Misc

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 8284 OF 2024 KALAMBO DISTRICT COUNCIL APPLICANT VERSUS AMRI SAID NYAMBELE 18h & 25h February, 2025 MRISHA, J. ^^k Through this ruling, what is to be focused and determined first is whether th ion raised by the respondent is meritorious. It is obvious that the same was raised in order to halt the applicant’s efforts to have his application for extension of time within which to file his Notice of Appeal to the Court of Appeal out of time against the decision of this Court in RM’s Civil Appeal No. 2 of 2019, and of the Resident Magistrate’s Court of Sumbawanga in RM’s Civil Appeal No. 09 of 2017. From the filed Notice of preliminary objection, the respondent has fronted three grounds which can be recapitulated to the effect that: 1 1. The application is bad in law and not maintainable for being preferred against a deceased (Amri Said Nyambele) hence the said person is incapable of either suing or being sued. 2. The affidavit in support of the instant application is defective for being supported by a defective affidavit in three aspects namely; one, the affidavit is comprised of hearsay arg nts, two, the said affidavit depositions (paragraphs) a before the verification clause and three ctive for not verifying sub-paragraph 3. The application is in et itation of the enabling provisions. The hearing as done by way of written submissions ies’ consensus that the same be heard in that y an filed their respective written submissions throug he aid their learned counsel namely Mr. Laurent John, learned Ad or the respondent, and Mr. Mjahidi B. Kamugisha, learned State Attorney for the applicant. Having examined closely the three grounds of objections of the respondent’s preliminary objection, I am of the considered opinion that this matter can be disposed of on the first limb only. However, before I 2 address that ground of objection, I think it is important to provide a brief back ground of the matter at hand. The parties in this matter entered into an agreement of service whereby the appellant offered the respondent to render contractual service of collecting revenues from the crops in all wards within Kalambo District Council. The contract had to commence on 13.03.2 nd terminate on 30.06.2017. It is on record that upon the a r the said agreement, the respondent oc f the Resident Magistrate’s Court of S awang awanga (the trial court) before which he su th h of contract of service and among his claims , were the general damages to the tun hs. /=, payment of Tshs. 118,873,300/= bein t an costs of the suit. The tria rt u hearing the evidence from both parties, found in favour of the respondent and adjudged the respondent to pay the applicant the claimed general damages, remittance amount, costs of the case and ordered her to pay interest on decretal sum at the court rate from the date of judgement to the date of full satisfaction. 3 The records of the court below depict that the said trial court’s judgment was delivered on 31st day of October, 2018 and the right of appeal was fully explained to both parties. The applicant then rushed to the High Court to challenge the said decision. However, her appeal was dismissed, save for the amount of general damages which was substituted, thus making the applicant be obliged to pay the respondent Tshs. 65,000,000/= instead of Tshs. 200,000,000/=. Following that decision, nothing was done by the applicant to challenge the decision of this court by Hon. Mambi,J., as a result, the statutory time of appealing against the same lapsed. It appears that in a bid to challenge the said decision out of time, the applicant sought to file an application for grant of extension of time vide Miscellaneous Civil Application No. 8284 of 2024. However, her efforts to have such application be entertained and determined on merit, were halted by a notice of preliminary objection filed by the respondent’s counsel which per the rule of thumb, has to be heard and determined first. Hence, this ruling. On the first ground of preliminary objection, the respondent’s counsel submitted that it is a principle of law that the deceased person cannot legally sue or be sued, but in this case despite being a deceased person 4 one Amri Said Nyambele, as it is proved by a certificate of death attached to the respondent’s counter affidavit, has been sued by the applicant through Miscellaneous Civil Application No. 8284 of 2024 which shows that one Amri Said Nyambele is a respondent. To support the above position, the respondent’s counsel cited the case of Exim Bank Tanzania vs Yahaya Hamisi Mussa, Civil Appeal No. 275 of 2019 (CAT at Dar es Salaam, unreported) in which it was stated that "Cccording to the settled positi suit filed against a dead person is a nuiiity...and it was as if no suit was filed and as such, a legal representative could not be joined and thus, as earlier the sho> not be remedied under Order 1, Mr. Laurence also submitted that despite the attachment of a copy of a death certificate to the respondent’s counter affidavit, there is also a copy of the letters of administration granted to one Ramadhan Said Nyambele by the Urban Primary Court of Sumbawanga through Probate Cause No. 57 of 2021. Hence, he urged the court to take judicial notice on existence of such probate cause, under section 59 (1) (d) of the Evidence Act, Cap 6 R.E. 2022. 5 The learned counsel further referred the court to the case of Bilali Ali Kanguti vs Ahadi Lulela Said and Three Others, Civil Appeal No. 500 of 2021 and submitted that since the respondent is a dead person, the applicant had to sue his administrator of estate whom the law entitles to sue or be sued on behalf of the deceased, as it was stated in the case of Fatuma Thabit Tibyakutendwa obert Kolikako and 4 Others, Civil Appeal No. 154 of 2021 es laam, unreported) in which it was stated inter that: “As intimated above, ac it is only the lawfully appointed legal re 'eceased who can sue and be sued for or on af ed To Mr. Kamugisha, it w s submission that the arguments by the page 3, paragraph 3 of his written submi ion, a n points of facts relating to evidence in regards to deat the respondent one Amri Said Nyambele and appointment of Ramadhan Sai yambele as an administrator of estate which cannot be raised as preliminary objections as it was stated in the case of Mukisa Biscuits Manufacturing Co Ltd v. West End Distributors Ltd (1969) E.A 696 that: 6 “Preliminary objection is in the form of what used to be a demurrer..It cannot be raised if any fact had to be ascertained or if what is sought is the exercise ofjudicial discretion.. " On the strength of the above arguments, the applicant’s counsel submitted that the first limb of preliminary objection does not qualify to be a preliminary objection as it is based on points of facts instead of pure point of