MISC

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) Misc. LAND APPLICATION No. 96 OF 2023 {Arising from Land Case No. 21 of2022 [High Court-Musoma Sub-Registry]) 1. NATIONAL MICROFINANCE BANK PLC 2. NUTMEG AUCTIONEERS & PROPERTY APPLICANTS MANAGERS CO. LTD Versus 1. BWIRE NYAMWERO BWIRE 2. ROSE LAURENT MAGOTI 3. SMALL INDUSTRIES DEVELOPMENT ORGANISATION (SIDO) RESPONDENTS 4. THE ATTORNEY GENERAL 5. SUBIA GENERAL SUPPLIES &

TRIBUNAL BROKERS LIMITED 6. ANNA NICHOLAUS KYAMBA RULING IN TERMS OF ORDER VIII RULE 1 (3) & (14) (2) OF THE CIVIL PROCEDURE CODE [CAP. 33 R.E. 2022] 02.04.2024 & 04.04.2024 Mtulya, J.: An order was issued by this court on 10th October 2023 under the inherent mandate enacted in section 95 of the Civil Procedure Code [Cap. 33 R.E. 2022] (the Code) to fill a gap in the circumstances where Land Case No. 21 of 2022 (the case) was proceeding ex-parte as against the instant applicants and fifth respondent without express order on the record. This court then delivered express order for the case to proceed ex-parte as against i the applicants and fifth respondent. Following the express ex-parte order, the case was scheduled for Final Pre-Trial Conference on 2nd November 2023. However, the applicants were still interested to register Written Statements of Defence (WSD) hence on 1st November 2023, they approached this court and lodged Misc. Land Application No. 96 of 2023 (the application) praying for the court to set aside the ex-parte order against them issued on 10th October 2023 and enlargement of time to file WSD. The applicant's complaint is displayed at the fourth paragraph of the affidavit, in brief: summons and plaint were not served to any principal officer of the first applicant and the recipient shown in the summons to have been served is not known to the applicant. Owing to

the nature of the case and current thinking of this court on speed dispensation of justice, the parties were called for hearing of the application on the second day, 2nd November 2023. On this date, the first respondent protested the application and prayed for leave to register three (3) points of law to resist the application at preliminary stages. The first respondent was granted fourteen (14) days leave to enjoy the drafting and registering of the points, and complied with the court's order on 13th November 2023. 2 The points of protest show that they were drafted and filed by the first and second respondents, and display the following materials, in brief: first, the application contains two (2) distinct prayers regulated by two (2) distinct laws; second, the application for enlargement of time was filed without enabling provision; and finally, the application was brought out of time. The day before yesterday, 2nd April 2024, the application was scheduled for hearing and the first respondent registered his points which were supported by the second respondents. On the other hand, the third to the sixth respondent opted to remain silent as they support the application in favor of the right to be heard in the case. In brief, the first respondent, submitted that the application was brought with two distinct prayers of setting aside ex-parte order regulated by Order VIII Rule 14

(2) of the Code whereas enlargement of time to file WSD is regulated by Order VIII Rule 1 (3) of the Code. According to the first respondent that is the breach of the law and practice in thd precedent of Hamisi Mdida & Another v. The Registered Trustees of Islamic Foundation, Civil Application No. 33/11 of 2022. On the second point, the first respondent submitted that the applicants have lodged the application for enlargement of time without citing enabling provisions of the law. In his opinion, failure 3 to cite enabling provision renders the application incompetent before the court hence it must be struck out for want of the law which moves this court to resolve the application. In the final point of protest, the first respondent submitted that the application was filed out of seven (7) days' time as required by Order VIII Rule 1(3) of the Code. He submitted further that the Ruling on ex-parte hearing against the applicants was delivered on 10th October 2023 and the applicants had approached this court and lodged the instant application on 1st November 2023. According to the first respondent, the applicants have received summons in a more than four hundred (400) days since September 2022 and have declined appearance to defend their case. In the opinion of the first respondent, that is a violation of the established practice displayed in the decisions of Eliakimu Chacha Maswi

