fadhili said mnaroadministrator of the estate of the late somoe yusufu napunda vs abdallah omary mchora another 2023 tzhc 19497 31 july 2023

THE UNITED REPUBLIC OFTANZANI-A JUDICIARY IN'THE HIGH COURT OF TANZANIA (MTWARA<DISTRICT REGISTRY). AT MTWARA CIVIL REVISION NO.1 OF 2023 FADHILI SAID MNARO (Administrator of the Estate of the late SOMOE YUSUFU NAPUNDA)......>........... ....APPLICANT VERSUS ABDALLAH OMARY MCHORA....-....'..,....................1ST RESPONDENT ASNI OMARY MCHORA (Administratix of estate of the late OMAR AHMAD MCHORA)...............................,...2Ne RESPONDENT RULING 27 & 31/7/2023 -LALTAIKA, J. The applicant herein, FADHILISAID MNARO (Administrator of the Estate of the late SOMOE YUSUFU NAPUNDA) is moving this court under Section 30(1) of the Magistrates' Courts Act [Cap. 11 R.E. 2019] and any other enabling provisions of the law. The application is supported by an affirmed affidavit by the applicant. The applicant is praying for this court to grant the following orders 1. That this Honourable Court may be pleased to call and inspect the records ofthe proceedings in "Maombi ya Marejeo No.3/2022 (Imetokana na Shauri halisi ia page 1 of 11 Mirathi Na. 28/2017 kutoka Mahakama ya Mwanzo Nachmgwea Hiyokaiiwa Nachingwea Mjlni) attached hereto and satisfy itself of the correctness, legality and propriety thereto and make the necessary orders, 2. Costs of this application. 3. Any other and further reliefs the Court may deem fit and necessary to grant. On the other hand, the first and second respondent, respectively have filed the Notice of Preliminary Objection accompanying the joint Counter affidavit resisting the application. The preliminary objection is that "the application by the applicant is hopeless time barred". On 15 June, 2023 the learned counsel consented that the preliminary objection' be disposed Of by way of written submissions of which they complied. More so, on 27/7/2023 the learned counsel appeared for necessary orders. Submitting in support of the preliminary objection, Mr. Issa Chiputula contended that the application for revision to the High Court on matters originating from: Primary Court is regulated by the Magistrates' Courts Act [Cap. 11 R.E. 2022] and the Law of Limitation Act [Cap. 89 R.E. 2019]. He stressed that it is a well settled law that the time limitation for the Revision challenging the correctness, legality and propriety of decision of the Primary Court is only 60 days as described in the first schedule and second column of Part III of the Law of Limitation Act. The learned counsel went on and argued that revision is among of the applications with no period of limitation provided in the Act or any other law then the above provision above applies. Mr. Chiputula submitted that the impugned judgment was delivered on 12/12/2022 by Nachingwea District: Court while the present application was Page 2 of 11 delivered on 20/2/2023. He contended that the revision was filed within 71 days which was contrary to the mandatory requirement described by the Law of Limitation Act. To fortify his submission, the learned counsel cited the case of Hational iBank of Commerce v. Sand ril'd in Meg hji [1,998] TLR 503, it was stated that the period for applying for revision is 60 days after delivery of the decision sought to be impugned. The learned counsel maintained that the applicant has delayed eleven (11) days. Mr. Chiputula insisted that the case at hand was filed beyond the prescribed period and thus ought to be dismissed with costs. In addition, the learned counsel for the respondents contended that section 3(1) of the Law of Limitation Act is very clear that any application filed out of time ought to be dismissed. He referred this court to the case of Barclays Bank Tanzania Limited vs Phyli^iah; Hussein Mcheni, Civil Appeal No. 19/2016, TZCA Dar es Salaam (unreported). Furthermore, Mr. Chiputula submitted that the essence of having time limit in pursuing the matter was well addressed in the case of Stephen Masato Wasira v. Joseph Sinde Wanoba and the Attorney... GeneraL[1999] T.L.R. 334 whereby the court insisted that litigation has to come to an end and cannot be open ended, otherwise the respondent would be prejudiced, and much cherished public policy that litigation must come to an end like life. The learned counsel contended that in the case of Fortunatus Lwanyantika Masha and Another v. CSaver Motors Limited, Civil Appeal No. 144' of * 2019 Court of Appeal of Tanzania at Mwanza (unreported) at page 15 cited the case of JohncCprnel/y; A.t'Grevo.(T) Limited, Civil Case NO.70 of 1998 and it was held that; "However, Page 3 of 11 unfortunate it may be for the plaintiff; the law of limitation is on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web." In finalizing the submission for the preliminary objection the learned counsel referred this court to the case of Denis T. Mkasai vs. Farida Hamza Mkasa (Admimstratix of the Estate of the Late Hamza Adam) .and Another, Civil Application No.46/08 of 2018, the Court of Appeal of Tanzania at Dar es Salaam. To this end, Mr. Chiputula contended that the revision is time barred thus prayed the same to be dismissed with costs. In response, Mr. Taratibu submitted that the objection should not be allowed because while it is coached in applying technicalities to frustrate the road to justice. The learned counsel stressed that this court being the only an impartial organ inherently bestowed with overriding and adjudicating powers to uphold law, justice, fairness and equity. He insisted that