ANNA KEMILEMBE vs HENRICK WILLEM TIMMER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPLICATION NO. 19761 OF 2024 (C/F Civil Appeal No. 5041of 2024 High Court Arusha) ANNA KEMILEMBE BAHIGANA........................................................ APPLICANT VERSUS HENRICK WILLEM TIMMER...................................................... RESPONDENT RULING 25/02/2025 & 06/03/2025 NDUMBARO, J Before me, is an application for security for cost, whereby an applicant praying this court to be pleased to order the respondents to furnish security by depositing in Court Tshs 30,000,000 being security for costs incurred and likely to be incurred by the applicant in defending Civil Appeal No. 5041 of 2024 (the Suit), among others. The application is made under the provisions of Order XXV, Rule 1 of the Civil Procedure Code [Cap. 33 R.E. 2019] and supported by the affidavit of ANNA KEMILEMBE BAHIGANA, the applicant. When the matter called for orders, the respondents herein raised three preliminary objections on the point of law that; o^This application is time-barred pursuant to Item No.21 part 111 of the schedule to the Law of Limitation Act Cap 89 RE 2019 and various decisions of this court b) the said application was unmaintainable as emanates from the appeal c) application offending provision of order XIX Rule 3 of CPC Cap 33 RE 2019 and section 10 of oath and statutory Act Cap 34 of 2019. The preliminary objection had to be disposed of first, and the parties opted to argue orally. The applicant enjoyed the legal services of advocate Wilbert Masawe, and the respondents, on the other hand, were represented by advocate Boniface Kamugisha Buberwa. The respondent chose to abandon the third objection and argued on 1st and 2nd objections. Arguing in support of the 1st preliminary objection, Mr. Masawe submitted that the application for security for cost is time-barred. Submitted since there is no specific time limit stipulated in the civil procedure Code on the application for security for costs made under Order 2 XXV Rule (1)(1) of CPC Cap 33 RE 2022, the law of limitation shall apply. Submitted that the Item No. 21 of part III of the schedule of Law of limitation Act Cap 89 is applicable to any application in which the time limit is not specifically stipulated in the Act, that the time limit shall be 60 days. Submitted further that, the appeal on which the applicant made application for security for costs was filed by respondent herein on 30/04/2024 while the application for security for cost was filed by applicant herein on 14/08/2024, referred in paragraph 2 of applicant affidavit as annexure AKB-1 which was attached therein, therefore the application is time bared for more than one hundred days. Argued that even considering the date electronically filed, the matter will still be out of time. Submitted that the consequences of filing the matter out of time is stipulated in Section 3(1) of Law of Limitation Act, that to dismiss the matter. Hence, we pray to this court to dismiss the matter with cost. On the second ground argued, Order XXV Rule (1) and (2) the application for security for cost is reserved on suit and not appeal. In that regard, the application was reserved at the time of trial court where the foreigner is the defendant and has no property or money in the Bank 3 account to satisfy decree, hence, this application is redundant, be strike out with cost. Responding to the above, the appellant though his counsel Mr. Buberwa invited the court to consider oxygen principle enshrined under section 3A (1) and (2) and 3E (l)(ii) of CPC Cap 33 RE 2019, and article 107 of United Republic of Tanzania Constitution, that court shall get rid with technicalities, argued the two Preliminary Objection intended to delay justice. Submitting in 1st PO submitted that, the PO raised need to be securitised, quoting the case of Nasor Hamis Nasor Vs Regina Ishemwambura Civil appeal No. 552 of 2024, page 3,4 and 5 referring celebrated case of Mukisa Buiscuits Manufacturing Company Limited Vs West End Distributors LTD 1969 1 EA 696 that, the PO raised was not on pure point of law and affidavit was scrutinized in computing time to make application to have no merit. On the second issue that the application for security for cost is not preferred in an appeal but in suit, the applicant argued that an appeal is defined as a suit, and considering the fact that the applicant resided outside Tanzania, qualify to the provision of Order XXV Rule 1 of CPC Cap 33 RE 2022. Therefore, Preliminary Objections has no leg to stand. In a rejoinder, Mr Masawe retaliated his submission in chief and submitted that the quoted case of Nasor Hamis Nasor Vs Regina Ishemwambura Civil Appeal No. 552 of 2024, referring to the case of Mukisa Buiscuits Manufacturing Company Limited Vs West End Distributors LTD 1969 1 EA 696, has no relation to the matter at hand. The applicant ignored the fact that the facts of the case must be extracted from pleadings. The respondent extracted the date of filing the appeal and application to make this application time-barred. Argued the applicant did not respond on the applicability of Item No. 21 of part III of the schedule of Law of limitation Act Cap 89 in this application, that is to say he conceded. On application of Oxygen Principle under section 3A, Mr Masawe argued that, the applicability of the principle not on its generality. The principle cannot be invoked to overlook the mandatory provisions of law, as it was ruled in Mondorosi Village Council & Others vs Tanzania Breweries Ltd & Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14 December 2018). On the issue that there is no time limit in this application, Mr Masawe argued that all applications have a time limit unless it is expressly provided in a particular law. Therefore, the plaintiff made a prayer that the application be dismissed with costs. Having considered the parties' submissions, the main issue to be determined by this court is whether the POs have merit. In the decision of Court of Appeal in the case of Loswaki Village Council & another vs Shibesh Abebe, Civil Application No. 23 of 1997 provides that, the case before the court of justice must file proceedings within a period prescribed by the law, or where no such period is prescribed, must file within a reasonable time. It was the submission of the respondent counsel that, Item No. 21 of part III of the schedule of Law of Limitation Act Cap 89, is clear to the effect that, an application to which no time limit is set out must be filed to this Court sixty (60) days from the date of the decision. The position receives support in a number of cases, including the case of Omari Rwechungura Kakweke Vs Evarist Magoti Misc. Land Application No. 1 of 2022). That; "Application under the Civii Procedure Code, the Magistrates' Courts Act or other written law for which no period o f limitation is provided in this Act or any other written law time limitation will be sixty days" This Court finds that, since the Civil Procedure Code is silent on the limitation of time to institute the application for security for costs, the same has to be preferred under item 21 of Part III of the Schedule to the Law of Limitation Act CAP 89 RE 2019, which provides for 60 days from the date of instituting the suit. I have carefully read the pleadings of the parties to which parties are contesting and observe that the appeal by the appellant who is respondent herein was filed on 30/04/2024 while this application for security for cost by applicant herein was filed on 14/08/2024 to make 104 days. I agree with the submission of the respondent counsel that every application is subjected to a time limit unless the law expressly provides for no time 7 limitation. Item No. 21 of part III of the schedule of Law of Limitation Act Cap 89 is clear to the effect that; The Application under the Civii Procedure Code, the Magistrates' Courts Act or other written law for which no period o f limitation is provided in this Act or any other written law is limited to 60 days. I, therefore, find this PO has merit. Since the matter is time-barred, this court has no jurisdiction to determine, on that ground, the second PO On as to whether security is awarded only suit and not in appeal, that appeal do not fall in under category of suit, died naturally. In this regard, since the appeal was filed on 30/04/2024 and this application was filed on 14/08/2024, 104 days after and considering the time limitation for this application is 60 days, it is my firm view that the application was filed out of time. That said, I find merit in this preliminary point of objection, and I consequently dismiss the application for security for cost with costs. 8 It is s^qj'dered. D. D. NDUMBARO JUDGE 06/03/2025 9