law. Hence, according to him, the case of Bilali Ali Kinguli (supra) cited by his learned friend, is distinguishable to the circumstance of the matter at hand. In rejoinder, the respondent’s counsel submitted that it is not true that the first limb of objection does not qualify to be a preliminary objection for the reason that it requires proof to substantiate it, because proof of death is through affidavit which has already been filed by the administrator of the respondent’s estate and, apart from that the said administrator has prayed for the honourable court to take judicial notice of the Probate and Administration Cause No. 57 of 2021 at Sumbawanga Urban Primary Court which appointed him to be the administrator of the deceased’s (respondent) estate. From the above rival arguments, it appears that what is also contested between parties herein, is on the submission that the first limb of 7 preliminary of objection does not qualify to be an objection. It is not in dispute that the law as it stands today, requires that a preliminary objection must be based on point of law and not facts which need to be proved by other pieces of evidence (See: Mukisa Biscuit Manufacturing Co. Ltd (supra) and Ibrahim Abdallah vs Seleman Hamis (Civil Appeal No. 314 of 2020) 2022 T 43 (21 February 2022). However, in our case it is apparent th ise of the respondent on 20.02.2021, on ele petitioned for and was granted the le of ion by the Urban Primary Court of Sumbawa a Vi inistration Cause No. 57 of 2021. Under ces said probate court could not appoint that tor o e respondent’s estate and grant him with lette n in ence of a certificate of death. Hence, fact t a copy of such certificate was attached to the respondent’s does not mean that more evidence is needed at this time to prove that the respondent is no longer alive, but what the respondent’s counsel intends to do, is to draw the attention of the court that the applicant has sued a dead person, which is bad in law for it makes the instant application to be a nullity. 8 Also, since the applicant’s counsel has not disputed the fact that one Ramadhan Said Nyambele was appointed as an administrator of the respondent’s estate, then it obvious that the applicant strayed into an error by suing one Amri Said Nyambele, as it appears in the citation of parties to this application, instead of the former’s administrator of estate, which renders the instant application to be a nullity as it was the position in the case of Exim Bank Tanzania Limited (supra) and Bilali Ali Kinguti (supra). Besides that, section 59 (1) (d) of the Evidence Act provides that: 59. - (1) A court shall take judicial notice of the following facts- (a) ,,,N/A (b) ,,,NA (c) ,,,N/A (d) seals of al the courts of the United Republic duly established and of notaries public, and all seals which any person is authorised to use by any written law; And, subsection (3) of section 59 of the Evidence Act provides that: “(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person 9 produces any such book or document as it may consider necessary to enable it to do so”. The above provisions of the law entails that the court is entitled to take judicial notice of seals of all the courts of the United Republic duly established and, that if it is called upon by any person, like in the case at hand, to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The respondent’s counsel in the course of addressing the first ground of appeal, urged the court to take judicial notice of the letters of administration granted to one Ramadhan Said Nyambele whom such document describes as an administrator of the estate of the late Amri Said Nyambele whose name ought to have been cited as the respondent had he not expired. Moreso, the respondent’s counsel has attached to his client’s counter affidavit a certified copy of letters of administration granted to one Ramadhan Said Nyambele by the Urban Primary Court of Sumbawanga through Probate and Administration Cause No. 57 of 2021 and, the counsel for the applicant has not objected existence of such probate court document. 10 It is due to the foregoing submissions, that I am inclined to accept the invitation of the respondent’s counsel and proceed to take judicial notice of the existence of the said Probate and administration cause as well as the letters of administration which bears the official stamp of the Urban Primary Court of Sumbawanga indicating that one Ramadhan Said Nyambele was actually appointed and granted of administration in respect of the estate of the late Amri Said Coming to the main contentious issue, i on rior to his demise, one Amri Said Nyam e and prosecuted his cases both in RM’s Ci se 2017 before the trial court and Civil Appeal se . 2 fore this court against the applicant, and er. owever, it is unfortunate that he died before Civil Application No. 8284 of 2024. In the circu ance, bent upon the applicant to sue the admini tor of that deceased person and not the dead person. It follows the re, that since I have found and indicated above that the application lodged by the applicant shows that it is against a dead person, I find and hold that the same is incompetent before this court for being a nullity. Such position of the court is fortified by a number of authorities including, but not limited to the case of Fatuma Thabit 11 Tibyakutendwa (supra) and Exim Bank Tanzania Ltd (supra). Having said so, I also find that the first limb of objection is meritorious and sufficing to dispose of the present application. As for the way forward, the counsel for the respondent has implored me to dismiss the present application with costs for being incompetent before this court. However, with all due respect to him, I am unable to accept his invitation. This is because the remedy for an incompetent application is to struck it out and not dismiss it. The Court of Appeal in the case of Exim Bank Tanzania Limited (supra) stated inter alia, that: "...although a suit preferred against a dead person is a nullity it is as well incompetent and not capable of being dismissed. Given the remedy herein was to strike out the suit instead of dismissing it so as to enable the appellant a chance to file a suit against the legal representative of the deceased...In the premises, it is our considered view that, it was not warranted to condemn the appellant to suffer costs following the dismissal of the suit which was in itself erroneous.” In the same spirit, since it has been found in this case that the application at hand was preferred against a dead person which renders 12 it a nullity, the same is as well found to be incompetent before this court and therefore, the respondent’s preliminary objection is sustained. Consequently, the applicant’s application is hereby struck out with no order as to costs. It is so ordered. DATED at SUMBAWANGA this 25th day of February, 13