bertha zebedayo mbise administratrix of the estate of the late aminiel tuwati sarakikya vs aida adamsoni kalinga 2022 tzhclandd 98 28 february 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO.296 OF 2021 (Originating from Land Appeal No. 141 of 2015) BERTHA ZEBEDAYO MBISE (Legal administratrix of the estate of the late AMINIEL TUWATI SARAKIKYA)................... APPLICANT VERSUS AIDA ADAMSONI KALINGA............................................... RESPONDENT RULING Date of last Order: 28.02.2022 Date of Ruling: 28.02.2022 A.Z MGEYEKWA, J This is an application for setting aside the dismissal order made by this court made on 21st May, 2021 in Misc. Land Case Application No. 74 of 2019. The application is brought under Section 51 (2) of the Land Dispute Courts Act, Cap. 216 [R.E 2019] and Order XXII Rule 9 (2) of the Civil Procedure Code Act, Cap.33 [R.E 2019], The application is supported by an affidavit of Bertha Zebedayo Mbise, the applicant, and contested by a counter affidavit of Aida Adamson Kalinga, the respondent and he filed a 1 preliminary objection complaining that the applicant's application is misconceived and bad in law for contravening a mandatory provision of Order XXII Rule 3 (1) of the Civil Procedure Code Cap.33 [R.E 2019]. It is the practice of the Court to determine the preliminary objection first before going into the merits or demerits of the application. Therefore the same cannot be overlooked. When the matter was called for hearing before this court on 14th November, 2022 both parties appeared in person, unrepresented. The respondent urged this court to argue the application by way of written submission. By the consent of this court, the parties argued the application by way of written submissions whereas, the respondent filed his submission in chief on 14th December, 2021 and the applicant did not comply with the court order. The applicant was supposed to file his reply on 5th January, 2021. When the matter was set for mention on 16th February, the applicant requested for extension of time bust again, she did not comply with the court order. Therefore the matter proceeded exparte against the applicant. In his written submission, the respondent contended that in accordance to Order XXII Rule 3 (1) of the Civil Procedure Code Cap.33 [R.E 2019], it is mandatory for a legal representative to file an application on his name to be entered as a party of the suit. He went on to submit that 2 as per Part III, item 16 of the First Schedule of the Law of Limitation Act, Cap.89 requires the application to be made within 90 days which reads:- “ Under the Civil Procedure Code, to have a legal representative of a deceased party, whether in a suit or on appeal to be made a party... ninety days. ” He went on to state that the days started to run from the date of the death of the applicant in Misc. Application No.74 of 2020. To support his submission he cited the case of Salehe Said Nahdi v Mational Microfinance Bank PLC and another, Commercial Case No.1 of 2015. He continued to state that the application for a legal representative was supposed to be made on or before 12th March, 2020. The respondent went on to state that since there is no any application made by the applicant to join the legal representative and because of the fact that 90 days have lapsed from the date of the death. To support his submission he cited the case of Doto Abdallah Rashi (as an administrator of the estate of the late Asha Jumanne) v Ramadhani Kilolanzi, Misc. Land Application No. 192 of 2019 HC at Dar es Salaam (unreported). It was his view that the applicant has no locus standi to apply to set aside an abatement order in respect of Misc. Land Application No. 74 since she is not a party to the application as per Order XXII Rule 3 (i) of the Civil Procedure Code. 3 On the strength of the above submission, Mr. Chilamula beckoned upon this court to strike out the application with costs. I have considered the learned counsel for the respondent submission. From the outset, I fully subscribe to the submission made by the respondent's that the matter before this court was brought in the name of Aminiel T. Sarakikya, the deceased against Aida Adamsoni Kalinga whereas Bertha Zebedayo Mbise was not a party to the application in Misc. Land Application No. 296 of 2021. The law is clear that a legal representative of a deceased party is required to file an application to join the suit or appeal within 90 days. For ease of reference I reproduce Part III, item 16 of First Schedule of the Law of Limitation Act, Cap.89 as hereunder:- “ Under the Civil Procedure Code, to have a legal representative of a deceased party, whether in a suit or on appeal to be made a party... ninety days. ” He went on to state that the days started to run from the date of the death of the applicant in Misc. Application No.74 of 2020. To support his submission he cited the case of Saiehe Said Nahdi v National Microfinance Bank PLC and another, Commercial Case No.1 of 2015. As rightly submitted by the respondent that the application for a legal representative was supposed to be made on or before 12th March, 2020. 4 The 90 days lapsed from the date of the applicant's death that is why this court found that the Misc. Land Case Application No.74 of 2019 was taken by the event, the same was abated under Order XXII Rule £ (2) of the Civil Procedure Code Cap.33 [R.E 2019]. Now, coming before this court with an application to restore the Misc. Land Case Application No. 74 of 2019 is not a correct, since Bertha Zebedayo Mbise, the applicant in the instant application was not a party in Misc. Land Case Application No. 74 of 2019. In the upshot, I find that the instant application is incompetent before this court. Therefore I sustain the preliminary objection and proceed to strike out the Misc. Application No. 296 of 2021 without costs. Order accordingly. Dated at Dar es Salaam this date 28th February, 2022. 5