N

,_ . IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 62 OF 2015 THE VOi SISAL ESTATE LIMITED (Suing by its Attorney, Farida Kennedy) ••••••••••••••••••••••••••••• PLAINTIFF VERSUS THE PERMANENT SECRETARY, MINISTRY OF FINANCE AND PLANNING .............. 1 ST DEFENDANT THE MINISTER FOR FINANCE AND PLANNlNG ....... 2No DEFENDANT THE ATTORNEY GENERAL. .................................... 3R0 DEFENDANT RULING MASABO, J.: The ruling is in respect of an application for extension of the life span of the case made orally by Mr~ Rosam Mbambo, learned counsel for the Plaintiff. Mr. Mbwambo's application rests on the ground that the delay has not been occasioned by the plaintiff's negligence in prosecution of his case, rather it is due to the pursuit of amicable settlement which, disgracefully, ended with no fruition. In support of his application, Mr. Mbwambo citing the case of Nazira v MIC Tanzania Ltd, Civil Case Appeal No. 111 of 2015 Court of Appeal of Tanzania at Mwanza (unreported) where it was held that speed track is a tool designed to facilitate expeditious disposition of cases and it is upon the parties and the court to monitor it to ensure compliance. Hence every court should be familiar with case management and should assist the parties to comply by alerting them of the expiry of speed track so as to ensure that justice is done. Based on this authority he argued that in ,. the instant case the speed track expired when the parties were still in pursuit of amicable settlement. He also reasoned that, in addition to the pursuit of amicable settlement, delay was occasioned by reassignment of the case file to different judges. Lastly, he submitted that after expiry of the speed track the Plaintiff orally applies for extension of the same. On the Defendant's part, Ms. Angela Rushagara submitted that, following the amendment of the Order VIII effected by GN 381 of 2019, matters of expiry of speed truck are .now regulated by the new rules. Having made this observation she submitted that Rule 23 vests this court with discretion to extend the life span of the speed track but that discretion has to be judiciously exercised upon this court being satisfied that there is a good cause. Impliedly, there must be an application to move the court to exercise its discretion under Order 23 and this must be through an application made under Order 42 Rule 2 of the Civil Procedure Code [Cap 33 RE 2002] which provides that every application shall be made by way of chamber summons supported by an affidavit. And, since Order 23 is silent on the nature of the application, then, no_ application can be made orally and especially considering that at the time the oral application was made there was no case before this court as the life span of the suit had already expired. In support she cited the decision of the Court of Appeal in Mwanza City Engineering & Another v Anchor Traders [2016] 465 where the court held that anything that transpired in the court after the expiry of the speed track was null and void. She also cited the decision of this court in the case of Munawer m Pardan v Jubilee insurance Co. [TLR] 216 where Mruma -------~rheldthat whatever-tr-anspired after_the_~x_piry of speed truck was a nullity. - - --- - - - - - - - - - - - - -· - - - - - --·- - - - - - - She also, added that in this case the court considered the modality of application and held that the application for extension of speed truck ought to be in writing hence the oral application by the plaintiff if of no effect and should be dismissed under Rule 4l(a) of the CPC as amended by GN No of 2019. In rejoinder Mr. Mbambo argued that Rule 41(a) is wrongly cited because it applies only where the court is satisfied that the plaintiff is responsible for the . ?elay which is not the case in the instant application as it is vivid tha_t the delay was not occasioned by the plaintiff. Regarding the fact th,e modality of application he argued that is not the position of their law as the law is silent on this issue. In the alternative he reasoned that the decision cited in support of this point is the decision of this court to which this court .~ ,r.-' has liberty to depart. Finally, he submitted that, even if the court finds that it is the new rules which are applicable in the matter before it, the principles cited in their case of Nazira (supra) will still be applicable. I have carefully considered the submissions by the parties. Three issues await my determination. First, whether the ie: what is the law applicable in the instant matter? or put otherwise, does GN 381 of 2018 have a retrospective effect? . The second issue regards the modality of application for extension of speed truck ie. can the application be orally made or must it be in writing? And finally, is there a sufficient cause for extension of speed truck? On the first issue, I entire agree with the submission by Ms. Rushagara regarding the retrospectivity of the amendments made to the Civil Procedure Code by GN No. 381 of 2019 There is a plethora of authorities on the retrospective effect of new procedural laws and these include Benbros Motors Tanganyika Ltd v Ramanlal Haribhai Patel (1967) HCD 435; Municipality of Mombasa v Nyali Limited [1963] EA 371; Makogongo v Consigilio [2005] 1 EA 247; DPP v Jackson Sifael Mtares & 3 Others, Criminal Application No. 2 of 2018 (CAT); Rebecca Wegessa Isaack v Tahu Msaigana & Another, Civil Application No. 444/08 of 2017 (CAT) at Mwanza, and most recently, the case of Lala Wino v Karatu District Council, Civil Application No. 132/02/of 2018 (CAT) at Arusha (unreported). The principle discernible from these authorities is that new enactments on procedural law have retrospective effect and, unless the contrary is expressed, they apply to all actions whether commenced before or after the passing of the Act or where the claim on which an action is based accrued on an