20150417 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 166 OF 2013 UNITED BANK OF AFRICA (TANZANIA) LIMITED ......... o • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •, • • • • • • • • • • • • • • • • • • PLAINTIFF VERSUS PRISCA ANYANGO RAYA t/ a CHANGUGE ENTERPRISES ...................,..... DEFENDANT RULING Mansoor, J: Date of Hearing - 13 th ARPIL 2015 · Date of Ruling- 17 th APRIL 2015 The plaint was presented in Court on 25TH November 2013 . . 1 The life span or .Speed Track bf the Comercial . Cases are fixed and regulated by the High Court . (Commercial I Division) Procedure Rules, 2012, Section 32 of the Rules provides: f . ( 1) Except for circumstances . not . provided for under these Rules, the provisions of Order VIII A · and Order VlllB · of .the Code shall not apply 1n · determining speed track of 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 rthe application and the party in favour of whom the extension is made shall 2 t i bear the costs of such extension, ·unless· the Court directs otherwise. The Rules specifically provides that. Order VIIIA and B of the Civil Procedure code, Cap 33 R: ·E 2002 shall not apply in determining the Speed Track or Life Span of Commercial ' · Cases, and that the· Life Span of the Commercial Cases is 10 months from the date of commencement, so the speed track of 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 of 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 of the schedule or the speed track for good cause 3 ' 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 lifespaii of the case, i.e. 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 gr~t the applic~tion and the party in favour of whom the extension is made shall bear the costs of such extension, -qnless the Court directs otherwise. None of the parties in this c_ase had asked for a change of scheduled dates, and on 13:~ April 2015 Advocate Mabere . i Marando representing the Defe_ndant raised an objection that the . life span of 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 of 2011 (unreported) by his Lordship F. Twaib J, 4 '"the AMREF Case", Advocate Jkieth Maduhu, for the Plaintiff said that the Court is been givJn the powet under the above . cited case to extend· the life spj of the case S~o moto, without an application by ally party to tie suit, and for the interest of 1: justice. As rightly submit~ed by AdvoTte Mabere Marando for the Defendant, the case cited above, the AMREF case discussed II 1: 1, • 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, . i under the Rules, the date to i!allow the party to apply for .~ !I amendment or departure of th~ scheduling order is 30 days : . . . . I - . before the ·expiry of the Speed Track, a party may apply orally . . , . -. - ·_ I . - or; 'by' written application, and the Rules ·did not give the . -·· -I , , powers to this Cou'ft to extend :the Speed Track Suq Moto as contended by the Advocate for! the Plaintiff.- A party has to apply 1 8?f an application must ~e made within the ·prescribed time. i I I 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 (~) allows the Court .tci' make amendment or departure to the scheduling order fixed by the Rule·s upon good cause ~d for the interest of justice. None of 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 of time. This Court cannot hold a hearing to determine whether good caU:se 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 of 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 of Speed Track out of time. 6 The preliminary objection raised by the Counsel for the Def~ndnat is tenable. The lifespan of the suit has long expired ; .. '~ ' ' - i ' an~ th~r~ is n_o application by any party to this suit for its am,enc;lment • , ... , or extension. . - . ~ The Ilife span of the ~. case has been left .. to _survive de~pite its expiry - . since November 2014 with ' ' total . . disregard . of.the provisions of Commercial Rules, The life &pan of this case has expired and the Court lacks jurisdiction , • • a • . ~ ,. • to entertain . . .it .as ,.there is no suit left on record. ; ~ The case is therefore struck out ·for ft 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 17 th day of April, 2015 ' ; 1'•.,,. MANSO OR ., •JUDGE 17TH April 2015 7