parties after efforts to secure their presence has failed. Parties be notified of this decision by the Deputy Registrar in writing. C0U«7 J.S.MGETTA JUDGE y "i 23/7/2020 I* -k /C y.