ibrahim tindwa vs revocatus osward another 2023 tzhclandd 16633 28 june 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 268 OF 2023

BETWEEN IBRAHIM TINDWA..................................................... APPLICANT

VERSUS REVOCATUS OSWARD..................................... 1st RESPONDENT DICKSON OSWARD.......................................... 2nd RESPONDENT

RULING Date of last Order: 19/06/2023 Date of Ruling 28/06/2023 A, MSAFIRI, J, This is a Ruling on the preliminary objection raised by the respondents in this application to the effect that; 1. The application was brought out of time, as such it is time barred.

2. The application is not maintainable in law for wrong citation of enabling provisions.

3. The form of Application for review filed before this Honourable Court is incompetent contrary to Order XLII Rule 3 read together with Order XXXIX Rule 1(2) of the general scheme of the Civil Procedure Code Cap 33 R.E 2019./Lil i 4. This application is an abuse of Court process for the reason that the applicant preferred an appeal against the ruling and order in Miscellaneous Land Application No. 721 of 2022, hence is precluded from applying for review. The preliminary objection was argued orally whereby the applicant was represented by Mr. Joseph Mandela Mapunda, learned advocate for the applicant, while Ms. Shiza Ahmed John, learned advocate, appeared for the respondents. Ms. Shiza submitted in support of preliminary objections by starting on the first limb of objection that the application is time barred. She stated that according to section 3(1) of the Law of Limitation Act, Cap 89 R.E 2019 read together with Part III of the Schedule to the said law, the time prescribed for filing application for review is 30 days from the date of Ruling. She added that, in this matter, the impugned Ruling was delivered on 13/3/2023, but this application for Review was filed on 09/5/2023 which is more than 30 days as provided by the law. She prayed that the application be dismissed for being out of time. To bolster her submission, she cited the case of Juma Mtungirehe vs. The Board of

Trustees of the Tanganyika National Parks t/a 2 Tanzania National Park, Civil Application No. 221/02 of 2020, CAT at Arusha (unreported). On second limb, Ms. Shiza prayed to argue this limb together with the fourth limb of objection. She submitted that, the applicant has initially filed a Notice of appeal which was lodged in this Court on 20/3/2023. That, the existence of the Notice of appeal bars the applicant from filing review under Section 78(1) (a) and (b) of the CPC. She prayed that for this reason, the application be dismissed with costs. On the third limb of objection which is on the defectiveness of the form of application for Review, Ms. Shiza argued that the form for Review is not complete, it is fatally defective and it contravenes Order XLII Rule 3 and Order XXIX Rule 1(2) of the CPC. She pointed that the application is brought by chamber summons supported by an affidavit instead of memorandum of review. She again prayed that the application be dismissed with costs. On the reply, Mr. Mapunda submitted that they concede with the first limb of objection and prayed that for the interest of justice, the application be struck out instead of dismissal. He also prayed for no order as costs. Mr. Mapunda, did not argue on other limbs of objection. J-fl / 3 Ms. Shiza rejoined on the prayer for no costs and submitted that, the respondents have incurred expenses to attend the

application. That the applicant ought to have been aware that the application they are filing is out of time. She prayed that the Court grant costs of this application to be borne by the applicant. I have carefully considered the submissions by both parties to this application. This is an application for review made under Section 78(1) (a) (b) of the CPC and Section 95 also of the CPC. The objection on point of law has been raised that this application is time barred contrary to the provisions of the Law of Limitation Act. The application through his counsel has conceded that indeed this application is time barred. This implies that the applicant admits that this application is incompetent before this Court as it has been filed out of time. What are the consequences of instituting an application out of prescribed time by the law? The counsel for the applicant has prayed for this Court to strike out this application. However, Section 3(1) of the Law of Limitation Act provides thus; -/ifj / 4 Subject to the provisions of this Act, every proceeding described in the first column of the schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence, (emphasis added). This application was instituted after 30 days from the date of

the delivery of the impugned ruling contrary to the Part III, Column 3 of the Schedule to the Law of the Limitation Act. In the circumstances, the consequence is the dismissal of the application and not striking it out as prayed by the counsel for the applicant. On the prayers for costs, I agree that the applicant ought to have known that the application is time barred and hence should have sought for appropriate remedy as provided by the law instead of filing the application as it is, then concede on the preliminary objection. The respondents have incurred costs in attending the application. For the above reasons, I hereby dismiss this application with costs. It is so ordered. A. MSAFIRI

JUDGE 28/6/2023 5