THE LIQUIDATOR PROSPERITY LIFE INSURANCE T LTD VS TARIME GOODWILL FOUNDATION MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA MISC. COMMERCIAL APPLICATION NO. 12 OF 2015 THE LIQUIDATOR, PROSPERITY LIFE INSURANCE TANZANIA LIMITED............................................. APPLICANT VERSUS TARIME GOODWILL FOUNDATION HEALTH SERVICES, HURUMA WATOTO.......................................................RESPONDENT RULING Mansoor, J: Date of Ruling- 05 OCTOBER 2015 1 The Applicant who is the defendant in Commercial Case No. 12 of 2012, filed an application for an order to declare that the Life Span of the plaintiffs case No. 11 of 2012, has expired , thus the suit be struck off the register with costs. The Application was filed under Rule 32 (2) of the High Court (Commercial Division) Procedure Rules, 2012, and Section 95 of the Civil Procedure Code, Cap 33 R: E 2002. The Counsel for the Plaintiff/Respondent took an objection on the point of law that the application is incompetent for wrong citation. The Counsel for the Respondent submitted that during the 1st PTC, i.e. on 7/02/2013 the case was assigned to Speed Track III, and this was done under the provisions of Order VIIIA of the Civil Procedure Code, and the Applicant should have moved the Court under Order VIIIA of the CPC and not the provisions of Rule 32 (2) of the Commercial Rules, as the Court did not use the Rules in fixing the Speed Track of the Case. 2 I shall overrule the preliminary objections for the following reasons; 1. At the time the 1st pre-trial scheduling conference was conducted i.e. on 7th February 2013, before Hon. Judge Bukuku , the Commercial Court Rules were already in use and thus enforceable. 2. Rule 32 (1) of the Commercial Rules clearly states that the provisions of Order VIIIA and Order VIIIB of the CPC shall not apply in determining speed track of commercial cases. The word used in that Rules is “shall”, making it a mandatory requirement. There is no way the Court could have decided to use the CPC, as there is an express provision in the Rules prohibiting the use of Order VIIIA and Order VIIIB of the CPC in the pre-trial scheduling conferences. 3. The fact that the Hon Judge did fix the speed track of the case to speed track III, which is 14 months from the date of the commencement of the suit, does not mean that she 3 fixed the speed track using Order VIIIA and VIIIB of the CPC, in fact in the proceedings she did not say that she was fixing the speed track or even conducting the 1st pre­ trial conference under the Civil Procedure Code; 4. The speed track so fixed is in conformity with the life span of the Commercial Cases provided in Rule 32 (2) of the Commercial Court Rules, and the time so provided in that Rule is the period of 10 months from the date of commencement, and not more than twelve months. 5. The use of the term “speed track” used by the judge instead of the word “Life Span” does not and will not mean that the Judge was using the CPC instead of the Rules, as even in Rule 32 (1), the word “speed track” was used to mean the lifespan or period of existence of the commercial cases in Commercial Court. For the above stated reasons, the preliminary objection raised by the Counsel for the Respondent in this application is ■F 4 overruled, and dismissed with costs, for being misconceived, and frivolous. Having dismissed the preliminary objection, I shall now determine the merit of the application to strike out the case for its life span has expired. The lifespan of the case has expired on 7th April 2014, 14 months from the date of the 1st pre-trial conference, if we take the life span to be from the date the 1st pre-trial conference was held and concluded. Again, the life span of the case expired on 2nd December 2012, if we count 12 months from the date the suit was instituted in court as provided by Rule 32 (2) of the High Court Commercial Rules. The suit was instituted on 3rd December 2011. The Plaintiff did not apply for its extension, this made the Applicant to this application to file an application for the suit to be struck off. The Applicant relied on the decision of the following cases of the High Court: The case decided by Hon. Judge Makaramba, the case of Jared Nyakila & Another vs Shant Shah & 3 others, 5 Commercial Case No. 40 of 2008 (unreported), where the Hon. Judge struck out the case for there was no application by the plaintiff to enlarge the speed track. The case of Triact East Africa Limited vs Anglo Gold Ashanti, Geita Gold Mine Limited and Dabenco Enterprises Limited, (unreported) where Hon Judge Nyangarika, struck out the suit for failure of the advocate of the plaintiff to apply for extension of the lifespan of the case. The case of Tanzania Ports Authority vs M/S Reza Company Limited, Civil Case No 374 of 1999, (unreported) where the Hon. Judge Mugasha had said that “the expiry of the scheduling order brings to halt jurisdiction of the court. That the court ceases to have jurisdiction over the case, and the available avenue to the court is to strike out the suit”. Hon. Justice Mugasha also said in this case that the amendment to the scheduling order must be applied for, and done before the previous * scheduling order expires, and not after, and the person seeking an extension of the scheduling order must do so, before the already fixed order has expired. • the case of FBME Bank Limited vs Lupembe Tea Estate Co. Limited & 2 Others, (unreported) where Hon. Lady Justice Mansoor J, said the following: “A failure to comply with any of the provisions o f Order VIIIA i.e. the Scheduling Conference Order or an amendment to scheduling order may result in sanctions being imposed by the Court pursuant to Order VIII Rule 4, and 5 o f the Civil Procedure Code including limitation and payment of costs.” Hon Lady Judge Mansoor continued to say at page 10 of the Ruling that: "The life span o f the case has been left to survive despite its expiry since 2013 with total disregard o f the provisions of Order VIIIA, the party who is to benefit for the extension, the plaintiff 7 herein did not apply for departure as early as possible as prescribed by the statutes o f limitations. No application has been made before the Court to extend the time for making