v, Mwita Mwikwabe Waitara & Two Others, Civil Case No. 23 of 2023 and Aloyce Mushi v. Kasinde Said Mzee, Civil Case No. 231 of 2022. Finally, the first respondent argued that the enactment of Order VIII Rule 1(3) of the Code does not let any room for the court to decide as it so wish, but to abide with seven (7) days rule. Responding on the issues, Mr. Davis K. Muzahula, learned counsel for the applicants, submitted that the first and second respondents are mixing issues related to the application and applicable laws in each particular stage of civil proceedings. 4 According to Mr. Muzahula, the instant application was preferred under Order VIII Rule 14 (2) of the Code, which regulates setting aside of ex-parte orders before a judgment is entered. In his opinion, under the indicated Rule, the applicant is only required to produce good reasons for enlargement of time to file defence. Mr. Muzahula submitted further that the enactment of Order VIII Rule 14 (2) of the Code, at the very end there is a proviso which reads that: upon such terms as the court may direct According to him, such words give discretionary mandate to this court to decide what it thinks right in the circumstances of each particular case. In his opinion, the words in the chamber summons showing enlargement of time had confused the first and second respondents, but were not related to any separate application

which invite separate laws. In Mr. Mzahula's position, Order VIII Rule 14 (2) of the Code covers all the issues of setting aside ex-parte order before judgment and enlargement of time to file WSD. Mr. Muzahula submitted further that Order VIII of the Code was enacted in such a way that it moves in stages and each stage has its own procedures from pleadings, hearing and decision making, and that even after the decision is delivered, applicants can still enjoy the right to set aside ex-parte judgment. In his view, the case has moved from pleading stages and currently is at Final 5 Pre-Trial Conference, hence Order VIII Rule 1 (3) of the Code is inapplicable. According to him, cases which interpreted Order VIII Rule 1 (3) of the Code are irrelevant at the present stage of the case and on the same level cases regulating two (2) separate applications are inapplicable in the present application. On the final point of protest, Mr. Muzahula submitted that the applicants are not out of time as the decision in the ex-parte ruling was issued on 10th October 2023 and the instant application was filed on 1st November 2023 to abide with the words of Order VIII Rule 14 (2) of the Code. According to him, the words in the indicated enactment provide for one (1) condition only, and that is before ex-parte judgment is entered. In his view, the main case is at the Final Pre-Trial Conference

without any hearing stages and at that stages it fits well with Order VIII Rule 14(2) of the Code. In a brief rejoinder, the first respondent submitted that the points of objection were raised from the prayers of the applicants as displayed in the chamber summons and that the cited Order VIII Rule 14 (2) of the Code has no provisions related to enlargement of time. In the opinion of the first respondent, issues related to time limitation to register WSD were enacted in Order VIII Rule 1(3) of the Code and not Order VIII Rule 14 (2) of the Code. Finally, the first respondent submitted that the applicants were served and declined to appear in the main case and this court had already 6 issued ex-parte ruling against them hence they cannot complain on proper service at this moment. In the present application, the record shows that before 10th October 2023, there was no express ex-parte order issued by this court in the case hence it was difficult for the applicants to cite and protest the order in a separate application from the case. The materials registered in the application by the parties are displaying that the parties are not in dispute on the issue. However, the parties are contesting on when the order is deemed to have been issued by the court. The question as to when the deemed order was issued, the present record is silent. Even if it is assumed the order is reflected in

the case, this court is discouraged by the law and practice to call and scrutinize other case files in resolving points of preliminary objection (see: Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors Ltd [1969] E.A. 696 and Salehe Rajabu Ukwaju v. Marwa Wambura Ogunya, Land Case No. 1 of 2022). Issues regulating setting aside of ex-parte decisions, I think, in my considered opinion, depend on stages upon which the proceedings reflect on the record of the main dispute. The issues are normally resolved when defendants or respondents are aware of the existence of cases and display of express ex-parte decision of the court. 7 In the present case, the materials produced during the hearing of the protests are silent on when the applicants were aware of the existence of the case or implied ex-parte order. According to the applicants' learned counsel, they learned existence of ex-parte ruling of this court in the case on 10th October 2023 and filed the present application on 1st November 2023, when the case was scheduled for Final Pre-Trial Conference. In his opinion, the applicable provision in such circumstances is Order VIII Rule 14 (2) of the Code, which has no time limitation, but: before ex-parte judgment was entered. The first respondent on the other hand thinks that time schedules are provided under Order VIII Rule 1(3) of the Code. The parties are not in

