SAJJAD SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 28785 OF 2024 SAJJAD SALEHBHAI DAWOOBHAI t/a SALEHBHAI GLASS INDUSTRIES ............................................... PLAINTIFF VERSUS MURTAZATAIYABALI HAKIMJEE............................................. 1st DEFENDANT KASSIM TAIYABALI HAKIMJEE................................................ 2nd DEFENDANT RULING 18/02/& 20/02/2025 N.E. MANDIA, J This ruling emanates from the counter claim filed by the Defendants/Plaintiffs against the Plaintiff/Defendant herein. The Defendants/Plaintiffs prays for an order of hearing of their counter claim ex parte against the Plaintiff/ Defendant as per Order VIII Rule 14(1) of the Civil Procedure Code [Cap. 33 R.E 2019] (the CPC), The brief background surrounding of this matter as obtain from the pleadings is that: the Plaintiff instituted a suit against the Defendants claiming that the defendants have erected a wall encroaching in 6.0 meters' access road situate between Plots Nos.99/1 and 99/3 Nyerere Road without involving and agreeing with the Plaintiff. That the Defendants' act of reducing the width of the access road to 4.7 meters at the corner and 5.0 meters' width on other i remaining part of the access road is costing the Plaintiff a loss amounting to TZS. 80,000,000. While the Defendants were filing their WSD, they raised three (3) points of preliminary objection and a counter claim. When this matter was called for necessary orders on 18th February, 2025 Mr. Carlos Cathbety, learned advocate appeared and represented the Plaintiff whereas the Defendants were represented by Mr. Pascal Kamala and Jerome Msemwa, learned advocates. The 2nd Defendant was also in appearance. The objections raised are: the plaintiff has no cause of action against the defendants being pleaded as limited liability company who is not registered owner of the property in dispute; that the suit is bad in law for misjoinder of the plaintiffs; and that one SAJJAD SALEBHAI DA WOODBHAI being pleaded as plaintiff and being a foreigner has no locus stand to institute this suit on a landed property registered under the Land Act, Cap 113(R.E 2019). During hearing of the objections, Mr. Carlos conceded to the 1st and 2nd objections. The court found merit on the objection and sustained them hence, the suit was struck out with costs. On hearing the counter claim Mr. Kamala submitted that they effected service to the Plaintiff/Defendant on 20/12/2024 and they were supposed to file their defence within 21 days which elapsed on 10/01/2025. That if at all the Plaintiff/Defendant wished to apply for extension of time they would have 2 another 21 days from 10/01/2025 which would have elapsed on 31/01/2025 as per Order VIII Rule 11(1) and (2) of the CPC. That until 18/ 02/2025 when this matter was called for necessary orders no defence to the counter claim has been filed and served upon the Defendants/Plaintiffs. He prayed for the Defendants/Plaintiffs to be allowed to proceed with ex parte hearing of the counter claim. In response, Mr. Carlos submitted that he was instructed by the Plaintiff/Defendant to handle the suit in February after the withdraw of instructions from the former advocates who were pursuing the matter. That by the time he was instructed the time limit for filing the defence to counter claim had already elapsed. That he had no opportunity to make his application for extension of time until when the matter was called today for necessary orders. He submitted that he has noted that there is a missing annexure to the counter claim and that is a reason which made them fail to file their defence. Also that his client is suffering from cancer and he was attending treatment hence, he also failed to file the said defence on time. Mr. Carlos submitted that for the interest of justice leave be granted to file defence to the counter claim and prayed that the matter should not proceed ex parte as under Order VIII Rule 14(3) of the CPC there is a room to challenge the ex pater judgment. He asked the court to apply the oxygen principle to avoid legal technicalities in order to meet justice. fcP 3 In rejoinder, Mr. Msemwa, submitted that it not true that there is change of advocates in this suit. That counsels who are handling this matter are Andrew Job Kannonyele, Mathew Bernad Kabunga and Carlos Cathbety. That the procedure for a counsel whose instruction has been withdrawn is to write a letter to inform the court something which was not done. He insisted that the former advocates are there and they have never written a letter in this court that their instruction have been withdrawn. That Mr. Carlos has no authority to inform this court that the instruction to his fellow advocate has been withdrawn. Mr. Msemwa submitted further that the former counsels should have come to seek leave to withdrawal from instruction given to them or Mr. Carlos should have brought a letter showing that the instruction has been withdrawn. That this cannot be a ground for denial of the sought order. Mr. Msemwa contended that Mr. Carlos was instructed in February while time to file defence to the counter claim had already elapsed. That the submission that there is a missing annexure is an afterthought. He contended further that the Plaintiff/Defendant should have filed their defence soon after being served with the counter claim in December, 2024. That Mr. Carlos did not mention which law allows him to object the order to proceed ex parte or the law which allow him to file defence after expiry of 42 days. Mr. Msemwa submitted that oxygen principle cannot be invoked if there is a specific procedural law to that aspect. That the reason submitted by Mr. Carlos is unfounded and he 4 prayed for the grant of the order for ex parte hearing. Having carefully examined the rival oral submissions made by the counsels the vital question for determination is whether the Plaintiff/Defendant has advanced sufficient reason to deny the Defendant/Plaintiff an order for ex parte hearing. After perusing the records, I have realized that the Defendants/ Plaintiffs filed their defence to the plaint with a preliminary objection and a counter claim on 20/12/2024. The Plaintiff/Defendant was supposed to file her defence to counter claim within 21 days as provided for under Order VIII Rule 11(1) of the CPC. I am aware that the 21 days elapsed on 10/01/2025. Despite this fact the Plaintiff/Defendant had an opportunity to seek leave for an extension of time to file her defence as required under Order VIII Rule 1(3) of the CPC which she did not do. The reasons advanced by Mr. Carlos for such failure are such that there was a change of advocates; missing annexures; and that the Plaintiff/Defendant was sick and attending treatment. He implored the court to invoke the oxygen principle. It is my considered position that the reasons adduced by Mr. Carlos are baseless. It is the Plaintiff/Defendant duty to attend his case and hence, change of an advocate even if it happens, should not be a bar to prosecute a case. Meanwhile, no record has shown that the court was informed of the change of 5 '3^ the said advocate by the Plaintiff/Defendant or the counsels who were prosecuting the suit prior to Mr. Carlos. I am of the view that the Plaintiff/Defendant was negligent in pursuing her suit. On the issue of sickness of the Plaintiff/Defendant, no evidence was tendered to show that she was truly sick hence, this reason in my view remains unfounded. On the same note, the issue of missing annexures to the counter claim cannot bar the Plaintiff/Defendant from filing her defence on time. Coming to the oxygen principle or overriding objective, it is trite law that the principle cannot be applied blindly to the mandatory provision of procedural law which goes to the very foundation of the case. In the circumstance, if find the principle is inapplicable, {see Mondorosi Village Council & Others vs Tanzania Breweries Ltd & Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14 December 2018) and Njake Enterprises Ltd vs Blue Rock Ltd & Another (Civil Appeal 69 of 2017) [2018] TZCA 304 (3 December 2018) In the upshot, and without prejudice to my observation, i hereby grant the order for ex parte hearing of the counter claim against the Plaintiff/Defendant. It is so ordered N.E. MANDIA JUDGE 20/02/2025 6