LAND CASE NO

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION ORIGINAL JURISDICTION (MUSOMA SUB REGISTRY AT MUSOMA) LAND CASE No. 19 OF 2022 1. PENINA MHERE WANGWE 2. MARKO CHACHA GICHERE \ 3. HELENI DANIEL MATAIGA \ 4. EMMANUEL AUGUSTINO WANGWE 1 5. ALEXANDER CHACHA NYANKAIRA 6. NYANGIGE NYAMARUNGU MWITA j 7. JOHN MENYE MWITA 8. JASTINE MWITA KIMUNE 9. MATIKO BISENDO MARWA 10. DAUDI JUMA NYANKAIRA 11. ESTER DAUDI NYANKAIRA 12. MAKENGE DANIEL MAKENGE 13. MATONGO JUMA NYANKAIRA \ 14. KOROSO SASI RAGITA \ 15. ALLY MUYUI CHACHA \ 16. MATAIGA SAMMY DANIEL ........ PLAINTIFFS 17. ROBIN MOTENGI MARWA / 18. BHOKE PETER CHACHA / 19. AGNES PAULO CHACHA / 20. MWITA CHACHA MUYUNI / 21. OTAIGO CHACHA MHIRI 22. BEATRICE DANIEL BWANA 23. MARIA JUMA MASEYA 24. SIMON MSETI WANGWE 25. ROBI CHACHA MHIRI 26. MWITA CHACHA KEGOYE 27. DANIEL ELIYA MATIKO 28. PETER MNIKO MWERA 29. WINFRIDA SAMWEL MOTENGI / 30. SAMWEL MOTENGI MARWA / 31. NICODEMAS KITUNKA JOHN / 32. GEORGE NYAMOHONO NYAMONGf/ Versus NORTH MARA GOLD MINE LIMITED..................................... DEFENDANT RULING 31.07.2024 & 09.08.2024 Mtulya, J.: The scheduling order of the instant case had expired on 17th January 2024 and Dr. Chacha Murungu, appeared to this court on i 31st July 2024 praying for departure of the scheduling order so that he may register two (2) necessary prayers for interest of justice of the parties, viz. first, if the prayer for departure is granted, the plaintiffs intend to register oral application for amendment of the eleventh paragraph in the plaint in order to insert facts showing that this court has jurisdiction to entertain the case and species of currency; and second, if the prayer for departure is granted, the plaintiffs intend to register oral application for enlargement of time of the assigned speed track of the case. In moving the court and substantiating his prayers, Dr. Murungu had cited the authorities in Order XLIII Rule 2 and Order VIIIB Rule 23 of the Civil Procedure Code [ Cap. 33 R.E. 2019] (the Civil Code). However, the prayer was not welcomed by the defendant's learned counsel, Mr. Shiduki Lubango, for two (2) reasons, namely: first, the cited Order XLIII Rule 2 of the Civil Code has two (2) options in alternatives, namely: one, the amendment done by the court suo motovc two, by a memorandum of consent of the parties. According to Mr. Shiduki, the two options are not reflected on the record. The second protest registered by Mr. Shiduki, was coined that Dr. Murungu has registered the prayer without reasons of departure hence denying this court materials to decide on the matter. 2 In the opinion, of Mr. Shiduki the prayer for departure of scheduling order is hanging without reasons of departure, either expiry of the scheduling order or faults in the order. According to Mr. Shiduki, the reasons of departure are not only necessary for giving this court mandate to decide the matter, but also there is always time limitation in every issue brought to this court. In making his point appreciated, Mr. Shiduki submitted that the scheduling order was issued by this court on 17th March 2023 and had expired on 17th January 2024 hence Dr. Murungu was required to pray for the departure on or before 17th March 2024, after sixty (60) days of the expiry of the scheduling order, as per Item 21 Part III of the Schedule to the Law of Limitation Act [Cap. 89 R.E. 2019] (the Law of Limitation). According to Mr. Shiduki, after the expiry of the sixty (60) days, from 17th January 2024, Dr. Murungu was supposed to apply for enlargement of time for amendment of the scheduling order and produce relevant materials as where he was since then. Mr. Shiduki discoursed further that Dr. Murungu was supposed to invite and invoke section 14 (1) of the Law of Limitation for enlargement of time for amendment of scheduling order and later apply for departure of the scheduling order. However, according to Mr. Shiduki, Dr. Murungu went the other way around by starting 3 praying the second prayer on departure of the scheduling order instead of enlargement of time for amendment of the scheduling order. Regarding the appropriate available remedies, Mr. Shiduki had prayed for dismissal of the prayer and struck out of the case for want of the indicated laws and precedents in Tarimba Abbas v. The Gurdian Limited, Civil Case No. 206 of 2011 and Jared Nyakila & Another v. Shamti Shah & Three Others, Commercial Case No. 40 of 2008. In replying the submission and cited authorities, Dr. Murungu contended that if this court finds the prayer was registered out of time, it may, suo moto, enlarge time period for want of amendment of the scheduling order and interest of justice of the parties. In substantiating his