AMINA SWALEHE

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA MISC. CIVIL APPLICATION NO. 7381 OF 2024 (Arising from Misc. Civil Cause No. 2 o f2022 originating from an Application for Prerogative Orders of Mandamus and Certiorari, and in the matter o f dismissal from employment as a teacher by the Teacher's Service Commission, office o f Kondoa as confirmed by the President's Office) AMINA SWALEHE MKWATA.........................................................APPLICANT VERSUS TEACHER'S SERVICE COMMISSION PRESIDENT'S OFFICE KONDOA............................................. 1st RESPONDENT THE ATTORNEY GENERAL...................................................... 2nd RESPONDENT RULING 04h December, 2024. HASSAN, J.: The application is made by chamber summons under section 14 (1) of the Law of Limitation Act, [Cap. 89 R.E 2019]. Whereby, the applicant is in hunt for an order to enlarge time within which she can file an application for a prerogative order of mandamus and certiorari, compelling the first l respondent to reinstate the applicant as a teacher from the date of her dismissal, which was 5th August, 2019 to her retirement date. The application is accompanied by an affidavit deponed by the applicant herself. On the other hand, the respondents filed a joint counter affidavit together with a notice of preliminary objection. Customarily, as it is supposed to be, the preliminary objection being the point of the law should be staged first. In the preliminary objection, the respondents have triggered only one point of law to be determined by the court thus: 1. This application is untenable in law for want o f jurisdiction. During the hearing of the preliminary objection, the applicant appeared herself, unrepresented by counsel. Whereas, the respondents appeared under the warden of learned State Attorney, Mr. Erasto Stephen Lubuwa. The matter proceeded by way of written submission. Credit to all parties for strict adherence to the terms of preferences in submitting their submissions. On their part, the respondents submitted that the point of preliminary objection raised that touches Jurisdiction of the court is a pure 2 point of law in conformity with the conditions set forth in the famous case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] 1 EA 696. Where a test for a preliminary objection on a pure point of law was defined at page 700 thus: "A preliminary objection consists o f a point o f law that has been pleaded or that arises by dear implication out o f pleadings and which, if argued as a preliminary point, may dispose o f the suit. Examples are an objection to the jurisdiction o f the court or plea o f limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration" He further submitted that after passing through the applicant's affidavit, especially the annexure, in respect of the ruling of Misc. Civil Application No. 45 of 2022, whereby this court held that: "After consideration, the application was filed way far beyond the time stipulated by law, I invoke section 3(1) o f the Law o f Limitation Act Cap 89 to withdraw the application with no order as to costs.". 3 Based on the quotation above, the respondents viewed that, according to the said ruling which was delivered before this honourable court on 16th November 2022, of which, instead of withdrawing [sic], the said application ought to be dismissed, and thus, the applicant is barred from bringing in a fresh application to this court. Learned State Attorney further stressed that, where the application is held to be time barred, that means, there is no alternative for bringing a new application in the court. Submitting further, he cited the case of Hezron M. Nyachia Versus Tanzania Union of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001 TZCA (Reported tanzlii). The Court of Appeal held that; "It is our considered view that Section 3 o f the Law o f Limitation applies also in respect o fproceedings instituted under the (Fatal Accidents and Miscellaneous Provisions) Ordinance...... We have already held that the learned trialjudge erred in deciding the main application on merit in the preliminary objection. We have also held that\ since the appellant's application was time barred, it deserved to be dismissed. " 4 Adding to that, he pressed that despite the fact that the court withdrew the application instead of dismissing it, that is immaterial. He argued, that the akin situation has been addressed by the Court of Appeal of Tanzania in the case of Mm Worldwide Trading Company Limited & 2 Others Versus National Bank of Commerce Limited, Civil Appeal No. 258 of 2017 (2021) TZCA (Reported tanzlii) at page 10, the court held that: "That, the decision is an authority for the proposition that it is the substance o f the matter that must be looked at rather than the words used. It is dear to us that irrespective o f the words used, the final order amounted to a conclusive determination by the trial court disposing o f the former suit for being time barred. In our view, it was not open for the respondent to institute a fresh suit, as it were, simply because the trial court struck