CIVIL REVIEW 6975 OF 2024 MSAGAYA VS SAMATO Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL REVIEW NO. 6975 OF 2024 (Originating from Civil Appeal No. 55 OF 2023) IGNAS ROMWARD MSAGAYA ………………………...…………. APPLICANT

VERSUS LIVINUS SAMATO…….……………..………………………. 1ST RESPONDENT BLESS MAKANGANYA………………………………………. 2ND RESPONDENT

RULING 26th September & 14th November, 2024 BWEGOGE, J.: This is an application for review against the decision of this court in Civil Appeal No. 55 of 2023 which was dismissed on 22nd February, 2024 for being lodged out of the prescribed time. The application is brought under Order XLII, rule 1(b) of the Civil Procedure Code [Cap. 33 R.E 2019]. 1 The factual background of this application as gathered from the pleadings of this case entails thus: The respondents herein jointly commenced civil proceedings against the appellant herein above mentioned in the District Court of Kilosa in Civil Case No. 12 of 2016, claiming damages for malicious prosecution. The trial court entered judgment in favour of the respondents herein. The appellant herein was not amused. Having obtained an extension of time within which to appeal in this court in Misc. Civil Application No. 280 of 2021, the applicant lodged his appeal in Civil Case No. 12 of 2016. Unfortunately, the appeal was dismissed for being time-barred. The applicant feels that this court erred in entering an order for dismissal in lieu of striking out the appeal. Hence this application. The applicant was represented by Mr Shalom Msakyi, learned advocate; and Mr Jackson Liwewa, learned advocate, entered an appearance for the respondents herein. In substantiating this application, Mr. Msakyi argued that this court errored in dismissing

the appeal preferred by the applicant instead of striking out the same having sustained the preliminary objection raised by the respondents. The counsel enlightened this court that previously, the earlier appeal (Civil Appeal No. 246 of 2017) preferred by the applicant in this court was likewise 2 dismissed on the ground of time limitation but the dismissal order was set aside having the applicant invited this court to review its decision in Misc. Civil Application No. 41 of 2020. Further, the counsel argued that the superior Court in various decisions has insisted that dismissal of the case on preliminaries locks all doors for the litigant to pursue his/her right and it implies that the said appeal or dispute between the parties has already been determined on its finality. The counsel opined that if the matter herein had been struck out, then the applicant would have had room to exhaust other remedies, including filing an application for an extension time within which to appeal. The counsel drew the mind of this court to the decision in the case of Yahya Khamis vs Hamida Haji Iddi and 2 Others, Civil Appeal No.225 of 2018, [2019] TZCA 116 among others. On the above premises, the counsel prayed this court to allow the application herein and substitute the impugned dismissal order with an order for striking out the appeal. 3 In reply, Mr. Liwewa contended that the applicant’s

argument in that this court ought to strike out the appeal instead of dismissing it having found the case time-barred, is patently misconceived. That the provision of section 3(1) of the Law of Limitation Act [Cap. 89 R. E. 2019] provides that when the matter is instituted beyond the time of limitation, the only remedy is to dismiss it. In making his point he cited the case of Nicodemus Lusambo vs Gerada Zacharia, Civil Appeal No.486 of 2022 [2023] TZCA 17319. Likewise, the counsel contended that the case of Yahaya Khamis vs Hamida Haji Idd & Others (supra) cited by the applicant’s counsel to buttress his argument is an old law; hence, this court is bound by the recent decision of the superior court. The respondent’s counsel concluded his submission by opining that this court was correct in dismissing the case instead of striking it out. He prayed this application to be dismissed with costs. In rejoinder, Mr. Msakyi reiterated his submission in chief of which I find needless to replicate herein. 4 The question for determination by this court is whether this application herein has substance. It is common ground that the appeal (Civil Appeal No. 55 of 2023) preferred by the applicant in this court was lodged beyond the prescribed period specified in the order of this court upon the grant of extension of time within which to appeal. And it is the law of this land that any

proceeding initiated beyond the prescribed time limitation is to be dismissed in terms of the provision of section 3(1) of the Law of Limitation Act. The relevant provision provides thus: “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 dism issed w hether or not lim itation has been set up as a defence .” [Emphasis mine]. This position was amplified by the Apex Court in the case of Nicodemus Lusambo vs Gerada Zacharia (supra) as follows: - “We are therefore satisfied that the respondent's appeal to the High Court was time-barred. The High Court had no jurisdiction to admit and determine the appeal on merit and as such, it ought to have dismissed it under section 3 of the LLA for being time-barred” 5 In the same vein, in the case of Ali Shabani and 48 Others vs. TANROADS and Another (Civil Appeal No. 261/2020) [2021] TZCA 243, the Apex Court held thus:- “In the light of the clear statement of the law, we are unable to disagree with the learned trial Judge. She rightly held that the appellants’ suit was time barred it being instituted beyond 12 months from the date on which the time accrued. As the suit w as time barred, the only order w as to dism iss it under section 3(1) of the LLA.”

[Emphasis is mine] Based on the law and decisions of the Apex Court revisited above, it is apparent that the only remedy for the proceedings instituted in court beyond the prescribed time limitation is dismissal. The rationale behind the respective spirit of the law is better restated in the case of Bazil Gerald Mosha & 3 Others v. Ally Salimu [2014] T.L.R. 96 wherein the Apex Court expounded as hereunder quoted: “It is well established that the underlying policy rationale for periods of limitation.......include that of diligence in the speedy determination of disputes with a reasonable, rather than an unreasonable or inordinate length of time; of fairness to the opposing party who is not to be the subject of an indefinite threat of being dragged into 6 Court undetermined dates by an applicant who does not pursue his or her remedies timely; interminably and promoting certainty in the rights and title, preventing the potential loss of evidence, oral or document; and of public interest in the timely resolution of disputes. (See, Halbury's of England, IIIrd Ed, Vol. 24, p. 189, para 130; Tolcher vs Gondon [2005] NSWCA135). As correctly observed by the Supreme Court of Canada in M(K) V M (H) (1992) 3 S.C.R.6, pp 29-30: ‘The diligence rationale is that one expects an applicant to act diligently and not to ''sleep over their rights’ “ The applicant’s counsel persuaded this court to

abide by the decision of the superior Court in Yahaya Khamis vs Hamida Haji Idd & Others (supra) in vacating the impugned dismissal order entered. However, upon scrutiny, I apprehend that the circumstances of the respective case don’t fit the case at hand. In the respective case, the Apex Court discussed the distinction between the order for dismissal and striking out the case. It was opined that a striking out order is meted where the matter is incompetent before the trial court. To the contrary the impugned dismissal order entered in Civil Appeal No. 55 of 2023 by this court was not premised on the incompetence of the appeal but for reason of being instituted beyond the prescribed time 7 limitation. See also the case of Bank of Tanzania vs. Zuhura H. Mbulu (Civil Appeal No. 207 of 2021) [2024] TZCA 545 in this respect. Based on the above observations, I subscribe to the opinion made by Mr. Liwewa in that the application before this court was patently misconceived. Given the foregoing, I find the application herein bereft of substance. I hereby dismiss the application herein with costs. So ordered. DATED at DAR ES SALAAM this 14th November, 2024. . O.F. BWEGOGE

JUDGE 8