20181109 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA MISC CIVIL APPLICATION NO. 127 OF 2017 ( Originating from Civil Case No. 17 of 2014) IBRAHIM ABDALLAH (Suing as the lawful Administrator of the Estate of the Late Abdallah Mwalimu ......................................APPLICANT VERSUS SELEMAN HAMIS (Sued as a Lawful Administrator of the Estate of the Late Hamis Abdallah ..................... RESPONDENT MAIGE, J RULING The ruling of this Court in Civil Case No. 17 of 2014 which is the theme of this application is against the applicant in his individual capacity. It further indicates that the respondent who was the defendant was sued in his individual capacity. In the instant application, the applicant calls upon the Court to grant an order extending time within which to lodge a nqtice of intention to appeal against the ruling under discussion. Whether the application is maintainable or not has been raised as an issue in the course of dealing with the application. As such, the respondent has raised a preliminary objection to the effect that the applicant does not possess the necessary locus standito pursue the application. 1 When the matter came for disposal of the preliminary objection, I ordered the parties to argue the same by way of written submissions. My first impression was that the submissions would address the issue of the different descriptions of the parties between the trial proceedings and the instant one. That has not been the case nevertheless. Instead, the respondent has grounded his preliminary objections on factual materials extraneous the affidavit. Therefore, when the matter came for ruling, I requested the parties to address me on whether it was proper in law for the instant application to be preferred by the applicant in his representative capacity while in the ruling he is described in his individual capacity. In his brief submissions, advocate \Jeneranda Joseph who appeared for the applicant while conceding of there being a defect, he thought that the same was a mere clerical error ·which could be cured by an order for adjournment to allow the applicant to correct the defect. The respondent did not have any useful comment rather than insisting that the matter should be placed for ruling. I have duly considered the submissions. In my opinion, this application is untenable. The applicant intends to appeal against the ruling of this Court on the trial proceedings should extension be •granted. While in these proceedings, the applicant stands in his individual capacity, in the ruling against which he intends to appeal he was standing as a representative of the estate of the late Abdallah Mwalimu. The respondent herein was also sued as a legal representative of the late Hamis Abdallah. It is an elementary principle of law that he who sues in his individual capacity is a different person from he who sues in his representative capacity. It would follow therefore that the description of the parties in the ruling intended to 2 be appeal against is substantially different from those whom have been impleaded in the instant application. Miss Veranda Joseph has urged the Court to hold that the defect does not affect the substantial validity of the proceeding. With respect, he is not right. The Court of Appeal considered more or less a similar issue in CHRISTINA MRIMI VS. COCA COLA BOTTLES LTD, CIVIL APPEAL NO. 112 OF 2008 where the name of the would be the respondent was described as COCA COLA KWANZA BOTTLES LTD instead of COCA COLA KWANZA LTD. The finding of the Court of Appeal was that these were two different persons and consequently the appeal was held to be incompetent for failure to identify the appropriate party. It was accordingly struck out. It may perhaps be worthy to note that just like in the instant matter, in the respective proceedings the counsel for the appellant submitted that the defect was a mere clerical error. The Court of Appeal of Tanzania rejected the submission on account that the error was fundamental. I am bound by the decision of the Court of Appeal of Tanzania. In view of the foregoing and in the strength of the authority of the Court of Appeal of Tanzania just referred, it is my position that the defect in the instant application is not merely trivial or technical as submitted by the counsel for the applicant. It is substantive in as much as IBRAHIM ABDALLAH and IBRAHIM ABDALLAH (Suing as a lawful administrator of the late Abdallah Mwalimu) are two different persons in law so that an order extending time to file a notice of appeal against decision wherein the latter was a judgment debtor cannot be relevant to institute, an appeal by the former. The applicant would have, before filing the Instant application, applied for correction of ruling to reflect the correct names of the parties 3 For those reasons therefore, I find this application to be incompetently before me. It is accordingly struck out with costs. It is so ordered. Right to appeal duly explained. JUDGE 9/11/2018 Delivered in the presence of the applicant and the respondent in persons this 9/11/2018. ~ JUDGE 9/11/2018 4