the application for departure or to amend the scheduling order. The life span of this case has expired and the Court lacks jurisdiction to entertain it as there is no suit left on record. ” In response to the above submissions, the Counsel for the plaintiff submitted that the interpretation of Oder VIIIA of the CPC has been of great concern to the bench, bar and parties, and that the litigants, especially plaintiffs have been victims of the interpretation by the Court of Order VIIIA of the CPC. The Counsel submitted further that the cases cited by the Counsel for the Applicant/Defendant in his submissions i.e. the cases of Jared Nyakila by Hon. Makaramba J, the case of Tanzania Ports Authority by Hon. Mugasha J, and the case of FBME Bank, by Hon. Mansoor J,, among others have interpreted the provisions of Order VIIIA of the CPC to the detriment of the plaintiff. The Counsel referred me to the case of African 8 Medical and Research Foundation vs. Steven F Emmanuel & 3 others Land Case No. 17 of 2011 (unreported) by his Lordship F. Twaib J, “the AMREF Case”, where he said, Hon Judge Fauz Twaib took time to discuss the scope, interpretation and applicability of Order VIIIA of the CPC, and the High Court in that case was of the opinion that the court’s jurisdiction to entertain a case does not cease upon the expiry of the speed track, and that any of the parties to the suit can apply for extension of the speed track by way of departure from, or amendment of, the scheduling orders earlier made, and in the appropriate circumstances and where the interest of justice so requires the court may also suo moto extend the life span of a case. Hon. Judge Fauz also said in his judgement that it is not open to the Court, and the courts have no jurisdiction, to dismiss or strike out a suit merely on the ground that the speed track has expired and no application for its extension or rescheduling has been made. I’m aware that in the case of FBME Bank Limited vs Lupembe Tea Estates & Co. Limited & 2 Others I had made a decision 9 that since the the party who is to benefit for the extension, the plaintiff herein did not apply for departure as early as possible as prescribed by the statutes of limitations, the Court ceased to have jurisdiction over a matter whose life span has already expired, I’m also aware of the decision of AMREF CASE where His Lordship Judge F. Twaib made a decision that the Court Suo Moto can extend the life span of the case for the interest of justice and where appropriate circumstances requires so, and in the circumstances of this case, it is not a disputed fact that there has been established a sub registry of the High Court Commercial Division in Mwanza, and that there is no sitting judge in that Registry. The unavailability of a sitting judge in Mwanza sub Registry has made it very difficult for litigants to knock the doors of the court timely, since the judges do not sit but only visiting from time to time, and due to these reasons the plaintiff could not make an application timely for enlargement of the life span of the case. Also in this case, it is not clear as to when the life span of the case had expired since the Judge had fixed a speed track of 14 10 months from the date of the 1st Pre Trial conference was held, instead of conforming to the provisions of Rule 32 (2) of the Commercial Rules, which states that the Life span of the Commercial Case starts from the date when the case was instituted and the life span of the commercial cases do not begin on the date the First Pre Trial Conference was held and concluded. If the counting of the Life span would be interpreted as provided in Rule 32(2), then the life span of the case would have been expired on 02 December 2012, since the suit was instituted in Court on 03rd December 2011, and if we count 14 months from the date the scheduling order was fixed by the Judge on 7th February 2013, then the life span of the suit would have expired on April 2014. This, in my opinion, has made the plaintiff or rather the parties confused. The parties were unable to know when exactly the speed track of this case expired. In fact, even the Applicant to this application still maintains that the life span of this case expired in April 2014, i.e. 14 months from the date the speed track of the case was fixed. This confusion has made the plaintiff not able to apply for the amendment of the scheduling 11 order or extension of the life span of the case in time. Thus, as decided by Hon. Judge Fauz in the AMREF Case, the circumstances of this case, and justice requires that the court suo moto extends the life span of the case from where it ended. I note that since order VIIIA of the CPC is inapplicable in commercial cases, as discussed above, the laws applicable would be Rule 32(2) of the Commercial Rules, thus, the life span of this case had expired since December 2012, and even the pre-trial conference held on 7th February 2013, in which the speed track of the case was fixed, it was held when the case itself had ceased to exist. In the circumstances of this case, am forced to act suo moto for the interest of justice, and extend the life span of this case to 48 months from the date the lifespan of the case expired i.e. from 2nd December 2012. Again, I noted that the Applicant in his application has sought for striking out of Commercial Case No. 11 of 2012. I understand that this could be a typographical error as the case subject of the Application is Commercial Case No. 12 of 2012. The error of citing the wrong number of the case goes to have before me the records of Commercial Case No. 11 of 2012, and in fact, I am not even aware if Commercial Case No. 11 of 2012 exists in Mwanza Sub Registry or in the registries of the High Court Commercial Division, I have failed to make any decision regarding that case. This application could also have been struck out on the ground of that error apparent on the face of the application. Accordingly, despite the error pointed herein above in the Application, this application to strike out the suit, i.e. Commercial Case No. 12 of 2012 is hereby dismissed on the foregoing reasons. I shall order no costs. DATED at MWANZA this 05th day of OCTOBER, 2015 MANSOOR JUDGE 05 th OCTOBER 2015 13