this court has the power to ensure that justice is seen to be done to safeguard the interests of all the legal heirs. More so, Mr. Taratibu stressed that the respondents are hiding under the provision of section 3(1) of the Law of Limitation Act [Cap. 89 R.E. 2019] and prays the application to be dismissed. The learned counsel contented that section 3(1) of the LLA is to be read and interpreted "subject to other provisions of the same Act". Thus section 3(1) of the LLA:.has to be read together with Part IV of the Law of Limitation Act which provides for computation of period of Limitation and specifically the provisions of section 19(2) which excludes certain periods such a period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. Page 4 of 11 More so, Mr. Taratibu submitted that the. requisite documents in respect of the decision intended to be challenged by way of revision were secured by the applicant on 7/2/2023. He went further and submitted that as well as elaborated in the adopted affidavit and supported by "annexurture FSM- 9" which constitutes a letter dated IP January, 2O23.The said letter was received by the court on January,; 2023 and a copy of the register which shows that, the ruling: was collected/on /7/2/2023.. The learned counsel contended that the application was filed within time as the period of time spent for obtaining the requisite is to be excluded. The learned counsel for the applicant submitted that the case of Denis T.'Mkasa vs, Farida Hamza Mlcasa of the Late Hamza Adam) and Another (supra) is distinguishable to the matter at hand since it involved the application filed in the Court of Appeal while the present application is filed in the High Court. In addition Mr. Taratibu submitted that in that case provisions of Rule 65(4) of the Court of Appeal Rules which are not applicable in this court, in which the objected application was made. The learned counsel went on and submitted that the case of Fortunatus Lwa.nyantika Masha Sr john^oshi Qbongo v. Ciaver Motors Limited, Civil Appeal No,144/2019(CAT-Mwanza) where the main controversy was the validity of the sale agreement. However, the cited case as observed at pages 7,8, 12, 14; involved the interpretation of Order VII Rule 6 of the Civil Procedure Code [Cap. 33 R.E. 2019] containing a paragraph indicating a ground upon which exemption from limitation could have been relied to justify delay, as such, this case acknowledged the provision of section 19(2) of LLA. Rage 5 of 11 To bolster his argument, the learned counsel cited the recent decision of the Court of Appeal of Tanzania sitting at Tanga in Dar Express Co. Ltd V."' Mathew Paulo Mbaruku, Civil Appeal No.132/2021. He contended that the cited case discussed extensively the provisions of section 19(2) of the Law of Limitation Act. The learned counsel stressed that the Court approved the cases of Mohamed Sailm v. Jumanne Omary Mapesa, Civil Appeal No.345/2019 and Alex Sehkord &. 3 Others v. Eliambuya Lyimo(admihistrator .of Estate of Fredrick Lyimo, Deceased) Civil Appeal No,16/2017(both unreported). Mr. Taratibu submitted, that on the last paragraph, of page 5 and first paragraph of page 6 of Dar Express Co. Ltd v. Mathew Paulo Mbaruku's case (supra) the Court observed that the learned judge referred to two schools of thoughts maintained by the High Court on whether exclusion of certain periods of time under section 19(2) of the Act is automatic or not, subscribed to the latter. The learned counsel submitted that the Court maintained the position that the exclusion is automatic. Finally Mr. Taratibu submitted that the learned counsel for the respondents did not realize on the strength of section 3(1) of the LLA ready together with section 19(2) of the same law as well as the Overriding Objective Powers of this court on the need to avoid unnecessary technicalities which hinder the ends of justice. He also invited this court to overrule the preliminary objection with costs and order the application to proceed on merit. He insisted further that is the only way of safeguarding the interests of these vulnerable heirs who face the risk of being interfered with right of enjoyment of the suit property. Page 6 of 11 In a rejoinder, Mr. Chiputula reiterated what he submitted in chief. However, he submitted that the issue of time limitation is not a mere matter of procedural technicalities but very fundamental one. He went on and argued that where the issue is that of appeal or application is time barred this means that the court cannot entertain it for. lack of jurisdiction. The learned counsel for the respondents stressed that when the issue of time limit is raised then the court cannot apply overriding principles. More ever, Mr. Chiputula contended that the present application which is time barred for eleven days cannot be cured under section 19(2) of the LLA and the cited cases of Dar Express €o« Ltd v .Mathew Paulo Mbaruku.'The learned counsel insisted that the authorities are irrelevant and very distinguishable from the case at hand. First, section 19(2) of LLA is on exclusion of the time requisite for obtaining a copy of the decree or order appealed or sought to be reviewed only. He maintained that, applications for revision the provision of section 19(2) does not apply. Two, in Dar Express case the Court of Appeal was explaining the requirement of section 19(2) while dealing with appeal from the High Court while the present case is on application for revision from the decision emanated from the District Court to the High Court. Three, the