BAKWATA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT THE DODOMA MISCELLANEOUS CIVIL APPLICATION NO.18 OF 2017 (Arising from Decree in Civil Case No. 6 of 2001 dated 30/10/2009) THE REGISTERED TRUSTEES OF BAKWATA.....................APPLICANT VERSUS THE REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIM ASSOCIATION.............. RESPONDENT RULING Last Order: 31th July, 2024 Date of Ruling: 9th August, 2024 The applicant had filed an application in this court praying that the court be pleased to require the respondent to show cause why the payment made to them in adjustment of and settlement of the decree in Civil Case No. 6 of 2001 should not be recorded and certified as full settlement and satisfaction of the said decree. The application ended barren as it was dismissed with costs. Unpleased the applicant appealed to the Court of Appeal. This time he was successful. His appeal was granted and the case file was remitted to this court with the following directive: I "We further direct that the matter be remitted back to the High Court for the determination of the Application including the preliminary objection should the respondent maintain it." Page 1 of 4 Upon the remission of case file, the parties were summoned and on 31st July 2024 they appeared before me. The applicant was represented by Mr. Elias Machibya, learned counsel and the respondent by Mr. Ally Nkangaa, learned counsel. Addressing the court, Mr. Nkangaa prayed that the respondent be given an opportunity to file a counter affidavit. The prayer was sternly objected by Mr. Machibya who argued that the leave should not be granted as the respondents were, on 2nd June 2017, granted leave to file a counter affidavit but they did not file it hence waived their right. If they are praying for an extension of time to file it they had to demonstrate a good cause but they have not. Thus, the prayer should not be granted. Rejoining, Mr. Nkangaa, prayed that the court be guided by its record and if, after the perusal of the record, it finds out that the respondent was indeed granted leave to file counter affidavit, the court be pleased to grant the leave in the broad interest of justice. I have carefully considered the submission by both counsels. It is a trite law that where a party is required to take a particular action within a particular time set under the law or as prescribed by a court order, he must abide to it and do the respective act within the prescribed time, else the respective order of the court and or the rules for time limitations would be rendered nugatory as stated in Ratnam v. Cumarasamy (1964) 3 Ail ER 933 where it was held that: "The rules of court must be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, Page 2 of 4 a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation." Thus, if as argued by Mr. Mchibya, the respondent were granted time to file the counter affidavit but they did not, a leave for filing the counter affidavit can not be granted unless they have demonstrated a good cause. I have perused the record to see what transpired about 7 years ago when the parties were before this court in 2017. In this endeavour I have observed that, the parties appeared before the presiding judge, on 25/5/2017 on which date Mr. Nkangaa was appearing for the Respondent and was also holding brief for Ms. Mbasha, counsel for the Applicant. The application was fixed for mention on 2/6/2027 with no subsequent orders. On 2/6/2017, the counsels for both parties were present. Ms. Mbasha addressed the court on the provision of Order XXI rule 21(2) of the Civil Procedure Code Cap 33 R.E 2019 as regards the powers of this court to cause the respondent to show cause orally or through an affidavit. In reply, Mr. Nkanga prayed for leave to file a notice of preliminary objection before filing an affidavit to show cause. Having heard both parties, the court ordered as follows: "Before the respondent is called to file an affidavit to show cause, he may file a preliminary objection, and serve it upon the applicant. Hearing of the preliminary objection on 9/6/2017." Page 3 of4 The notice of preliminary objection was filed and on 9/6/2017, it came for hearing as per the court order. On 16th June 2017, the preliminary objection was determined and the application was dismissed with costs. From this record, I am fortified that, the argument that the respondents were granted leave to file the counter affidavit but defaulted is lucidly misguided as it sharply contrasts with the record. In the foregoing, the objection by Mr. Machibya is overruled and leave is granted to the respondent to file his counter affidavit by 16th August 2024. DATED at DODOMA this 9th of August 2024 J. L. MASABO JUDGE Page 4 of 4