ATTORNEY GENERAL FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA CIVIL CASE NO. 29310 OF 2024 THE ATTORNEY GENERAL ………………………………………..……….. PLAINTIFF

VERSUS NAKARA HOTELS LIMITED …………………………………………… 1ST DEFENDANT

THE BOARD OF TRUSTEES OF NATIONAL SOCIAL SECURITY FUND …………………………………………….. 2ND DEFENDANT

RULING 10 & 10/4/2025 ROBERT, J:- This matter came up for mention on this day wherein learned counsel for the Plaintiff, Mr. Allen Mbuya, State Attorney, moved the Court for leave to withdraw the suit with liberty to refile under the provisions of Order XXIII Rule 1(2)(b) of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC), citing procedural irregularities discovered in the Plaintiff’s pleadings. In response, Mr. Rugemeleza Nshala, learned Advocate for the 1st Defendant, opposed the prayer and instead made an oral application under Order XLIII Rule 2 read together with Order V Rule 1(2) of the CPC seeking to strike out the suit with costs for failure by the Plaintiff to effect service of summons as directed by the Court on 24th March 2025. 1 Ms. Aisha Salehe Mohamed, learned State Attorney for the 2nd Defendant, raised no objection, noting that she was not formally summoned to appear in the matter. Records indicate that, on 24th March 2025, this Court issued an order directing the Plaintiff to effect service of summons upon the Defendants within seven days. On the date fixed for mention, i.e. 10th April, 2025, the Plaintiff appeared through Mr. Allen Mbuya, SA, and the 1st Defendant through Mr. Rugemeleza Nshala, Advocate. It was during this appearance that Mr. Mbuya informed the Court of the Plaintiff’s intention to withdraw the suit with leave to refile, citing

irregularities in the pleadings. Mr. Nshala contested this course, arguing that the Plaintiff’s failure to comply with the Court’s directive to effect service was fatal and justified striking out the suit under Order V Rule 1(2) of the CPC. In support of his prayer, Mr. Nshala relied on the authority In the Matter of an Application for Revocation of Letters of Administration by Salum Peter Kisumo, Misc. Land Application No. 441 of 2018, at page 4, wherein, he argued, the Court emphasized the imperative nature of compliance with court orders. He placed further reliance on the decision of the Court of Appeal in Karori Chogoro v. Waitihache Merengo, Civil Appeal No. 164 of 2018, at page 7, which underscores the necessity of compliance with court directives. 2 Additionally, he cited Masudi Shabani Hamis v. Winfrida Shadrack Kahena & 2 Others, Land Case No. 10 of 2023, where the Court, in no uncertain terms, stated that failure to effect service mandates the striking out of the suit, the operative word being “shall.” In the circumstances, Mr. Nshalla prayed that the suit be struck out for non- compliance with a lawful court order. Further, he prayed that this Honourable Court should caution the officials from the Office of the Attorney General for disobedience of the Court’s order In his rejoinder, Mr. Mbuya, emphasized that the Plaintiff’s prayer for withdrawal is premised on Order

XXIII Rule 1(2)(b) of the Civil Procedure Code and the withdrawal is necessitated by irregularities noted in the Plaintiff’s pleadings. He argued that, it is not disputed that there was an order for effecting service of summons issued on 24th March, 2025. However, the application now raised by the learned counsel for the 1st Defendant under Order XLIII Rule 2 and Order V Rule 2 of the Civil Procedure Code is misplaced. The latter provision merely sets out the procedural requirement for issuance of summons and does not address the legal consequences of failure to effect the same, particularly in light of a prior request for withdrawal. 3 He maintained that, the learned counsel has not demonstrated the legal effect of non-service of summons in circumstances where a party has nonetheless entered appearance. He noted that, it is a well-established practice that where a party appears before the Court, service is presumed to have been effected—hence the appearance. Since the 1st Defendant’s counsel has appeared in Court today, he humbly submitted that service ought to be presumed. Moreover, he pointed out that the prayer for striking out the suit was made subsequent to the Plaintiff’s initial application to withdraw with leave to refile. As such, it is rendered moot and overtaken by events. With regard to the authorities cited, he respectfully distinguished them as follows: The case

