CHARLES KASANDIKO vs Mpuya P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUB REGISTRY OF SHINYANGA

AT SHINYANGA MISC LAND APPLICATION No. 28450 OF 2024 (Originating from the Order/Ruling of this Court in Land Appeal No. 3742 of 2024 dated the 21st May 2024) CHARLES KASANDIKO.…………….………………………. APPLICANT (Administrator of the estates of the late Kasandiko Malugu)

VERSUS MPUYA MILIKUDUHU ……………………….………1ST RESPONDENT MARIDADI SABUNI ………………………………….2ND RESPONDENT

RULING 11th February, & 10th March, 2025 Massam, J: - The applicant filed application for extension of time within which he can file an application for setting aside the ex-parte order in Land Appeal No. 3742 of 2024. The application is made by way of chamber summons under Section 14 (1) of the Law of Limitation Act Cap 89 R:E 2019 accompanied by an affidavit sworn by Charles Kasandiko supporting the application and opposed by the counter affidavit dully sworn by 1st and 2nd respondents. When the respondents filed their counter affidavit raised a preliminary objection on point of law; - 1. That, since there is no dispute that Appeal No. 3742 of 2024 was time barred and the same was 1 dismissed by this Honourable court on that ground, so relief sought by the applicant cannot be granted. It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily. See: the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011, The Bank of

Tanzania Ltd vs. Devram P. Valambhia, Civil Application No. 15 of 2002, Khaji Abubakar Athumani vs. Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 and Modest Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 (all unreported). During the hearing of this application the applicant enjoyed legal service of Mr. Frank Samweli learned advocate whilst the 1st and 2nd respondents were represented by Mr. Ilanga Mdimi advocate and the said Preliminary Objection was argued orally. 2 Arguing in support of PO Mr. Mdimi said that the relief sought by the applicant cannot be granted because this court before Mahimbali J, dismissed the appeal for being filed out of time, it was dismissed under Section 3 (1) of the LLA and the only remedy was to file this appeal Court of Appeal and not here. Again, Mr. Mdimi said that the applicant came to this court wrongly, because Appeal No 3742 /2024 was heard ex-parte and ex-parte order is appealable under section 70 (2) of CPC. He fortifies his argument by referring the case of Dangote Industries Ltd Tanzania vs Warnercom (T) Ltd, Civil Appeal No. 13 of 2021 in page No. 6 where it was held that an ex-parte judgment is appealable under section 70 (2) of the CPC and the applicant was required to appeal to the Court of Appeal against that ex-parte judgment and not to come back to

this court. Moreover, Mr. Mdimi said that the applicant counsel does not know the different between struck out and dismissal, so in this case this court finalized this case on 21.5.2024. He cemented his argument by referring the case of Yahya Khamis vs Hamida Haji Iddi, Civil Appeal No. 225 of 2018 at page no 6-7 the Court of Appeal gives the difference between struck out and dismissing, this court on 21. 5.2024 dismissed the appeal 3 so the case was finalized, applicant is prevented to come back to this court. Finally, he prayed this application to be dismissed. On his side, Mr. Frank Samweli advocate argued that respondents’ counsel had interest with case because he heard this case as the trial chairman. Also in that appeal the issue was raised but he was not accorded right to be heard. Apparently, Mr Frank argued that they brought an application for extension of time to set aside ex-parte order and the respondents’ advocate did not give the reasons why this court does not have power to entertain this application. Again, Mr. Frank submitted that in the case of Dangote Industries at page No 8, discussed the way of dealing with the ex-parte judgement but they decided to set aside this ex-parte order because the matter was within the time. Additionally, Mr. Frank said that the advocate who represented respondent has no locus as he was before a chairman and he heard this matter