anterior date. Therefore, although this case was commenced five or six years prior to the promulgation of GN 381 No. 2019, the amendment brought by GN No. 381 are, retrospectively, applicable in determining the issue of speed truck. More so in this case where the oral application by Mr. Mbwambo was made on 11/7/2019 almost two months after the new rules were gazetted on 10/5/ 2019. Thus, even if I was to hold that the GN. -- -- 381/2019 does not have a retrospecthle effec:t, the position will remain - - - - similar as Mr. Mbwambo's could not have moved this court to apply a dead law. Regarding the modality of the application, as rightly argued by Ms. Rushagara, Order VIII Rule 23 is silent. Therefore, recourse has to be sought from Order XLIII which provides general directives as to the modalities of applications made to this court. Order XLIII Rule 2, provides that: "(2) Every application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit. .... " Iridisputably, this supports the argument by Ms. Rushagara that save where it is specifically provided otherwise, all application to this court, should be formally lodged by filling a chamber summons supported by an affidavit. Thus, impliedly, since Rule 23 which regulates application for extension of life span of the suit does not specify how the court the court should be moved, the application for departure ought to have been formally -lodged pursuant to Order XLIII rule 2. This rule is, however, a general rule and subject to exceptions contained in the proviso to this rule which states that: "Provided that the Court may where it considers fit to do so, entertain an application made orally or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the application is made." The proviso vest this court with full discretion to entertain an application made orally in any of the three scenarios namely; (i) where the court opines that it is in the interest of justice that the oral application be entertained; (ii) where all the parties to a suit have mutually consented, in writing, that the an oral application be entertained or (iii) where the circumstances under which the- application is made warrants the entertainment of an oral application. From the above provision, it is indisputable that the point raised by Ms. Rushagara is valid save for the exceptions stipulated under the proviso. Since the proviso does not confer a blanket discretion on this court, it is upon this court to determine whether or not the application before it suits any of the three criteria stipulated in the proviso. From the background of the suit as narrated earlier, the second criterion is, certainly, inapplicable because not only is the agreement missing but the defendant has vehemently contested the oral application. On the other hand, I find the pt and 3rd criteria relevant and having considered the events leading to this application as narrated earlier, I am of the strong view that, it is in the interest of justice that the oral application made by Mr. Mbambo on 11/7/2019 be entertained by this court. Having resolved these two issues, I now move to the merit of the application - -- - - -and -Iet me start by saying that there is plethora of High Court authorities on this matter. In addition to the cases cited by the counsels, the following cases are relevant:Tanzania Fertilizers Company Limited vrs. National Insurance Corporation of Tanzania Limited and PSRC, Commercial Case No. 71 of 2004 (unreported); Africa Medical Research Foundation Vs Stephen Emmanuel & others, Land Case No. 17 of 2011; Ayubu Lumuliko Ngulukia Vs National Microfinance Bank & Another, Miscellaneous Land Application NO.7 of 2014 (unreported); Soud Elict~a Rashid Vs National Microfinance Bank Ltd, Land Case No. 5 of 2012 (unreported); Tropical Commodities Limited Plaintiff vs Cashwenut Board Of Tanzania & The PSRC, Commercial Case No. 82 OF 2006; Bakari Yohana Vs Muhimu Awadh & 2 Others, Civil Appeal No. 123 of 2011 (unreported); Dal Forwarding (T) Ltd Vs National Insurance Corporation (T) Ltd. & Presidential Parastatal Sector Reform Commission, Commercial Case No. 70 of 2002, Mwanza City Engineer Vs Anchor Traders Ltd Civil Application No. 14 of 1995, Jared Nyakila & Another VsShanti Shah & 3 Others, Commercial Case No. 40 of 2008 and Covell Mathew Partnership Ltd. Vs Gautam Chavda, Civil Case No.3 of 2002 (unreported). The authority rendered in these cases was emphatically summarized by Mwambegele J (as he then was) in the case of Educational Books Publishers Ltd v Hasham Kassam & Sons Ltd& Issa Ltd Unionaire LTd & Bank M Tanzania Ltd, Commercial Case No.5 Of 2011 (also unreported) which I have found exceedingly insightful. In this case, his Lordship cited with approval the decision by Dr. Twaib, J. in Africa Medical Research Foundation Vs Stephen Emmanuel & others (supra) and · in Bakari Yohana Vs Muhimu Awadh & 2 Others, Civil Appeal No. 123 of 2011. For lack of better words to summarize what was stated by his Lordship without distorting the message and rhyme, I will reproduce his holding in extenso: "In the two cases, the court categorized three schools of thought on the subject. First, is the strict approach school which holds that once the speed track assigned to a case expires, the court lacks jurisdiction to entertain it and the suit must be struck out. The second school is the moderate approach which will extend the speed track assigned to a case if so, moved by a party within the limitation period in terms of item 21 of part III of the first schedule to the Law of Limitation. And the third one is a liberal approach school which places on the court a preliminary responsibility to order a departure from or amendment of a scheduling order. Under this school, the court may order departure from or amendment of the scheduling order suo motu, at any time, without limitation, and will not strike out the suit on grounds