Kessy & Another vs Ngomani (Civil Case 335 of 1999) [2000] TZHC 8 (2 June 2000)

, ",',:~ IN Till.: HIGH COlPI: OJ: 'I'.1\NZlllIA· ) OO(lC02.t'OO,'I/.ClOt:O •.• ~ ) On 7th September 1999 the plaintiffs Joseph Donat Kessy and Nemesi Joseph Donati filed in thip Court Civil Case No.'5/99 agairlBt JUMA HfGEMBE NGOHlJUf'NDTHECHAIr(}i.AN, CITY COMMISSION seeking among others c: ,. c;lJ:'D,tion that the flohoupes on Plo\s No. 419 and 420 Block B Sinza Kinondoni District are 1'1fully owed by them. Upon filing the plaint on 7th Sp"ember 199, the , : plaintiffs through the services of D.K.Mutabuzi & Co. dvocates also filed a Chamber Supunon.s under Order XXXVII "'l1Je '1 m'cd 2, Section 68 (C) and (e) and 95 of the Civil Procedure Code praying for temporary injunction agaiI!o--..t 1st TIespondent / Defendant from evicting the tenants and taking F' :>ssession of the houses under dispute and the subjecfD.Jlefne proceedings. On 1L~/10/99 Mr. Juma MagembeNgomani 1st Respondent?c..'1d D(dendant entered appearance prayed for and was graned leave to counter the Chamber application. He ~ to file. his counter'" C'.ffida'iit .m 22/10/99 ,-md the application was st fat hearing on 9th November, 1999. en 9th NOTember 199' the applic-ents / plo.intffs appeared but 1st respondeD:t / defendant did not appear and had not filed hi!" counte,r - , affidavit ~ ordered where9.t the applicants / plD.intiffs "ere given leave to argue the application exparte on the very day" Follo'i/ing the npplicant/ plaintiffs submissions the court granted the temporary injunction sought against .theRspondent / Defenda~~, his e.gents or any person acting under his D.uthority restrt\ining them from herassing or evicting the "lp-plic"XDts/ pluintiffs tenats occupying the houses on Plots 419 & 420 BlockB Sinza rea pendtng the determination of the suit filed • .8ince the grant of the temporary injli..'1.ction on 9th November 1999, 'the I case has been mentioned four times on 14/1,2/99, 9th February d?OO, 5th April and tooay 1/6/2000. To day the 1st resyJondent / defendant aped fu' person I professer . . and advoclated by • Mgongo Fwbo ,,1110 nforrnel;1the court that· henes ' . since April 2000 accepted to take up the brief of he 1st respondent / defendcm on a 1egt aid basis. UponbeinJ; informed of the statultque Of& CllS&,

" It L~ " Professor Fimbo prayed for leove for extenion of time to file a written sta.±.ment of defence, e. pra.yer Vlh:'ch \0119..'3 vehemently resisted by Mr Lyimo earned advocate for tDe plaintiffs. Mr. Lyimo argued tht in term8 of Order YilI of the Civil :;:'rocedure CodE::, the defe:cdrmt's norm..:.ltimE: to file hi8 defence is twenty one days (21) from 14/O/99 when he entered arpeaQce unless extension of time 'N'as gra'1ted. Yir. li<Jilno furtl'wr argued that in terms of Order VIII Rule 1 a'1d 2 of the Civil Proc06ure Code DB amended by ~ 422/94 the court is no lG'lgerempe,;,,;::"'l to err'ier;t1 time to file the defence 8.3 from 6th November 1999. Hr. Lyi!llC' therefore urg8Q the court to reject the applic"'.tio,·, for extension and ::,r()ceed ei'l'ler to enter judgment or order to preve the cMe ex parte by Oyal evi1ence under Order VIII Rule 14 (2). In his ri[!ht of ro:ply rlcfes8or Fimb0 while conc.ding to Hr. Lyimo's argments requested the court to use itA in herent pov/ers in terms of '>,r:tion 93 end 95 of the Civil Procodus Code to grant the extension sought for the ends of justice to be Llet iLl the case under reference p,3.rticulnrly taking into account that the defend~~t is illiteate with no means. It is not in dis:;:,.,te t~~~t +'1.ere h':8 ":'Jeen on incrdina.te delay on the part of the 1st defendant to file hi,.,. \J.d i:tOl1::'-L"':eqlent defenCE: nfter ha. T ing being served 'It/ith the p:nint and upon entering 0.];'pearance on 14/10/99. There h::>;3 been no sufficient cauq'" OT reaE'on given :01' the deley for thi" court to , c-nQ or end exercise either .. its di'Jcretior" inJherent P""'701'13 under Section 9-'; or 95 of th'3 Civil Procedure Cede in linE. -,,'.th the argn'ent of ProfeB,ser Ngongo Fimbo. On the other hond there ip the submi2sion by ~~o Lyimo learned advocte th, in terms of Order VIllI Rt.11ps (1) f2lnd(ii) of the Civil Procedure Code as amended by GN 422/9~" follo.!ulg thi.s Wordine.te dely this court's hn,nds are tied from further extending the period to file the defence in questiono T agree and note fu~~·ther thnt the force behind the a'1lendmentinfT'{ 422/94 is to restrict the period for pleding8 so that the matters under dispute go to tri~ earlier thon later. I om afraid the 1st defendant cannot escape the force in Order VIII Rule 14 os amended by GN 422/94. Accordingly I reject the prayer for extension of time to file a defence on me Tart of the "'ir'::' defendant and order tho.t the ]:'1 ,intiff proceed to pove the case exparte agaLst the first defendantn Plaintiffs / Jpplicant Plintiffs / :plicnt D~fendant l Respondent I I LYmo ~