before and now he is coming as the advocate of the same case. Moreover, Mr. Frank argued that the case of Yahaya Khamis cited by the respondent’s counsel is distinguishable with the case at hand as it discussed the different between striking out and dismissing but it never says that when the case is dismissed, it cannot be restored. Also Mr. 4 Frank submitted that the P.O is contrary to the case of Mukisa Distributors case because it raised issues of fact and not law. Finally, he prayed this court to declare that the respondent’s advocate has interest and nullify what was done by the advocate and if the court finds out that this advocate has right to did what he did, then dismiss the P.O for want of merit as the same based on the facts. In the way of rejoinder, Mr. Mdimi said that he had no any interest with this case and the case which determined ownership was entertained by Kaare chairman and not him but also the same was not raised in the trial court and he insisted the applicant was required to appeal to the CAT, and not to bring this application because the matter was dismissed by this court. Moreover, Mr. Mdimi said that the said appeal was time barred, and if Mr. Frank finds that respondents’ counsel had an interest and he was not given the right to be heard, that could be a good ground of appeal to the CAT. Finally, he said that PO is pure point of law and not the facts

and he insisted that this court has no power to entertain this case as it was already dismissed by Mahimbali J, and he prayed this court to dismiss this application with costs. 5 Having heard and consider the submissions by both parties, the issue to determine is whether the preliminary objection has merit or not. Mr. Mdimi argued that the appeal was dismissed under section 3 (1) of the LLA and the only remedy was to file this appeal Court of Appeal and not here. Also Land Appeal No 3742 /2024 was heard ex- parte and ex-parte order is appealable under section 70 (2) of CPC. However, Mr Frank argued that they brought an application for extension of time to set aside ex-parte order and the respondents’ advocate did not give the reasons why this court does not have power to entertain this application. I have scanned submission from both parties and going through records. It is undoubted that the Land Appeal No. 3742 of 2024 was dismissed under Section 3 (1) of the Law of Limitation Act by this court before Mahimbali, J on 21st May 2024 for being time barred and the same was heard ex-parte. Thus I agree with Mr Mdimi advocate that the matter was determined to its finality, the remedy available was for the applicant to appeal to the Court of Appeal as it is stipulated under section 70 (2) of CPC. See the case of Yahya Khamis vs Hamida Haji Iddi, (supra) and Dangote Industries Ltd

Tanzania vs Warnercom (T) Ltd, (supra) are applicable in the case at hand 6 because discussed the effect of dismissal order and the ex-parte order are appealable. More on that, the applicant’s counsel said that the appeal was not time barred. Thus I disagree with the applicant’s counsel that the remedy available was to file application for extension of time to set aside ex-parte order instead of appeal and the consequence for a time-barred suit, as per section 3(1) of Law of Limitation Act is a dismissal. See the case of M/s. P & O International Ltd v. The Trustees of Tanzania National Parks (TANAPA) (Civil Appeal 265 of 2020) [2021] TZCA 248 (9 June 2021). Again, on the issue that the respondent’s counsel had interest with the case because he had the matter as the chairman. In my perusal I find that Land Application No 6/2020 was determined by Hon J.T Kaare Chairman on 18th December 2023, but the ruling delivered by the respondent counsel was advisory to the parties to file probate cause in order to sue on behalf of the deceased. In the premises I don’t see if the respondent counsel had interest with the said case, however the applicant counsel did not cite any law that prohibit the respondent counsel to represent the respondents. Moreover, on the issue that the P.O based on facts and not point of law. I am aware that preliminary objection must be pure point of law 7 and not

facts which can be ascertained by the court. See the case of Mukisa Biscuits Manufacturing vs. West End Distributors Ltd (1969) EACA 696, where it was held that; “The preliminary objection must raise a pure point of law.” ….A preliminary objection is in the nature of what used to be a demurrer It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. Now, coming to our case at hand, the appeal was dismissed for time barred under Section 3(1) of the Law of Limitation Act and the remedy was to appeal and not to set aside the dismissal order as the applicant counsel argued that the appeal was within the time. According to that this court agree that P.O raised was pure point of law which can to be ascertained by court and hence meet the legal requirement in the above case. With all these, I pronounce that preliminary objection has merit and it is upheld. The application is dismissed with costs. It is so ordered. DATED at SHINYANGA this 10th day of March, 2025. 8 R. B. Massam Judge 9