of Salum Peter Kisumo (supra) involved failure to file written submissions, not failure to effect service and is therefore inapplicable to the present circumstances. As for the case of Karoli Chogoro (supra) he argued that it is likewise misconceived. At page 7 of that decision, the issue before the Court was failure of parties to appear for hearing, not failure to effect service of summons. Similarly, in Masudi Shabani Hamis (supra), he argued that, the facts are materially distinguishable, as that matter did not involve a prayer for withdrawal. Accordingly, the cited decisions should not bind or influence this Court in the current context. 4 He emphasized that it is the Plaintiff’s right under the law to seek withdrawal of a suit with leave to refile, so long as sufficient grounds are adduced and the rights of the opposing party are not prejudiced. In this matter, he submitted that those conditions are duly met. Rejoining on the prayer to strike out the suit, Mr. Nshala clarified that his prayer is made under Order XLIII Rule 2 of the CPC read together with Order V Rule 1(2), although he mistakenly stated it as Rule 2. He maintained that, the correct citation, Order V Rule 1(2) of the CPC, deals directly with the consequences of failure to serve summons. In the present matter, the Plaintiff has not addressed this Honourable Court on the reasons for non-compliance with the

order to serve. He emphasized that, it is a cardinal principle of law that court orders must be obeyed. Failure to do so warrants consequences. The Court is called upon to determine a number of issues: One, Whether the Plaintiff’s prayer to withdraw the suit with leave to refile is maintainable under the law. Two, whether the Plaintiff’s failure to effect service within the time ordered by the Court justifies striking out the suit under Order V Rule 1(2) of the CPC. Three, whether the striking out application, made orally, supersedes or overrides the Plaintiff's prayer for withdrawal. With regards to withdrawal of suit with leave to refile, the governing provision is Order XXIII Rule 1(2)(b) of the Civil Procedure Code, which provides that the 5 Court may allow a Plaintiff to withdraw a suit with liberty to refile where there exist sufficient grounds. In the instant matter, the Plaintiff has cited irregularities in the pleadings as a reason for withdrawal. This is a recognized basis for invoking Rule 1(2)(b), particularly where such defects would otherwise render the suit unsustainable or procedurally defective. The right to withdraw a suit is primarily vested in the Plaintiff, and where sufficient grounds are shown and no prejudice is occasioned to the other parties, the Court is empowered to grant such leave. I note that the 2nd Defendant has not opposed the prayer and the

1st Defendant has not demonstrated any specific prejudice that would be occasioned by the withdrawal. On the effect of failure to effect service, Mr. Nshala has submitted that the Plaintiff failed to effect service within seven days as ordered by the Court, and therefore the suit should be struck out under Order V Rule 1(2) of the CPC. That provision reads: “Where a summons to file a written statement of defence has not been effected in consequence of the plaintiff’s failure to pay service fees or to effect service within the time provided under rule 10 of this Order, the court shall strike out the suit.” Indeed, the provision uses the word "shall", which ordinarily connotes a mandatory obligation. However, the application of such procedural sanctions must be interpreted in context. In the present case, the Plaintiff acknowledged the 6 failure to effect service and made a proactive application to withdraw the suit due to identified irregularities, thus bringing the matter before the Court on his own motion. Additionally, the appearance of the 1st Defendant on the date fixed is a relevant fact. While it is not conclusive proof of service, it mitigates the extent of non-compliance and underscores that no ambush or concealment was attempted by the Plaintiff. As to whether the application to strike out supersedes the prayer for withdrawal, it is an established principle of civil

procedure that a Plaintiff’s application to withdraw a suit takes precedence where made prior to any substantive application for dismissal or striking out, particularly where no prejudice is caused. In this case, the Plaintiff moved the Court first in time and stated the grounds for withdrawal. The application to strike out, made subsequently by the 1st Defendant, in effect seeks to defeat the Plaintiff's right to discontinue proceedings. The decision in Karoli Chogoro (supra) concerned a different factual matrix, as it involved disobedience of an order to appear for hearing. Likewise, Salum Peter Kisumo (supra) and Masudi Shabani Hamis (supra) dealt with different procedural circumstances and are distinguishable from the matter at hand. 7 Having carefully considered the arguments of both counsel, the relevant statutory provisions, and judicial authorities cited, the Court is satisfied that: The Plaintiff has demonstrated sufficient grounds for withdrawal of the suit under Order XXIII Rule 1(2)(b) of the CPC; the failure to effect service within the time directed does not, in the peculiar circumstances of this case, override the Plaintiff's right to withdraw the suit; the application to strike out the suit is overtaken by events and lacks merit in light of the Plaintiff’s prior and substantiated prayer. Consequently, the suit is hereby marked withdrawn under Order XXIII Rule 1(2)(b) of the Civil Procedure Code [Cap. 33 R.E. 2019], with liberty to refile. The application by the 1st Defendant to strike out the suit is hereby dismissed. No order as to costs. K.N. ROBERT

JUDGE 10/4/2025 8