GERVAS MANDARA V LETICIA THOMAS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC CIVIL APPLICATION NO. 28202 OF 2023 GERVAS VAKO MANDARA (As administrator of estate of the Late Thomas Makanya Isaka )................................................... APPLICANT VERSUS LETICIA TABU THOMAS................................................................RESPONDENT RULING 25/7/2024 & 26/8/2024 ROBERT, J This ruling addresses a preliminary objection raised by the respondent, Leticia Tabu Thomas, against an application filed by the applicant, Gervas Vako Mandara (as the administrator of the estate of the late Thomas Makanya Esaka), seeking certification that a point of law is involved in his intended appeal to the Court of Appeal of Tanzania. The application was made pursuant to Rules 45(a) and 46(1) of the Court of Appeal Rules, G.N. No. 344 of 2019, and Section 5(2) of the Appellate Jurisdiction Act, Cap. 141, R.E.2019. The application is supported by an affidavit sworn by the Applicant. i The background of this matter traces back to Probate Cause No. 08 of 2020, where the Applicant applied for letters of administration at Nyakaliro Primary Court following the demise of the late Thomas Makanya Esaka. The respondent objected on several grounds, including the lack of a family meeting to appoint the administrator, her exclusion from the process, and allegations of forgery. The Primary Court dismissed the objection and granted the letters of administration to the applicant. The respondent's subsequent appeal to the District Court of Sengerema was dismissed. Dissatisfied, the respondent appealed to the High Court, but the parties settled the matter before the Court (Kilekamajenga, J.), which issued an order marking the case as settled. The applicant now seeks to challenge this order in the Court of Appeal. As the matter originates from the Primary Court, the Applicant requires this Court to certify that there is a point of law involved, hence this application. Before delving into the merits of the application, the Respondent raised a preliminary objection on a point of law to the effect that: 1. The application is time-barred. 2 2. The Court, having issued a consent decree in the original application, is functus officio and lacks jurisdiction to entertain the subsequent application. 3. The verification clause of the application is defective. At the request of parties, hearing proceeded by way of written submissions. During the hearing, the respondents counsel, Mr. Raphael G. Lukindi, abandoned the second and third grounds, focusing solely on the first ground, that the application is time-barred. Mr. Lukindi argued that jurisdiction is fundamental to the Court's ability to hear any matter. He emphasized that time limits for filing applications are jurisdictional in nature, and any application filed beyond the prescribed time limits is a nullity. He cited Rule 46(1) of the Court of Appeal Rules, which mandates that certification on a point of law must follow the lodging of a notice of appeal. The relevant period for lodging a notice of appeal, as per Rule 83(2) of the Court of Appeal Rules, is 30 days from the date the decision was pronounced. He argued further, the time for filing an application for certification on a point of law is not provided for by the law. However, the Law of Limitation 3 Act, Cap. 89, R.E. 2019, is invoked where the specific statute is silent on the time frame for filing an application. Mr. Lukindi pointed to Item 21 of Part III of the Schedule to the Law of Limitation Act, which provides a 60-day period for filing applications under any other written law. He referred to the case of Rose Nestory Kabumbile vs. Gibson Kabumbile, Misc. Civil Application No. 127 of 2021 (HC-Mwanza, unreported), where the Court held that in the absence of a specified limitation period, the 60-day rule applies. He submitted that, the order sought to be challenged was delivered on 22nd September 2023, while the application for certification was filed on 21st December 2023 which is 91 days after the judgment. Thus, Mr. Lukindi argued, the application was filed 31 days beyond the 60-day limit, rendering it time-barred. He urged the Court to dismiss the application under Section 3(1) of the Law of Limitation Act, citing the decision in Ali Shabani & 48 Others vs. Tanzania National Roads Agency (TANROADS) & Another, Civil Appeal No. 261 of 2020 (CAT-Tanga, unreported), where the Court of Appeal dismissed an appeal for being filed outside the statutory period, reiterating that the law of limitation is strict and leaves no room for discretion. 4 In response, the Applicant's counsel, Mr. Baraka B. Makowe, acknowledged the issue of time but attributed the delay to complications arising from the mandatory e-filing system. He explained that the affidavit was signed on 19th October 2023, uploaded into the JSDS system on 20th October 2023, and the payment was made on 1st November 2023. Due to the transition to the new eCMS system, the case had to be re-filed, resulting in further delay. He invited the Court to determine the applicability of the e filing rules, i.e. Rule 21(1), GN 148/2018, consider the peculiar circumstances of the e-filing system and dismiss the preliminary objection, allowing the application to be heard on its merits. To support his argument, Mr. Makowe referred to the case of Kiribo Ltd vs. Simon Mwita Mlagani & Another, Misc. Labour Application No. 18 of 2021 (HC-Musoma, unreported), where the Court, faced with a similar situation, cross-checked the e-filing system records to determine whether the application was indeed filed on time. He urged the Court to adopt a similar approach and consider the e-filing system's operational issues as a valid reason for the delay. He further argued that dismissing the application on technical grounds would undermine the principles of justice, particularly when the delay was not attributable to the applicant's negligence. 5 In his rejoinder, Mr. Lukindi reiterated that the application was time- barred and that the applicant had failed to apply for an extension of time, which is the proper legal remedy for any delay. He pointed out that the applicant did not provide an affidavit from the Deputy Registrar or any other court official to substantiate the claims of issues with the e-filing system. Mr. Lukindi relied on the decision in M/S. P & O International Ltd vs. Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020 (CAT, unreported), where the Court emphasized that any party seeking exemption from the time limitation must explicitly plead and prove such grounds. The primary issue for determination is whether the application is time- barred as argued by the respondent. The question of time limitation directly affects the jurisdiction of the Court. The Law of Limitation Act, Cap. 89, R.E. 2019, under item 21 of Part III of the Schedule, clearly prescribes a limitation period of 60 days for applications of this nature. The Court of Appeal has consistently held that any suit or application filed beyond the prescribed time must be dismissed, as seen in the case of Ali Shabani & 48 Others vs. TANROADS & Another (supra) 6 Rule 21 (1) of the G.N. No. 148/2018 considers a document to have been filed if it is submitted through the electronic filing system before midnight on the date it is submitted. In the present case, the Applicant filed the application on 21st December 2023, 91 days after the order was delivered on 22nd September 2023. This is well beyond the 60-day limitation period. The Applicant did not seek an extension of time to file this application, which is a necessary step when an application is filed out of time. The explanation provided regarding the e-filing system, while informative, is misplaced as this is not an application for extension time and does not legally exempt the Applicant from complying with the prescribed time limits. In the case of Kiribo Ltd vs Simon Mwita Mlagani & Another, Misc. Labour Application No. 18 of 2021 (HC Musoma, unreported), it was emphasized that a party who seeks to rely on an exemption from time limitation must plead grounds for such exemption. The Applicant in this case failed to file an application for an extension of time, and as such, the Court cannot overlook the clear provisions of the law. In light of the foregoing, this Court finds that the application was filed out of time, and the Applicant has not sought an extension of time. Consequently, the preliminary objection is upheld, and the application is 7 hereby dismissed. Each party shall bear their own costs of this application considering that this matter involves parties related to the estate of the deceased. It is so ordered. 8