IN THE HIGH COURT OF TANZANIA

(LAND DIVISION)
AT DAR ES SALAAM
LAND CASE NO. 252 OF 2022
BETWEEN
RASIA HARUBU SALUM (Administratrix of the Estate of the late Harubu Salum
Masamala)........................................................................................ PLAINTIFF
VERSUS
HALIMA MSHINDO (As Administratrix of the Estate of the
late Mariam Mzee) .................................................................. 1st DEFENDANT
HALIMA MSHINDO............................................................. 2nd DEFENDANT
KURUTHUM MSHINDO....................................................... 3rd DEFENDANT
HASHIM KAMBI.................................................................. 4th DEFENDANT
SALUM KINDAMBA............................................................. 5th DEFENDANT
JAFRA INVESTMENT & SUPPLIES CO. LIMITED.................. 6th DEFENDANT
FELIX NDAZI ....................................................................... 7th DEFENDANT

RULING
Date of last Order: 04/08/2023

Date of Ruling: 15/08/2023

A. MSAFIRI, J.

The plaintiff herein above is suing the defendants jointly and

severally claiming that she is the rightful owner of a farm land measuring

thirty-seven (37) acres situated at Magambani - Mitimingi Kaole,

Bagamoyo District, Pwani Region, and that the defendants are the

trespassers in the said farm land.

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 On 09 June 2023, the 1st to 6th defendants filed a Notice of

Preliminary objection to the effect that;

1. That, the Plaint in this suit is bad in law for being filed beyond the
order of this Honourable Court dated on 24h April2023.

The preliminary objection was argued orally whereas the plaintiff was

represented by Mr. Abraham Senguji, with Mr. Benson Kubhoja, learned

advocates. The 1st- 6th defendants were represented by Ms. Agnes Uisso,

learned advocate. The 7th defendant was ex-parte.

Submitting in defence of the raised preliminary objection, Ms. Uisso

stated that the amended plaint which has been filed in this Court was filed

out of time contrary to the order of this Court issued on 24th April 2023.

That the order of the Court required that the amended plaint to be filed

on 27th April 2023, but unfortunately the same was filed on 28th April 2023,

without leave of the Court. Ms. Uisso submitted further that, it is a clear

position of law that late filing of documents in Court without leave of the

Court renders the said documents to be as if they have never been filed.

She said that since the amended plaint has been filed out of time,

it is as if there is no plaint in this case as the old one has also died naturally

after the Court has granted leave to file the amended plaint. /LI j

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 To cement her points, Ms. Uisso cited the case of Michael B.

Masinde vs. D.S. Izina Alias Dhahiri Said Izina & 3 others, Land

Case No. 3 of 2021, HC DSM (Unreported) at pages 2-3. She prayed for

the Court to strike out the plaint with costs.

In response, Mr. Kubhoja submitted that the preliminary objection

is misconceived and should be overruled. He said that as per the principle

set in the case of Mukisa Biscuits, a preliminary objection must be on

the point of law and should be based on the pleadings. That, the written

statement of defence of the defendants which has raised the preliminary

objection has no attachment of the Court Order of 24 April 2023.He said

that, since the pleading is the only base of preliminary objection, and the

said order is not attached, then the preliminary objection has no base.

Mr. Kubhoja argued that Order VI Rule 18 of the Civil Procedure

Code, Cap 33 R.E 2019 (the CPC), provides for 14 days of filing if there is

no limitation of time. That since the limitation of time is not clearly shown

in the written statement of defence which is the pleading and since the

plaint was filed on 28 April 2023, it therefore concludes that the plaint

was filed on time.

Mr. Kubhoja submitted further that by filing the plaint on 28/4/2023,

the defendants have not been prejudiced in anyway. fyfl I g.

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 He argued that this case has been in Court since 2018, hence for

the purpose of dispensation of justice, he is moving the Court to invoke

the principle of overriding objective. He contended that the case cited by

the counsel for the defendants is distinguishable from this case.

Mr. Senguji, subscribed to the submissions of Mr. Kubhoja and

referred this Court to the case of Leila Suleiman Yange vs. Rahma

Mohamed Mabrouck, Probate Appeal No. 11 of 2022, HC at

Morogoro (Unreported), whereby the Court invoked overriding objective

where the delay was for one day only. He prayed for the Court to overrule

the preliminary objection.

In rejoinder, Ms. Uisso, reiterated her submissions in chief and

prayers. She added that the preliminary objection is on point of law and

is based on the pleading which is the plaint itself. On the principle of

overriding objective, she argued that the principle is not a shield to defeat

the spirit behind the enactment of procedural laws.

