EMMANUEL PATRICK SWAI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY)

AT ARUSHA LAND REVISION NO. 17940 OF 2024 (C/F the District land and Housing Tribunal, Application No. 308 of 2019)

BETWEEN EMMANUEL PATRICK SWAI........................................................... APPLICANT

VERSUS PATRICIA ISMAIL MATOGO (ADMINISTRATRIX OF THE ESTATE OF THE LATE ISMAIL NKYA)........................... 1st RESPONDENT MOHAMED FARAJI.................................................................. 2nd RESPONDENT FIRST WORLD INVESTMENT CO. COURT BROKERS, AUCTIONEERS, DEBT COLLECTORS....................................... 3rd RESPONDENT

RULING 12/09/2024 & 17/10/2024 MWENDA, J.: This is the ruling in respect of the preliminary objection raised by the counsel for the 1st respondent to wit: 1. Kwamba, maombi yaliyoletwa Mahakamani yapo nje ya muda.

2. Kwamba, maombi haya yameletwa kwa kukinzana na amri ya mahakama hii tukufu ya tarehe 24 June 2024, mbele ya Mh. Mwaseba, J. 1 | Page During the hearing of the raised points of preliminary objection, Mr. RICHARD PATRICE MOSHA, learned counsel appeared for the applicant whilst Mr. PETER ALFRED BANA, learned counsel represented the 1st and 3rd respondents. With the consent of the parties the hearing proceeded by way of written submissions. A scheduling order was fixed, and each side complied. The contents of their respective submission shall be considered in the cause of determining the raised points of objection. Starting with the 1st point of objection, Mr. Bana submitted that this application is time barred. According to him the present application was presented before the court on 24/7/2024 and the court fees was paid on 25/7/2024 without seeking an extension of time to file the same. It was his further submission that as per numerous court's decisions such as AHMED MOHAMED SUUD AND ANOTHER V. MOHAMED SUUD AND TWO OTHERS, CIVIL APPLICATION NO. 12/17 OF 2019 the Court of Appeal have held that the document is taken to have been lodged on the date when it was endorsed by the Registrar on payment of the prescribed court fees. According to him, the applicant delayed to file this application for two days. He referred this court to the case of JUMA LU POLI V. CHARLES NGOBETSE,

CIVIL APPEAL NO. 487 OF 2022 (CAT at KIGOMA, 2 | Page UNREPORTED) where the court held that an appeal which is filed out of time need not to be entertained. He thus, prayed for this point of objection to be sustained. Regarding the 2nd point of objection, it was Mr. Bana's submission that the order of the court needs to be respected and complied with not only by the parties but also even by the court itself. He said that the applicant was given 30 days to file his application on 24 June 2024 which expired on 23 June 2024, but this application was filed on 24 July 2024 and paid court fees on 25 July 2024. He added in that the applicant had ample time of 30 days to do so but he negligently slept over his own rights by ignoring the court's orders. The learned counsel concluded by praying the points of objection to be sustained and the present application to be dismissed with costs. Responding to both points of objection, Mr. MOSHA submitted that this application was filed within time on 23/07/2024 as per CMS and assigned number 20240723000050958. He also conceded that the fee was paid on 24/7/2024 and was marked admitted on 25/7/2024. He added in that as per Section 19 (1) of the Law of Limitation Act, Cap 89 R.E 2019, in computing the period for any proceedings, the day from which such 3 | P age period is to be computed shall be excluded. It was his further submission that, as

the leave was granted on 24/6/2024, 30 days expired on 24/ 7/2024, thus this application was filed within the time. He supported his argument by citing the case of KEC INTERNANTIONAL LIMITED V. AZANIA BANK LIMITED, Commercial Case No. 152 of 2015 (Reported at Tanzlii). Further to that Mr. Mosha submitted that as the application at hand was filed through electronic filing system, it was timey filed on 23/7/24 and hard copies filed on 24/7/2024. He referred this court to Rule 21 (1) of the JUDICATURE AND APPLICATION OF LAWS (ELECTRONIC FILING) RULES, GN NO. 148 OF 2018 which provides that "...a document shall be considered to have been filed if it is submitted through the electronic filing system before mid-night East Africa Time on the date it is submitted unless a specific time is set by the court." He thus prayed the raised preliminary points of objection to be overruled and dismissed with costs. 4 | Page Having heard the rival submission from the learned counsels for the parties, this court will now determine as to whether the present appeal was filed in time. In principle, when computing the date of filing the matters filed electronically, the time for the filing accrues from the date when the control number for payment of the necessary fees was generated in the system. This position was stated by the court of appeal in the case of NMB BANK PLC VS FABIOLA DEOGRATIUS MAAMI

T/S FABIOLA CURIO SHOP (Civil Application No. 152/02 of 2024) [2024] TZCA 854 (5 September 2024) where it was held inter alia that: "However, in terms of rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 the time for the filing accrues from the date that the control number for payment of the necessary fee was generated in the system, in this case on 29th December 2023 hence the application assigned the number." [emphasis mine] Guided by the above recent position notwithstanding, this court is of the view that this application is not time barred as it was filed within the 5 | Page prescribed time due to the following reasons. One, that, Although as it is agreed by both parties herein, this application was filed online on 23/7/2024 and the control number for paying court fees issued on 24/07/2024,since this court issued an order on 24/6/2024 to the applicant to file his application for revision within thirty (30) days from the date of this decision, then 30 days'time started to run on 25/06/2024, a day after the said ruling was made. This is as per Section 60 (1) (b) of the Law of Limitation Act which provides that: "Where a period of time is expressed to be reckoned from, or after a specified day, that day shall not be included in the period." [Emphasis is mine]. That said therefore, counting from 25/06/2024 to 24/07/2024 when this revision was

filed, this application was filed within time and in compliance with the court's order dated 24/06/2024. For the above reasons, the raised preliminary points of objection by the counsel for the 1st and 3rd respondents are hereby overruled. The court will proceed with the determination of this application on merit. Costs to follow the events. 6 | Page It is so ordered. DATED and DELIVERED at ARUSHA this 17- day of October 2024. 17/11/2024 7 | Page