dispute that the case was at Final Pre- Trial Conference. Their contest is on specific Order and Rule of the Code which is applicable at the stage of Final Pre-Trial Conference. A reply to the contest will be resolved in the indicated Orders. I have glanced the provisions of the two complained enactments. Order VIII Rule 1 (3) of the Code provides that: The court may, on application by the defendant before the expiry of the period provided for filing a written statement of defence or within seven (7) days after expiry of that period and upon the defendant showing good cause for failure to file such written statement of 8 defence, extend time within which the defence has to be filed for another ten days and the ruling to that effect shall be delivered within 21 days. (Emphasis supplied) The Rule is plain and vivid that it regulates enlargement of time to file WSD within twenty-one (21) days as provided in Rule 1 of Order VIII or 7 days after expiry of the twenty-one (21) days. According to the Rule, the stated enlargement of time should not exceed ten (10) days and a ruling on the subject be delivered within twenty-one (21) days. However, in that scenario, summons should have been properly served in accordance to Order V of the Code. In the instant application, the applicants allege that there is no proof of proper summons and they are praying for scrutiny on the applicability

of Order V of the Code in the case. Regarding Order VIII Rule 14 (2) of the Code, the provision reads that: Where before ex-parte judgment has been entered pursuant to sub-rule (1) the court may, if the defendant assigns good cause, set aside the order to proceed ex parte, upon such terms as the court may direct as to costs or otherwise. (Emphasis supplied). 9 Reading the provision of this enactment, it is obvious that a defendant in a case who has received an ex-parte order, before ex- parte judgment has been issued, he may approach this court to seek for enlargement of time and other necessary orders. Reading the provisions of the two indicated Orders as a whole, it is vivid that they apply in different circumstances. Order VIII Rule 1 (3) of the Code applies when the case is fresh and at its initial stages and the defendant was properly served and aware of the suit, but had delayed in filing WSD. He may be granted leave as per provisions in Order VIII Rule 1(3) of the Code, but must produce relevant materials. In that situation, the indicated precedents in Hamisi Mdida & Another v. The Registered Trustees of Islamic Foundation (supra), Eliakimu Chacha Maswi v, Mwita Mwikwabe Waitara & Two Others (supra) and Aloyce Mushi v. Kasinde Said Mzee (supra) are relevant to the indicated initial stages of proceedings. Order VIII Rule 14 (2) of the Code, on the other hand,

gives discretionary powers to this court to resolve situations where initial stages have taken their courses, but before judgment is pronounced. I am aware that the first respondent had argued that Order VIII Rule 1 (3) of the Code does not give room to this court to decide as it so wish. He may be correct. However, I have indicated that the Order does not apply in the present io circumstances of the case. In any case, this court has huge mandate to make orders as it sees necessary for ends of justice (see: section 95 of the Code). The current trend on enactments of laws are in favor of speed substantive justice rather than legal technicalities which hinder right to be heard to litigants (see: enactments in article 107A (2) (b) & (e) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002]; sections 3(A) & 3(B) of the Code; section 45 of the Land Disputes Court Act [Cap. 216 R.E. 2019]); section 5 of the Appellate Jurisdiction Act [Cap 141 R.E 2019]; and section 10 of the Legal Sector (Misc. Amendment) Act, No. 11 of 2023). Similarly, current precedents derived from this court and Court of Appeal are in favor of speed trials without legal technicalities (see: Yakobo Magoiga Gichele v. Peninah Yusuph, Civil Appeal No. 55 of 2017; Gasper Peter v. Mtwara Urban Water Supply Authority (MTUWASA), Civil Appeal No. 35 of 2017; Mount Meru Flowers Tanzania Limited v. Box

Board Tanzania, Civil Appeal No. 260 of 2018; and Chenge Magwega Chenge v. Specioza Mochubi, Land Appeal No. 13 of 2022). According to the Court of Appeal, it is now a settled law that courts are encouraged to determine matters on merit, unless there are exceptional circumstances (see: Mount Meru Flowers Tanzania Limited v. Box Board Tanzania (supra). ii In the end, and having said so, I am moved by Order VIII Rule 14 (2) of the Code to overrule the three (3) points raised by the first and second respondents and order parties to appear for hearing in the application. I do so without costs as the first and second respondents were exercising their right to raise points of preliminary objection in the application. court in the presence of Mr. Kitiya Turoke, learned State Attorney for the second and third defendants, and holding brief of Mr. Davis K. Muzahula, learned counsel for the applicants and in the presence of Mr. Emmanuel Werema, learned counsel for the sixth respondent, and in the presence of the first and second, respondents, Mr. Bwire Nyamwero Bwire and Ms. Rose Laurent Magoti, respectively. Judge 04.04.2024 12