harris newman kapiga another vs elizabeth harris lupembe others 2018 tzhclandd 125 4 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 681 OF 2017 HARRIS NEWMAN KAPIGA.............................. 1st APPLICANT FREDY MARCUS LUPEMBE..............................2nd APPLICANT VERSUS ELIZABETH HARRIS LUPEMBE..................... 1st RESPONDENT RUNA OMAR ASHEL....................................2nd RESPONDENT EQUITY BANK TANZANIA LIMITED.............. 3rd RESPONDENT MEM AUCTIONEER AND GENERAL BROKERS................................... 4™ RESPONDENT Date o f last Order: 30/4/2018 Date o f Ruling: 04/05/2018 RULING MGONYA, J. By this Application, which was instituted on 10th day of August 2017, the Applicants HARRIS NEWMAN KAPIGA and FREDY MARCUS LUPEMBE are applying for this Honorable Court to set aside dismissal order dated 9th day of March 2017 in respect of the Land Case No. 132 of 2015 in which the same was dismissed by Hon. Mgonya, J. for want of prosecution. The application is brought under Order IX Rule 9 and Section 95 of the Civil Procedure Code, Cap 33 [R. E. 2002]. The same is supported by the joint affidavit of HARRIS NEWMAN KAPIGA and FREDY MARCUS LUPEMBE, the Applicants herein. Before hearing of the application on hand, the 3rd Respondent on 10th October 2017 filled the notice of preliminary objection with one point to the application that: "The application is incompetent for being filed out of time" During hearing of this preliminary objection, Mr. Mayenje, the learned Counsel who was representing the 3rd Respondent, told this Court that the Land Case No. 132/2015 which is subject to this application was dismissed on 9th March 2017 while the instant Application for setting aside the dismissal order has been filed before this honorable court on 10th August 2017. Submitting on the Preliminary Objection that the application is hopelessly time barred, the learned Counsel told this court that the Application before the Court is to restore Land Case No. 132/2015 which was dismissed for want of prosecution. The learned Counsel further asserted that, the instant application was not instituted within the prescribed time, and that what the Applicant was supposed to do was to ask for the extension of time before instituting the same. However, that was not a case. Referring to the law, the learned Counsel referred this court to the Schedule to the Law of Limitation Act, Cap. 89 Part III; (Item 21) which states that; in all cases for applications in which the time limit is not provided for in the Civil Procedure Code Cap. 33 [R. E. 2002], the time limit is within the period of 60 days. From the above explanation, Mr. Mayenje was of the view that the Application is incurably defective for being time barred. He thus prayed the Application be dismissed with costs. In response, the Applicant who is appearing on behalf of the Applicants herein under the Special Power of Attorney, was in person and he didn't have much to say, and instead he admitted that the Application is out of time; but the reasons for the delay have been well stated in their Affidavit which has accompanied their respective Application. He further averred that the preliminary objection before the court has some shortcomings, since the law that has been referred to support the same is incorrect. He therefore prayed before this court to dismiss the preliminary objection with costs. Upon careful consideration of the respective oral submissions presented by both parties, I had a chance of going through the court record and it came to my knowledge that Hon. Mgonya J., that is myself, dismissed the Applicants' Land Case No. 132 / 2015 on 9th of March 2017 for want of prosecution. Further, records of the court show that the Application on hand (Misc. Land Case Application No. 681 of 2017) was filed before this Honorable court on 10thof August 2017, via Exchequer receipt No. 17018630 exactly five months later after the Main Land Case was dismissed. Further, records reveals that the Application to restore the same was filed on 10th August 2017 in this Registry. As stated earlier, the Counsel for the 3rd Respondent told this court that the Application is time barred and that the same is contrary to the Schedule to the Law of Limitation Act, Cap. 89 Part III; (Item 21) which states that; in all cases for applications in which the time limit is not provided for in the Civil Procedure Code Cap. 33 [R. E. 2002], the time limit is within the period of 60 days, and thus the Application before the court is hopelessly time barred. On my part, I had an opportunity to go through the Law of Limitation Act, Cap. 89 [R. E. 2002]; The Schedule to the Law Part III (Applications) Item 4 and I have confirmed that the time limit for application for an order under the Civil Procedure Code or Magistrates' Courts Act, to set aside a dismissal of a suit is thirty days. The provision is clear and precise. Since there is a specific provision to encounter the instant application, I join hands with the Applicant that the law cited to support the preliminary objection is in correct. However, that does not remove the fact that the Application is time barred since, it is even worse, that according to The Schedule to the Law Part III (Applications) Item 4, the time limit for this kind of Application is less than the earlier mentioned time of 60 days and instead it's lesser now by thirty days. It is from the same, the instant Application was to land before this honorable court not more than on 9th day of April 2017, meaning thirty days from the date of dismissal order which was on 9th March 2017. Though the 3rd Respondent's Counsel was not right for the provision used for the preliminary objection, I fully agree that the Application before the court is hopelessly time barred; and that he has done his duty to alert the court on that. It is from the above stand, I hereby declare that the Application before this court ought to have been brought within thirty days from the date of which the application was dismissed for want of prosecution. From the above therefore, I join hands with the Respondent's Counsel that the Application on hand is time barred. From the above confirmation, the Preliminary objection is hereby sustained. Further, I proceed to dismiss the Miscellaneous Land Case Application No. 681/2017 before this court. 3rd Respondent to have her costs. It is so ordered. L. E. MGONVA JUDGE 4/05/2018 COURT: Ruling delivered under my hand and seal of the court in chamber, this 4th day of May, 2018 in the presence of Advocate Victoria Gregory for 3rd Respondent, and 1st Respondent in person; and Ms. Emmy B/C. L. E. MGONYA JUDGE 4/05/2018 6