20140527 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA LAND CASE NO 21 OF 2011 OLAIS LOTH ( SUING AS ADMINISTRATOR OF THE LATE LOTH KALAMA) •••••••••••••••••••••••••••••••••••• PLAINTIFF VERSUS MOSHONO VILLAGE COUNCIL ·••n••··••noaaann DEFENDANT Date of last order: 04/04/2014 Date of Ruling: 27/05/2014 RULING. MWAIMU,J. The plaintiff who is an administrator of the estate of the late I Loth Kalama sued the defendant. for a piece of land measuring ten acres. From the plaint, the said land was owned by the late Loth Kalama and was acquired by the Village Council for construction of a secondary school and the plaintiff was promised to be allocated another piece of land. At the time the plaintiff sued the defendant neither the secondary school was constructed .nor was Loth Kalama allocated another land. 1 ·. . •· ... --~,~-·-•-. ' . ~. ' ~". On the 15th day of October, 2013 Mr. Materu who is representing the plaintiff requested to amend the plaint with a view of changing the name of the defendant Moshono Village Council so as to slot in the name of Arusha City Council as the defendant as the former is no longer in existence. Mr. Kinabo who appeared for the Defendant did not oppose to the amendment requested and the Court granted the application. The Court ordered the plaintiff to amend the plaint by 29/10/2013 and the defendant to amend the written statement of defence by 12/11/2013. The matter was fixed for mention on the 10th day of December, 2013. The plaintiff complied with the Court order and filed the amended plaint on the 28th day of October, a day bef6re .. the expiration of the time allowed for the amendment. Mr. Emanuel Kinabo defaulted to file the amended written statement of defence. But the new defendant filed its defence on the 29th day of November, 2013. On the 15th day of December, 2013, both parties appeared before the District Registrar where the matter was fixed for another mention on 31/03/2014. But on that day in the absence of Mr. Kinabo, appeared Miss Lilian, solicitor, who represented the defendant following the ·amendment sought and made by the plaintiff. On_ that material date Mr. Materu informed the Court that he has lodged a . .., notice of preliminary objection which formed part and parcel of the .,, reply to the written statement of defence. The prelimin·ary objection is 2 to the effect that the written statement of defence is incompetent for being filed out of time prescribed by the law and without the leave of the Court and prayed for it to be argued first and the Court agreed. Mr. Ndimbo City Solicitor did not waste time as he conceded to the preliminary objection and prayed to the Court to allow the defendant to withdraw the written statement of defence seeking for leave to refile it without costs. Mr. Materu objected to the prayer and went on to submit on the merits of the preiiminary objection. Mr, Materu submitted that as the defendant was ordered to file its amended statement of defence by 12th November, 2013, by filing it on 29 th November, 2013, the written statement of defence is ·time barred. He argued that in terms of the proviso to Order VII Rule 1 (2) of the Civil Procedure Code an application for extension of time has to be made within twenty one days after the expiry period on which the defendant is required to file a written statement of defence. According to him, time for the defendant to seek for extension of time to file the amended written statement of defence has expired and therefore the application should be dismissed. He cited the case of Tanzania Harbours Authority versus Mohamed R. Mohamed [2003] TLR 76. Mr. Materu extended his submission by arguing that the application for extension of time sought ·by the defendant is_ intended to pre empting the preliminary objection. He based his argument on 3 the case of Mrs. Khantibhai M. Patel versus Dhahiyabhai Mistry [2003] TLR 437. He prayed the written statement of defence to be expunged from the Court record and the case to proceed in the absence of defence. Let me start with the second limb of the plaintiff's argument. Mr. Ndimbo conceded to the preliminary objection because in · the circumstances it is so obvious that the defendant could not file the amended written statement of defence in trme. But to salvage the situation Mr. I\Jdimbo for the defendant requested to withdraw the written statement of defence with leave to refile of cause upon following the relevant procedural law. I think the argument has no merit because the order of the Court was not for the defendant to file- written statement of defence but an amended one. In that case the provisions of Order VII Rule 1 (2) of the· Civil Procedure Code could not apply and therefore the application for extension of time was not in any way intended to pre empty the preliminary objection. , I now revert back to the first limb of the plaintiff's argument that the time for seeking for extension of time· to file an amended statement of defence has expired. Order VII Rule 1 (2) of the Civil Procedure Code provides: "1.(2) Where a summons to file a defence has been issued and the defendant wishes to defend the suit, he shall, w~TA.w'enty- ,.,. 4 ·, ·, ' • 4' one days of the date of service of the summons upon him present to the court a written statement of his defence: Provided that the Court may, within twenty-one days of expiration of the prescribed period, grant an extension of time for presentation of the written statement of defence on application by the defendant." I do agree with the learned counsel for the plaintiff that. in . accordance ,Nith the fore cited orovision the defendant has a room to seek for extension of time to file a written statement of defence within twenty one days of the time set for the lodging of the ·written statement· of defence. However,· the circumstance which the Court faced in Tanzania Harbours Authority case (supra) is distinguishable. In that case the Court dealt with a situation where the defendant failed to file a written statement of defence in time and the period of twenty one days for seeking for extension of time had expired. In the instant case two· points can be brought forward. Firstly, there is a defence in place which was filed by Moshono Village Council which was being ·represented by Mr. Emanuel Kinabo. Mr. Materu sought to effect an amendment to change the name of· the defendant from that of Moshono Village Council to Arusha City Council and no more. As the dates set by the court were for the mere amendment o.f the name of the defendQnt, it cannot be said that the defendant has never filed its defence. Failure to file a written 5 .. .,,,_ . .. . - ·lfJiiit-· . . . - .• ': .. ol._.. ... , ___ -· t . ~ . ·--- ~·.. .. ... . ' • statement of defence is not the same as failure to effect an amendment on time as an amendment does not negate the defence which is already in the court record. Section 93 of the Civil Procedure Code allows enlargement of time in certain cases. It provides: "93. Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." For the interest of justice although the time which was set for the defendant to file its amended written statement of defence amending the name of which brought it in the suit has expired, I allow the ··:. application for the withdrawal of the amended written statement of defence and extend time for the same to be filed within fourteen days from the date of the ruling. Costs should follow event. SGD: M. P. M. Mwaimu JUDGE 27/05/2014· Ih ~~~ffll be a true copy of the original. ICT REGISTRAR ARUSHA Cj /·17 ILf 6