out the former suit rather than dismissing it as mandated by section 3 (1) of the Act... as far as the issue o f limitation had been finally and conclusively determined... exemption from limitation on a 5 matter that was already held to be barred by limitation did not have the effects o f reviving." Cementing on the above-cited case, learned State Attorney earmarked a similar context in the application at hand, whereby this honourable court invoked Section 3 (1) of the Law of Limitation Act, Cap 89, having held that the application was filed way far beyond the time stipulated by law; thus, the court went on to withdraw the application instead of dismissing it. To buttress their arguments, they referred the case of East African Development Bank Versus Blueline Enterprises Limited, Civil Appeal No. 101 of 2009, TZCA (Reported Tanzlii), which provided for the interpretation of Section 3 (1) and 14 (1) of The Law of Limitation Act, Cap 89 where at Page 13 the court held that: "This brings us to what we think is the proper construction o f sections 3(1) and 14(1) o f the Limitation Act in relation to the matter before us. In construing these provisions, we are o f the view that they should be given a harmonious interpretation. According to Mulla (supra), the harmonious construction o f these sections being enacted simultaneously... without much ado, we are o f the view 6 that in enacting the iaw o f the Limitation Act, especially sections 3 (1) and 14 (1), the legislature intended that there must be an end to litigation." [Emphasis is mine.] Additionally, learned State Attorney, also submitted that, apart from the above-cited case, the court quoted with approval the case of Olam Uganda Limited (suing through its attorney) United Youth Shipping Company Limited v. Tanzania Harbour Authority, Civil Appeal No. 57 of 2002 (unreported). Where the court stated that; ”A suit or legal proceeding instituted beyond the period does not He, and in the light o f the mandatory provision o f Section 3(1) o f the iaw o f the Limitation Act, 1971, it shall be dismissed whether or not limitation has been set up as a defence.... In our considered opinion then; the dismissal amounted to a conclusive determination o f the suit by the high court, as it was found to be not legally sustainable. The appellant cannot refi/e another suit against the respondent based on the same cause o f action unless and until the dismissal order has been vacated 7 either by review by the same court or an appeai or revision by this court. "[Emphasis Supplied]. By cementing his submission, he contended that from the foregoing lucidity and authorities, the present suit is time barred, and the court's jurisdiction is restricted to matters that are brought within time. In the case of Commissioner General, Tanzania Revenue Authority v. New Musoma Textiles Limited, Civil Appeal No.119 Of 2019 TZCA, at pages 16 & 17, the Court of Appeal of Tanzania dismissed the appeal after observing that the High Court had no jurisdiction to entertain the matter. It was held that: "The matter was pursued in the high court, which had no jurisdiction over the matter... the upshot o f the matter is that the appeal is without merit It is stands dismissed with costs." Thus, in conclusion, he prayed the court to dismiss the application at hand, as the court has no jurisdiction to entertain the same. In response, the applicant primarily admitted that, there is no dispute on the issue that the preliminary objection has to be on a pure point of the 8 law, as the respondents have cited the case of Mukisa Biscuts Manufacturing Co. Ltd. vs. West End Distributions Ltd. [1969] IEA 696. However, she contended on the case laws cited by the learned State Attorney, in Herzon M. Nyachiya v. Tanzania Union of Industrial and Commercial Workers and another, Civil Appeal No. 79 of 2001, that has cited the words of Sir Charles Newbold in the case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd (supra). On that, the applicant argues that the same are inapplicable to the circumstance of this case and, therefore, they are distinguishable. The applicant argued further that the facts in the current application provides a chance for other remedies, like a review of the application by the respondent, if they wish. Hence, the situation renders such a preliminary objection not the one to be ascertained by facts, that it is not on a pure point of law. She therefore cited the case of Soitambu Village Council Vs. Tanzania Breweries Limited and Another, Civil Appeal No. 105 of 2011 [2012] TZCA 255 (17 May 2012). The applicant submitted further that the respondents are complaining about Misc. Civil Application No. 45 of 2022, in which, the court ruled to be withdrawn. Therefore, the Respondents' intention is to delay justice for the 9 Applicant here and above because the court ruling aimed at giving the applicant the opportunity to file a fresh case. To cement her contention, she cited the case of Airtel (T) Limited Versus Earl Matthysen, Misc. Application No. 144 of 2017 [2018] TZHCD 53 (May 2018), where it was held that: "The court struck out the application for being incompetent; however, in the interest o f justice, the applicant was granted seven days leave to file a proper application. She pressed that it is for the matter o f justice that the court decided on the said Misc. Civil Application No. 45 o f2022 to give room for the applicant to bring the matter afresh." Basically, this was what had been submitted by the applicant in response to the preliminary objection raised by the respondent. Notably, though, I have left behind a chunk of the applicant's submission that addressed the merit of the application. For clarity, I wish to remind the applicant that, at this stage, we are only dealing with the preliminary objection and not otherwise. 