submission, Dr. Murungu cited the authorities enacted under sections 93 & 95 and Order VIIID Rule 41 (c) of the Civil Code and practice of the Court of Appeal in National Bureau of Statistics v. National Bank of Commerce & Another, Civil Appeal No. 113 of 2018 and Airtel Tanzania Limited v. Ose Power Solutions Limited, Civil Appeal No. 206 of 2017. In the opinion of Dr. Murungu, in the present case, there is no party to blame and an order for the departure of scheduling order is always intended to facilitate proceedings in cases and that cases cannot be struck out or dismissed for want of delay in praying for 4 departure of scheduling order. According to Dr. Murungu, the life span of the case had expired on 17th January 2024, when the court was in vacation and there were disputes and several orders of the court which ended on 29th February 2024, and the last order of the court in the case was issued in March 2024. In his opinion, the orders necessitated expiry of the time span set by the court hence neither party in the case is to be blamed. In ending his submission, Dr. Murungu maintained that this court, suo mote, may enlarge time period for amendment of scheduling order at any time of proceedings, either before or after expiry of time span set for the case under sections 93 & 95 and Order VIIID Rule 41 (c) of the Civil Code and precedents in Exim Bank (Tanzania) Limited v. Abeed M. Manji, Civil Application No. 577/08 of 2020, Abdul Ibrahim v. Ayubu Mwalemba, Civil Application No. 642/06 of 2021, and Dimension Data Solution Limited v. WIA Group Limited, Civil Application No. 218 of 2016. Regarding application of section 14 (1) of the Law of Limitation, Dr Murungu submitted that under the circumstance of the present case, it was the court which had issued a scheduling order and the same has powers, suo mote, to amend the same under section 93 of the Civil Code. 5 In a brief rejoinder, Mr. Shiduki contended that Dr. Murungu in replying the points of protest has abandoned his initial prayer on departure of the scheduling order and introduced another prayer of enlargement of the life span or speed track of the case. According to Mr. Shiduki, the newly introduced prayer may be disregarded as it s contrary to the law and practice regulating determination of points of law. However, in the opinion of Mr. Shiduki, if this court considers the prayer has merit, he has materials to register in replying the second prayer in order to assist this court in arriving at justice. In doing so, Mr. Shiduki submitted that the cited cases of Dr. Murungu in National Bureau of Statistics v. National Bank of Commerce & Another (supra) and Airtel Tanzania Limited v. Ose Power Solutions Limited, (supra) on enlargement of time to amend life span of the case are correct, but brought in a wrong footing in a prayer of amendment of the scheduling order. Regarding the precedents of the Court of Appeal in Exim Bank (Tanzania) Limited v. Abeed M. Manji (supra), Abdul Ibrahim v. Ayubu Mwalemba, (supra), and Dimension Data Solution Limited v. WIA Group Limited (supra), Mr. Shiduki contended that the cases interpreted Rule 10 of the Court of Appeal Rules, 1999 and in any case, they resolved disputes on enlargement of time, and not issues of departure of scheduling order. 6 On the application of Order VIIID Rule 41 (c) of the Civil Code, Mr. Shiduki contended that it regulates sub set of the scheduling order called life span of the case, and not scheduling order itself. According to Mr. Shiduki, to invite a prayer of enlargement of time of the life span of the case at the moment is wrong, as that is the second prayer of Dr. Murungu, after the first prayer has been granted, if so. Mr. Shiduki submitted further that sections 93 and 95 of the Civil Code are not enabling provisions as per decision of the Court of Appeal in Oysterbay Properties Ltd v. Kinondoni Municipal Council, Civil Revision No. 4 of 2011. In the opinion of Mr. Shiduki, Dr. Murungu has confused court's own motion and prayer emanated from learned counsels. According to him, the instant prayer on enlargement of time was not spotted by the court, but brought by the plaintiffs' counsel hence the rule cannot be applied. In ending his rejoinder, Mr. Shiduki contended that the complaints of Dr. Murungu on courts vacations and presence of several orders in delay of the case are unfounded as the Public Notice issued by the Judiciary of Tanzania, under Government Notice No. 307 of 1964, shows the vacations ended on 31st January 2024, and in any case the notice had a clause allowing cases of urgent nature to proceed according to the law. 7 I have gone through the record, the prayer registered by Dr. Murungu, the two (2) protests lodged