Having heard the submissions from both rival parties, the issue for

my determination is whether the preliminary objection is tenable. First, it

is my finding that this preliminary objection is on point of law. It is the

laid down rule that the Court's orders has to be complied with, and that

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is why the procedures are firmly set and have to be obediently adhered

to. The orders of the Court are mandatorily to be followed.

On 24 April 2023, the counsel for the plaintiff, prayed for the Court's

leave to amend the plaint. The leave was granted and the Court ordered

that the amendments prayed to be filed by 27 April 2023. However, the

amended plaint was filed on 28 April 2023.

The plaintiff did not seek the leave of the Court to file the amended

plaint beyond the time scheduled by the Court, and there was no any

reasons advanced by the plaintiff until when the defendants raised a

preliminary objection.

Responding on the raised objection, Mr. Kubhoja, argued that the

written statement of defence is not attached with the order of the Court

which is a base of the raised objection and that the written statement of

defence is the pleading.

I find this argument to be deliberately misconceiving. This is for the

reason that the pleading comprises both the plaint and the written

statement of defence. Despite that, the raised preliminary objection

emanates from the clear order of the Court which the plaintiff has failed

to comply with. Mr. Kubhoja has referred this Court to the provisions of

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Order VI Rule 18 of the CPC. For clarification, I shall reproduce the said

provisions herein below;

Order VI Rule 18:-

Where a party has obtained an order for leave to

amend does not amend accordingly within the
time limited for thatpurpose by the order, or ifno
time is thereby limited then within fourteen
days from the date of the order, he shall not be
permitted to amend after the expiration of such
limited time as aforesaid or ofsuch fourteen days,
as the case may be, unless the time is
extended by the Court"(emphasis added).

To my understanding of the above Rule, 14 days will be counted if

there is no limitation of time. But in the present matter, the Court's order

set the time limit, i.e. the amendment to be filed within two days (2) i.e.

by 27/4/2023, the plaint was filed on 28/4/2023 and with no Court's leave

for extension of time.

Mr. Kubhoja has averred that, this case has been in Court since 2018,

and the amendment prayer was due to some development in the case,

and the same was to help the Court to determine the real question in

controversy between the parties,ml 10

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 I am in total agreement that the intended amendment was done

and would have assisted the Court in its determination of the matter.

However, this does not preclude the plaintiff from complying with the

Court's orders or from following the procedures set.

Mr. Kubhoja has moved the Court to decide in consideration that

the delay was only eleven (11) hours. I don't know how the counsel has

calculated the time, but the fact remains that the amended plaint was

filed on 28/4/2023 instead of 27/4/23. It is a one delay, but still, it

contravenes the Court's Order. If this Court will condone the acts of

contravention of its orders for the reason that it is just a short delay, then

there will be no need to have rules and procedures guiding the

proceedings in Court, which binds the parties.

On the principle of overriding objection, I admit that the Courts are

bound to avoid technicalities and focus on dispensation of justice. But in

the present matter, it was the Court's order which was ignored. The

counsels for the plaintiff have not expressed or give out reasons for not

filing his amended plaint on time.

It is has been emphasized by various judicial decisions that the

principle of overriding objective was not meant to be a refuge to each and

every blunder committed by a party in civil proceedings. (See also the

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Court of Appeal case of Mondorosi Village Council and 2 others vs.

Tanzania Breweries Limited and 4 others, Civil Appeal No. 66 of

2017, CAT at Arusha (Unreported)

Mr. Senguji has referred the Court to the case of Leila Suleiman

Yange (supra). In that case, the appellant did not comply with the

Court's order regarding filing of her written submission in chief. However,

Hon. Ngwembe, J, decided to proceed with the judgment instead of

dismissing the said appeal. Among the reasons for his decision was that,

much as he admitted and associated himself with rules from precedents

which rules that failure to file written submission within the time

prescribed by the Court order amounts to failure to prosecute, Hon.

Ngwembe, J was of the view that the above rules are from the precedents

as opposed to statutory. The Court in the cited case observed that there

is no any provision in the Civil Procedure Code governing the presentation

of written submissions to the Court.

I wholly subscribe to the Court's observations and decision in the

cited case. However, it is my view that the situation in the cited case is

distinguishable from the situation in the case at my hand. There are

numerous authorities cementing on the importance of parties' compliance

with the Court's orders. But in addition, the position where the party has
Alt
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failed to amend a pleading after an order is issued is provided under Order

VI Rule 18 of the CPC as quoted herein above.

In this matter at hand, the Court has not extended the time for filing

the amended plaint as the plaintiff has not sought leave to do so, instead,

the plaintiff went on to file the same out of time. It is for the foregoing

reasons that I sustain the preliminary objection and proceed to struck out

the case, with costs.

A. MSAFIR1
JUDGE '
15/8/2023