10 At this juncture then, the issue for determination of the court is whether the point of preliminary objection raised has been injected, if the answer is in positive, the follow up question is, does it have merit? In the first place, dealing with the issue as to whether the preliminary objection has been properly raised by the respondents. In my considered view, the answer is positive. This is due to the fact that the order given by this court on 16th November, 2022, was typically the import of section 3(1) of the Law of Limitation Act, which refers to the issue of time limitation and constructively touches the jurisdiction of the court. This position has been lectured on time and time again; thus, the jurisdiction of the court is a prototype of an issue that is illegible for a preliminary objection. See for instance, in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd (supra) and many more. That said, the point of preliminary objection injected by the respondents, in my view based on the authority above, is a pure point of law, and therefore, it is instructive to be determined by this court. Moving forward to the point, as to whether or not the preliminary objection is meritorious. Notably, the objection upstretched is thus: the 11 application is untenable in law for a want of jurisdiction. Here, the respondents contended that the court invoked section 3 (1) of the law of the Limitation Act, Cap. 89 R.E 2019, to withdraw, instead of dismissing the same. However, learned State Attorney contended that, even if the court had used the term "withdraw" instead of "dismiss," yet still, its effect will remain to be dismissed as provided under section 3 (1) (supra). To cement their argument, the respondents have cited the case of Mm Worldwide Trading Company Limited & 2 Others Versus National Bank of Commerce Limited (supra). Whereas, on the other hand, the applicant opposed the contention and argued that, what the court decided in its ruling was the true intent of the court. That is, to give the chance to the applicant to file a fresh application for the interest of justice. The applicant cited the case of Airtel (T) Limited Versus Earl Mathysen (supra) to back up her assertion. In my view, going through the contentious argument, I am of the firm opinion that, the court has expressly pronounced to have invoked section 3(1) of the law of the Limitation Act, it is obvious that the remedy should be 12 what has been provided under such provision. For clarity, section 3 (1) of the law of the Limitation Act provides: "S. 3; Dismissal o f proceedings instituted after period o f limitation— (1) Subject to the pro visions o f this Act, e very proceeding described in the first column o f the Schedule to this Act and which is instituted after the period o f limitation prescribed therefore opposite thereto in the second column shall be dismissed whether or not limitation has been set up as a defence." In the circumstance, it is apparent from the dictum of the provision above that law requires a suit that went beyond limitation be dismissed. Thus, turning to the matter in context, indeed there was a slip-up of the keyboard, whereby, instead of writing dismissed as an import of section 3 (1) of the law of the Limitation Act, the court recorded withdrawn. However, as it has been rightly argued by the learned state attorney hereabove, this quote out of context has not affected the remedy available under such provision of section 3 (1) of the law of the Limitation Act. That means, no 13 matter which vocabulary is used in the substitute of the term dismissed, the remedy available in terms of section 3 (1) of the law of the Limitation Act will remain the same. See again, Mm Worldwide Trading Company Limited & 2 Others Versus National Bank of Commerce Limited; and Uganda Limited (suing through its attorney) United Youth Shipping Company Limited v. Tanzania Harbour Authority (all supra). In the upshot, that being the position of the law, this application becomes futile. Consequently, the preliminary objection is sustained, and the application is thus dismissed for want of jurisdiction. Owing to the nature of this application and the circumstances surrounding the applicant, I make no order as to costs. Accordingly ordered. 04/12/2024 14 This ruling delivered this 04th day of December, 2024, in the presence of the parties an er is dismissed without costs. tA -(— ^ JUDGE 04/12/2024 15