by Mr. Shiduki and submissions of the parties in favor and against the protests. It is vivid from the record that Mr. Shiduki was complaining on application of Order XLIII Rule 2 of the Civil Code and its two (2) available options in alternatives done by the court suo moto or memorandum of consent of the parties. Mr. Shiduki submitted that the two options are not reflected on the record and Dr, Murungu had declined to reply the points. In brief, he had conceded the submission of Mr. Shiduki. Similarly, Dr. Murungu had failed to register reasons for departure of the scheduling order to persuade this court to resolve the oral application in his favor. I am aware he registered a bunch of authorities in enactments and precedents regulating powers of this court and enlargement of time to amend life span of the case. However, as correctly indicated by Mr. Shiduki, that is shifting of a goal post, which cannot be cherished in this court. Dr. Murungu had registered the initial prayer on departure of the scheduling order and subsequent players of amendment of the eleventh paragraph in the plaint and enlargement of time of the assigned speed track of the case. Dr. Murungu cannot be allowed to shift the goal post during the reply of the points. 8 In my considered opinion, I think, the precedent regulating the current circumstances is displayed in the decision of Jared Nyakila & Another v. Shamti Shah & Three Others (supra), which Dr. Murungu had declined to reply or produce a distinct decision on the subject. In the indicated precedent, the scheduling order had expired and the defendants' learned counsel had brought to the attention of the court on procedural issue of expiry of the speed track. The plaintiffs' counsel thought that an oral application could be registered to amend the scheduling order, which the defendant's learned counsel had no problem. However, the defendants' learned counsel had a problem with the oral application, which was registered out of time without leave of the court on enlargement of time. His opinion, was that the oral application be dismissed and suit struck out for want of section 14 and Item 21 Part III of the Schedule to the Law of Limitation. Following the worries of the defendants' learned counsel and pressing of the plaintiffs' counsel to have the scheduling order in the case amended out of time without an order for enlargement of time, this court had ordered the parties to search and register bundles of materials for and against the circumstance. The named officers of the court went and did their work and had brought to this court necessary materials in the dispute to assist this court to resolve the 9 matter. This court, after perusing the materials, at pages 23, 24 and 25 of the Ruling thought that: ...the taw requires the application for enlargement of scheduling order to be made within sixty (60) days of the expiry of speed track and not at any time...the application has to be made within the limitation period prescribed by the law...much has this court has powers under sections 93 and 95 of the Civil Procedure Code to enlarge the speed track, [but] it is not legally permitted to make that order to grant that the application as it currently stands before this court because that application has been made after the limitation period had expired and without leave of this court extending the time for bringing the application...[therefore] the application for enlargement of speed track is hereby dismissed for reasons of time barred... the main suit is no longer maintainable. It is hereby struck out. Following the indicated previous thinking of this court, and since there are no necessary materials on record to persuade this court to depart from its own previous decision, it is obvious that the prayer of Dr. Murungu was registered without abiding with the law regulating time limitation and precedent in Jared Nyakila & Another 10 v. Shamti Shah & Three Others (supra), hence it must follow the appropriate remedies available in the precedent without any reservations. Having said so, I moved to dismiss the application of Dr. Murungu on departure of the scheduling order registered out of time without leave of this court and want of practice of this court in Jared Nyakila & Another v. Shamti Shah & Three Others (supra). I have considered the circumstances of the case and nature of the parties, and moved to order no costs. Each party shall bear its own costs. z^Ei^brdered. V/Q r\ f) . F.H. Mtulya Judge 09.08.2024 This Ruling was delivered in Chambers under the Seal of this court in the presence of Mr. Daud Mahemba, learned counsel for the plaintiffs and Mr. Shiduki Lubango, learned counsel for the defendant. PT?) r\ r\ Judge 09.08.2024 11