case of Dar express the Court said section 19(2) stated that the exclusion is automatic as long as the applicants has proved the dates of the critical events for reckoning of the prescribed, limitation period. He insisted that these are dates on which a copy of the decree or judgment was requested and the date of supply of the requested documents. Mr. Chiputula submitted that in the present matter the applicant failed to prove his diligence after he became aware of Page 7 of 11 the existence of the judgment of the District Court. Mr. Chiputula submitted that.the law presumes him to be aware on the existence of the said judgement after its deliverance. To this end, the learned counsel prayed this court to allow the preliminary objection with costs. I have dispassionately considered submissions by both parties I am inclined to decide the merit or otherwise of the preliminary objection. The present application is for revision of the decision of the District Court which dealt with the matter from the Primary Court. I am also aware of the law applicable for time to apply for a revision as submitted by the learned counsel of the respondents. I am also aware that time limit for revisions is regulated by the; Magistrates7 Courts; Act [Cap. 11 R.E. 2019] and the Law of Limitation Act [Cap.89 R.E. 2019]» In addition, it is undisputed that the applicant had filed the present application on 71 days after the impugned decision was delivered by the District Court of Nachingwea while the prescribed time for filing an application for revision was 60 days. It is true that time for application for revision is provided under item 21 of the first and second column of Part III of the Law of Limitation Act provides "Application under the Civil Procedure Code, the Magistrates' Courts Act or other written law for which no period of limitation is pro vided in this Act or any other written law.............Sixty days" Based on the above cited law and facts, it is quite clear that the applicant delayed 11 days to institute his application for revision for the matter originated from the Primary Court. I also know that the applicant Page 8 of 11 was not part to the impugned decision. However, the impugned decision affects the rights of the beneficiaries of the late Somoe Yusufu Napunda. Now, the next question is whether section 19(2) of the Law of Limitation Act is applicable in the present case as argued by Mr. Taratibu. For the interest of justice and easy of reference section 19(2) reads "In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded." It is very true that the above provision of law is applicable on matters of appeal or review of the judgment. The law is clear that the time requisite: for obtaining a copy of the decree or order appealed from or sought to be reviewed shall be excluded. Being aware of how section 19(2) of the Law of Limitation Act is applicable. Now, I should clearly and firmly state that the learned counsel could not have relied on the application and benefits of section 19(2) of LLA due to the fact application for revision is not covered. Apart from that, as I have said before that the applicant was not party to the impugned judgment. I know that he ought to have applied for an extension of time. However, the learned counsel , has contended that the applicant wrote a letter to be supplied with the impugned judgment on 11/01/2023 while he received the same* on 07/02/2023. I am very aware that section 3(1) of the LLA attracts dismissal in applications like the present one. However, at this juncture I am interested with what the Court of Appeal of Tanzania has recently decided in the case of es Salaam Page 3 of 11 Express Ltd. vs Mathew Paulo Mbaruku (supra), the Court stated that:- "...In addition, courts should be more inclined to have cases heard and finalized on merits when the taw permits such a course, in line with the overriding objective or oxygen principle. Even before the coming into being of that principle this Court discouraged over reliance on technicalities at the expense of substantive justice. In EHas Tibende/ana v. The Inspector Genera/ of Police & The Attorney Genera/[2013] T.L.R 157, the Court cited with approval the case of Microsoft Corporation v, Mitsumi Computer Garage Ltd., (2001) 2 EAR 467 and reproduced the following passage from it: - "Rules ofprocedure are the handmaidens and not the mistresses of justice. They should not be elevated to a fetish... Theirs is to facilitate the administration ofjustice in a fair, orderly and predictable manner, not to fetter or choke it... " In that case, the Court took into consideration the provisions of the Constitution of the United Republic of Tanzania, 1977, which we are also mindful of in the instant case." Based on the above observation and circumstances of the application at hand, I overrule the preliminary objection with no order as to costs since the delay was not inordinate. The aim of overruling this preliminary objection is twofold, one is to give the applicant a right to be heard which he did not have in the lower courts. Two, is to finalize the matter on merits. Said and done, I hereby allow the application to proceed with as usual and learned counsels are argued to expedite hearing process. It is so ordered. ( i, k A H.A A O LTAIKA Page 10 of 11 Court: This ruling is delivered under my hand and the seal of this court on this 31st day of July 2023 in the presence of Mr. Faraji Taratibu and Ms. Anastazia Minja Advocates for the applicant and respondents respectively. 31.07.2023 Page 11 of 11