dotto abdallah rashid vs ramadhani kiholanzi 2020 tzhclandd 152 26 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION No. 192 of 2019 DOTTO ABDALLAH RASHID (Administratix of the Estate of the late Asha Jumanne) ........ ....................APPLICANT VERSUS RAMADHANI KIHOLANZI................... ..............RESPONDENT Date of Last Order: 19.03.2020 Date of Ruling : 26.05.2020 RULING V.L. MAKANI. J The applicant DOTTO ABDALLAH RASHID, Administratix of the Estate of Asha Jumanne, has moved this court under Order XXII, Rule 3(1), (2) and Rule 9(2) of the Civil Procedural Code, CAP 33 RE 2002 (the CPC) seeking for the following orders: 1. An order to set aside abatem ent against the second Appellant/respondent in Land Appeal No.50 o f 2012 and M iscellaneous Land Application No.471 o f 2016. 2. An order to jo in leg al representative o f the deceased second Appellant/Respondent in Land Appeal No.50 o f 2012 arid M iscellaneous Land Application No.471 o f 2016 and other subsequence applications incidental to the pending appeal and applications. 3. Costs o f the application abide the results o f this application. 4. Any other order this Honorable Court m ay deem fit and ju s t to grant. Simultaneous with the filing of the counter-affidavit, the respondent raised preliminary objection on points of law as follows, that: 1. The application has been overtaken by events. 2. The application is tim e barred. This ruling is in respect of the preliminary objections which were argued by way of written submissions. The submissions by the respondent were filed by Mr. David Ntonge, Advocate, while those by the applicant were drawn and filed by Mr. Symphorian Kitare, Advocate. Submitting for the first ground of objection, Mr. Ntonge said that, on 06/10/2016, the late Asha Jumanne together with other applicants filed Application No. 471 of 2016, seeking among other orders, grant of an extension of time to file application for leave to appeal to the Court of Appeal of Tanzania against the decision of 08/01/2016 by Judge Mgetta. He added that the said Application No. 471 of 2016 was struck out on 13/03/2019 for being incompetent. He averred further that, the applicant has never appealed against or taken any other cause against the said order. He said that, since Application No. 471 of 2016 which the applicant applies to be joined is no longer in 2 existence, then the applicant's application at hand cannot stand or serve any purpose since the main application is dead. On the second point Mr. Ntonge said that, the application is time barred. He said the First Schedule, Part III, Item 16 of the Law of Limitation Act provides 90 days for the applicant to be joined as a Legal Representative of the deceased person and if there is no such application then the suit abates. Mr. Ntonge said according to applicant's application, the deceased Asha Jumanne passed away on 24/09/2012 and this application was filed on 05/04/2019 which is almost 2520 days, equal to 7 years since Asha Jumanne passed away. He insisted that the application is time barred. He prayed for the application to be struck out with costs. In reply Mr. Kitare said that the applicant is not a party to Miscellaneous Application No.471 of 2016, therefore the claim that the present application is overtaken by events is off target. That since the above application was struck out the remedy is not to appeal but to institute the application afresh. However, he added that, the applicant did not institute application afresh in the event one of the parties died. Accordingly, the applicant filed the present application so that if it is heard and decided in his favor they would institute the application afresh. Mr. Kitare claimed that the application is not dead as argued by the respondent. Further, he said that the present application cannot be said to have been overtaken by events because the applicants stiil have intention to appeal against the decision in Land Appeal No.50 of 2012, the said 3 intention is reflected by the pending application for extension of time to file a Notice of Appeal, that is Misc. Land Application No. 213 of 2016. He insisted that, though leave to appeal which was Misc. application No.471 of 2016 was struck out, but still the applicant intends to institute it afresh if granted. On the second point of preliminary objection he stated that, according rule 3(2) as read together with sub rule (1) of the CPC, it is true that item 16, Part III of the first Schedule to the Law of Limitation Act provides 90 days for applying to be Legal Representative of the deceased plaintiff, and if he does not apply the suit abates. However, in view of rule 9(2) of the CPC the Plaintiff can apply to set aside the abatement. He added that the above provision when read together with rule 3(2) of