janeth mahunguhungu vs tijan tijan mahunguhungu 2020 tzhc 641 31 march 2020

IN THE HIGH COURT OF TAZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 369 OF 2018 (Arising from the Probate and Administration Cause No. 28 o f 2014) JANETH MAHUNGUHUNGU...................... APPLICANT VERSUS TIJAN TUAN MAHUNGUHUNGU........ ..........................RESPONDENT RULING Date o f last order: 28/10/2019 Date o f Ruling: 31/03/2020 S.M. KULITA, J. This is a ruling on the Preliminary Objection on points of law raised by the respondent's learned counsel, Mr. Rwegasira on the following points; i. The applicant has no locus standi to file this application. ii. The application is bad in law for being supported by an affidavit which is incurably defective for containing prayers by a third party. iii. The application is time barred. During the hearing of submissions which was done by way of written submissions, with regard to the first point of the Preliminary Objection the respondent's Counsel Mr. Rwegasira submitted that the applicant has no locus standi because she has no interest in the subject matter of the application despite the fact that she claims to be the wife of the late Tijan Mzee Mahunguhungu. He said that while the annexture J-l to the applicant's affidavit which is a marriage certificate shows the name Janeth A. Mjema as a wife of the late Tijan Mahunguhungu the name is different to the applicant JANETH TIJAN MAHUNGUHUNGU who pretends to be the widow of the said deceased. The counsel submitted that these are two different persons. Arguing on the second ground of the preliminary objection, Mr. Rwegasira submitted that paragraphs numbered 5,6,7,8,9,10,11,15,16,18,20,22,27 and 30 contain prayers in which he claims that the use of words .... the applicant craves for a leave o f this honourable court.... "means "ask for something serious." The learned counsel also stated that the applicant ought the words "I crave for leave o f... "instead of "the applicant craves for...."which means it is another person other than the applicant who deponed. He said that all that make the affidavit incurable defective. Arguing on the third preliminary objection, Mr. Rwegasira submitted that the application is time barred because the respondent was appointed by the court on the 4/6/2015 in which the applicant filed for revocation of the administrator vide Misc. Civil Application 336 of 2016 before this court which was struck out on 3/10/2016. Mr. Rwegasira further submitted that since the application was struck out there is a lapse of twenty one months period. Therefore the application at hand is time bared as it has been filed contrary to the Law of Limitation Act [Cap 89 RE 2002] which provides for time limit of 60 days to file such application. Thus the application is subject to dismissal for being filed out of time. In reply the counsel for the applicant Mr. Alinanuswe submitted in respect of the first preliminary objection that it is irrelevant because it needs evidence to prove. He also submitted that the documents annexed to the application are subject to be heard on merit. Thus, the said ground has no merit. Opposing ground two of the preliminary objection, Mr. Alinanuswe submitted that the applicant has misconceived the fact that the applicant would have not annexed any document without informing the court about the said document. With regard to the other limb of this ground the applicant's counsel stated that the same is misconceived because it cannot form part of the preliminary objection. As for the ground number three of the preliminary objection the learned counsel submitted that the applicant does not challenge the application no. 336 of 2016 therefore limitation period cannot run against that application, but the original suit, that is Probate and Administration Cause No. 28 of 2014 from which the said application no. 336 of 2016 arose. He is of the view that the preliminary objections raised by the respondent they intend to delay the matter unnecessarily therefore the same should be dismissed for not disposing of the matter. In the rejoinder Mr. Rwegasira submitted that the applicant has not stated in her both affidavits and I submission that she is also called Janet Mjema, therefore the applicant has failed to show that she is one and same person. He went on to submit that the annexed documents to the affidavit are already parts of the evidence before the court. He also submitted that the applicant has failed to show when her cause of action arose. In that regard she has failed to counter the respondent's third Preliminary Objection. Having carefully considered the submissions by both parties, I hereby analyse the aforementioned grounds of preliminary objection as follows; Starting with the 3rd ground that the application is time bared; the respondent's counsel, Mr. Rwegasira submitted that the respondent was appointed by the court as an administrator of the estate of the deceased on the 4th June, 2015. The applicant filed the application for revocation of the letters of administration issued to the respondent vide Miscellaneous Civil Application No. 336 of 2016 which was struck out by this court. It is the finding of this court that the said matter was struck out for being incompetent, the applicant did not bring any application challenging the said struck out order but rather filed this application seeking for the same remedy. If at all this application is subject to the orders of the aforementioned Misc. Civil Application No. 336 of 2016 or even the Probate and Administration Cause No. 28 of 2014 it is definitely out of time as per the Law of Limitation Act, under part III, item 3 of the schedule to the Act. In fact the date of delivery of the original case, Probate and Administration Cause No. 28 of 2014 is the proper one to be referred in computation of time limit as to whether the application at hand is time bared or not. The limitation period cannot run against the date that application had been decided but from the date that the original suit, Probate and Administration Cause No. 28 of 2014 had been determined. It is from that case the said application no. 336 of 2016 arose. I therefore concur with the applicant's counsel Mr. Alinanuswe that this is application is incompetent before this court for being time bared. Lastly, it is on the issue of locus standi. In his submission the respondent's counsel stated that the applicant's name in the application is read Janeth Tijan Mahunguhungu but the document that she alleges to be the marriage certificate which has been annexed to her affidavit has the name Janeth A. Mjema and there is nowhere pleaded in the affidavit that it was or is her name as well. As rightly submitted by the respondent's counsel that the applicant had to declare in her affidavit that she is also called Janet A. Mjema or she was called that name before she was married to the deceased. The fact that the applicant never so deponed in her affidavit it renders the said affidavit incurably defective. This variation is more likely to bring confusion. The remedy for such a fault is striking out the said defective affidavit. The above made analysis is sufficient enough to dispose of the matter. I find it unnecessary to deal with the remaining ground of Preliminary Objection. In upshot the preliminary objections sustain, the application is hereby struck out. As the probate matter involves the family members I make no orders as to cost. S.M. KULITA JUDGE 31/03/2020