UNITED BANK OF AFRICA T LTD VS PRISCA ANYANGO RAYA COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 166 OF 2013 UNITED BANK OF AFRICA (TANZANIA) LIMITED........................................................... PLAINTIFF VERSUS PRISCA ANYANGO RAYA t/a CHANGUGE ENTERPRISES.......................DEFENDANT RULING Mansoor, J: Date of Hearing - 13th ARPIL 2015 Date of Ruling- 17th APRIL 2015 The plaint was presented in Court on 25™ November 2013. 1 The life span or Speed Track o f the Comercial Cases are fixed and regulated by the High Court (Commercial Division) Procedure Rules, 2012, Section 32 of the Rules provides: ( 1) Except for circumstances not provided for under these Rules, the provisions o f Order VIII A and Order VII1B of the Code shall not apply in determining speed track o f commercial cases. (2) All commercial cases shall proceed and be determined within a period of ten months from the date of commencement, and not more than twelve months. (3) Thirty days before the expiry of the time prescribed under sub rule (2), any party to the proceedings may orally apply to the Court for extension of life span of the case, and the Court may upon sufficient reasons adduced grant the application and the party in favour of whom the extension is made shall bear the costs 2 of such extension, unless the Court directs otherwise. The Rules specifically provides that Order VIIIA and B o f the Civil Procedure code, Cap 33 R: E 2002 shall not apply in determining the Speed Track or Life Span o f Commercial Cases, and that the Life Span o f the Commercial Cases is 10 months from the date of commencement, so the speed track o f a commercial case starts to run on the date the plaint is presented for filing in Court, and not more than 12 months from the commencement of the case i.e. at the institution o f the plaint. Thus the Speed Track so fixed by the Rules in this case have expired since 25 th September 2014 if we take the minimum of 10 months and on 25 th November 2014, if we take the maximum of 12 months. In either case we take it, the Speed Track has already expired since long ago, and as it is now, there exists no case before me. However the Rules, under Rule 32(3) provides for the modification o f the schedule or the speed track for good cause and with the judge's consent and upon an application by a party to the proceedings. The Rules did not give discretion to the Court to extend the Speed Track suo moto. The Rules, even gave the time within which a party may apply for extension or modification of a lifespan of the case, i.e. Thirty days before the expiry o f the time prescribed under sub rule (2), any party to the proceedings may orally apply to the Court for extension of life span of the case, and the Court may upon sufficient reasons adduced grant the application and the party in favour of whom the extension is made shall bear the costs o f such extension, unless the Court directs otherwise. None of the parties in this case had asked for a change of scheduled dates, and on 13th April 2015 Advocate Mabere Marando representing the Defendant raised an objection that the life span o f the case has expired and the Court lacks jurisdiction to entertain a suit whose life span has expired. Relying on the case of African Medical and Research Foundation vs. Steven F Emmanuel & 3 others Land Case No. 17 o f 2011 (unreported) by his Lordship F. Twaib J, “the 4 AMREF Case”, Advocate Janeth Maduhu, for the Plaintiff said that the Court is been given the power under the above cited case to extend the life span of the case suo moto, without an application by any party to the suit, and for the interest of justice. As rightly submitted by Advocate Mabere Marando for the Defendant, the case cited above, the AMREF case discussed the provisions of Order VIIIA and B of the Civil Procedure Code, and those provisions are not applicable in Commercial Cases as provided in Rule 32 (1) cited herein above. Thus, under the Rules, the date to allow the party to apply for amendment or departure of the scheduling order is 30 days before the expiry of the Speed Track, a party may apply orally or by written application, and the Rules did not give the powers to this Court to extend the Speed Track Suo Moto as contended by the Advocate for the Plaintiff. A party has to apply, and an application must be made within the prescribed time. 5 The time for seeking for an extension of Speed Track or Life span of the Case had already lapsed since 25 th August 2014 or 25 th October 2014. Rule 32 (3) allows the Court to make amendment or departure to the scheduling order fixed by the Rules upon good cause and for the interest o f justice. None o f the parties to this suit has presented either written or oral application asking for amendment or departure of the scheduling order or to make such a payer out o f time. This Court cannot hold a hearing to determine whether good cause and /or excusable neglect existed to extend the schedule and therefore revive the case as there is no such an application before it. Since the Speed Track had expired since six months ago, the Court’s jurisdiction to entertain the case expired,, the Court is not moved to grant the amendment o f the speed track, and even if it was moved the time for doing so had long expired and there is no leave of the Court granted allowing the plaintiff to apply for amendment or extension o f Speed Track out o f time. 6 The preliminary objection raised by the Counsel for the Defendnat is tenable. The lifespan of the suit has long expired and there is no application by any party to this suit for its amendment or extension. The life span of the case has been left to survive despite its expiry since November 2014 with total disregard of the provisions of Commercial Rules, The life span of this case has expired and the Court lacks jurisdiction to entertain it as there is no suit left on record. The case is therefore struck out for it has crossed its speed track earlier set, and no application for its extension or re-scheduling has been made. I also order costs to the defendant. DATED at DAR ES SALAAM this 17th day of April, 2015 MANSOOR JUDGE 17t h April 2015 J 7