the CPC an application for setting aside the abatement is made when a person fails to apply to be the Legal Personal Representative of the deceased's plaintiff within 90 days like in the present case. He added that the words "otherwise as it thinks fit" appearing at the end of the provision gives discretion to court to order otherwise, though judiciously. He prayed for dismissal of the objections and be granted her prayers in the Chamber Summons. The applicant did not file any rejoinder. Having gone through the rival submissions by the parties, I find it pertinent to firstly deal with the second point of preliminary objection that the application is time barred. It is not in dispute that the 2nd respondent in Land Appeal No. 50 of 2012 and the 2nd respondent in 4 the subsequent applications incidental to that appeal died on 24/09/2012, and that the applicant herein was appointed the administratix of the estate of the 2nd respondent on 21/02/2018. As the administratix, she wants to take on the position of the deceased in Land Appeal No.50 of 2012 and incidental applications thereto. However, this right is not automatic, as it is governed by the Law of Limitation Act and the CPC. Order XXII, rule 3(1) of the CPC provides that: " Where one o f two or more p la in tiff dies and rig h t to sue does not survive to the surviving plaintiff...the court on application made in that behalf, sh all cause the legal representative o f the deceased p la in tiff to be made a party and proceed with the su it" Item 16, Part III of the first Schedule to the Law of Limitation Act clearly provides: " Under the C ivil Procedure Code, to have a legal representative o f a deceased party, whether in a su ito r on appeal, to be made a p a rty .....ninety days" From the above quoted provisions, it is clear that the time within which one should apply to be joined in a suit as a Personal Legal Representative is 90 days. Mr. Kitare is not disputing that the applicant is out of time, what he is trying to state is that, after the lapse of 90 days one can apply to set aside the abatement order. Indeed, that is correct, but one cannot do so without first being the Legal Representative of the deceased. As correctly submitted by Mr. Ntonge, the applicant cannot apply for an order to set aside the abatement order against the applicant and at the same time be automatically joined as a personal legal representative while 90 days s has lapsed. In my considered view, the proper procedure was for the applicant to first apply for extension of time within which to be joined as a personal legal representative and then after being the legal representative apply to set aside the abatement order. It would have been different if the applicant was still within the 90 days provided by the law as she would have been joined automatically as a party and the application to set aside the abatement order would have been the one to be considered. But this is not the case as it is six years since the death of the 2nd plaintiff/respondent from September, 2012 to April, 2019 when this application was filed. The law is silent as to when time starts to run. However, in the case of Sahel Said Nahdi vs. National Microfinance Bank Pic & Another, Commercial Case No. 1 Of 2015, (HC-Commercial Division-DSM), Hon. Sahel J (as she then was) had this to say: " The application to which item 16 refers fo r the purpose o f the m atter a t hand is the application to be made under Order X X II Rule 3 o f the C iv il Procedure Act, CAP 33 that is, where one o f two or more plain tiffs die. This means that where one o f two or more p la in tiff die an application fo r leg al representative has to be made i.e. the application has to be made upon the death o f the deceased plaintiff. The applicant has u p to ninety davs to make such application w ithout assigning anv reason." It is apparent that time starts to run upon the death of the deceased plaintiff. And as already said hereinabove six years has elapsed since the death of the 2nd respondent/plaintiff and no Legal Representation was sought within the 90 days. In the circumstances, as already 6 elaborated above, the applicant herein was supposed to first apply for extension of time to apply for legal representation before praying for the abatement order to be set aside and to be joined in the appeal and the subsequent applications. From the foregoing, I find the second ground of preliminary objection meritorious and it disposes of the application. I shall therefore not labour on the remaining objection. In the result and for the reasons I have endeavoured to address, the second preliminary objection on a point of law is upheld, and the application is struck out with costs for being time barred. It is so ordered. // // !l V.L. MAKANI JUDGE 26/ 05/2020 7