of expiry of a speed track. I am in agreement with the reasoning and conclusions reached. Most of the High Court decisions on this point fall on the second school of thought. As rightly put by His Lordship Dr. Twaib, J. this school is, again, divided into two sub-schools. The first one imposes the duty upon the plaintiff to apply for amendment of a scheduling order upon realising that the suit cannot be finalised within the allotted speed track while the second - -places_ tbat duty_ upon any benefitting party. Save for the commencement date of speed track in- ·respecf of - - speed track III ano speed track IV, I entirely share the reasoning in the AMREF and Bakari Yohana cases (supra) and wish to adopt them in this case. - The reason why the provisions of Order VIIIA and Order of the CPC were introduced into our legislation was not for an embellishment; they were introduced in the CPC with a view to expediting the hearing and determination of suits so that the goal to speedy administration of justice would be achieved. However, the speed intended to be achieved was not meant to offend the ends of natural justice. As rightly observed by Dr. Twaib, J. in the two cases, nothing can be gleaned from the provisions of Order VIIIA of the CPC as to empower the court to dismiss or strike out a suit in case of noncompliance with the provisions. I agree and the reasons are obvious; for allowing that course of action would be tantamount to defeating the purpose for which the very amendment intended to address. Having discussed numerous authorities on this subject from other jurisdictions he concluded that: "In view of the foregoing discussion, it i~ abundantly clear that the procedure enumerated un_der Order VIIIA of the Civil Procedure is only a handmaid and not the mistress,_ a lubricant, not a resi,stant in the administration of justice. In the premises, the plaintiff cannot be denied an opportunity of participating in the course of justice just because the speed track within which his case ought to have been finalised has expired." The liberal position adopted by his two Lordships (Dr. Twaib, J and Mwambegele, J (as he then was) has now been cemented by the decision of the Court of Appeal in Nazran (supra) where, the Court of Appeal while interpreting Order VIIIA rule 4 of the Civil Procedure Code which is basically in parimateria with the current Order VIII Rule 23; stated that: "We have taken sometime to closely look at the wording of Rule 4 of Order VIIIA of the CPC which on its opening phrase states that once a speed track has been set- "no departure from or amendment of such order shall be allowed" - but soon thereafter the same rule provides for relief when time overtakes the agreed speed track- "unless the court is satisfied that such departure of amendment is necessary in the interests of justice." We think that the words "in the interests of justice" under Rule 4 implies that the speed tracks identified under Rule 3 of Order VIII A of the CPC are not cast on iron. Interests of justice may justify extensions of speed tracks. · This interpretation, certainly applies to Order VIII Rule 23 whose content is similar to Order VIIIA Rule 4. Rule 23 provides that: '• "Where a scheduling conference order is made, no _ departure_ from. or amendment of such order shall be allowed unless t~e court is satisfied that such departure or amendr:nent is necessary ii') ~he interests of justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment, unless the court directs otherwise." The common law system applicable in our courts is built on the principle of precedent under which the decisions of the higher court have binding effect on lower courts. That, where there are differences between the decision of the lower court and that of the higher court, the decision of the later shall prevail. Now, since the decision of the Court of Appeal of Tanzania which i.s hierarchically at the apex of our court structure are binding on this court and since I am not aware of a recent decision of the Court of Appeal which controverted this decision, I find this to be the current position of the law. That, it is upon this court assess the circumstances of this suit and determine whether the departure would be in the interest of justice. Before I embark on this task, I will take liberty to point out the development brought by GN 381/2019 which in my opinion are of greater assistance to the court in determining applications for extension of the life span of suits. Unlike Order VIIIA, the new rules apportion responsibility to the parties. The decision of the court has, therefore to be guided by the role played by each part in the delay leading to the expiry of the speed truck prior to conclusion of the suit. © ... Order VIII Rule 41 provides that, "'- I ------~-~-,- -----r.---- - "41. Where the assigned speed track of a case runs its course before the conclusion of the suit, the court shall- (a) where the delay is caused by the plaintiff, dismiss the suit with costs; (b) where the delay is caused by the defendant- (i) strike out the defence or counter claim with costs; (ii) proceed ex parte if the plaintiff had not closed his case; or (iii) determine the suit on the basis of the adduced evidence, if the plaintiff had closed his case; and (c) where neither party is to blame for the delay, extend time not exceeding half the period of the assigned speed track." In the instant case, the records clearly demonstrate that both parties contributed to the delay, and more so the Defendant who kept on requesting for extension of time. The mutual contribution to the delay can also be deduced from the prayers for adjournment made the parties who were both enthusiastic for the amicable settlement which turned futile. Accordingly, I allow the application and extend the speed truck for 4 months with effect from the date of this ruling. ~ J.L.Masabo JUDG~ . .f ..•