JILATU MSHANDETE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA PC. CIVIL APPEAL REF. NO. 202407091000016254 JILATU MSHANDETE ……………...………….……………. APPELLANT VERSUS JOSEPH KASHINJYE ………………………………… 1st RESPONDENT MACHERA NYERERE …………………………………2nd RESPONDENT MAGASHA MASISA ………………………………….. 3rd RESPONDENT [Appeal from the decision of the District Court of Shinyanga at Shinyanga] (Hon. C.S. Langau SRM.) dated the 15th day of December, 2023 in Civil Appeal No. 50 of 2023 ----------- JUDGMENT 30th September & 17th October, 2024. S.M. KULITA, J. Before hearing this matter, Advocate for the Respondent, Mr. Audax Constantine, raised two Preliminary Objections to the effect that, parties to 1 this appeal are different from those involved in the original case, and that the appeal is time bared. In his oral submission in respect of the 1st ground of Preliminary Objection Mr. Audax stated that, in his Memorandum of Appeal, the Appellant involved only one person namely Joseph Kashinjye, as the Respondent, while the original case had three Respondents. He said that that is fatal. Mr. Audax also submitted that this appeal is time bared. He said that it has been lodged out of time without leave of the court. He added that, the trial Judge in the previous appeal, PC. Civil Appeal with Ref. No. 202403251000006371, Hon. Mahimbali, J. allowed withdrawal of the appeal case with leave to refile as sought by the Appellant’s counsel, but he didn’t give the time frame for the said refiling to be done. Mr. Audax argued that, in such a situation, the implication is that, refiling should be done subject to the requirements of the law of Limitation Act, if at all the appeal intended to be refiled is out of the prescribed time limit. He narrated that, as for this matter computation of the time limit, which is 30 (thirty) days, recons from 15th December, 2023 which is the date of delivery of the impugned judgment of the District Court. 2 In the reply thereto, Advocate for the Respondent, Mr. Chrisantus Chengula, submitted that the parties in the 1st appeal are the same to those read in the original case. He added that, it just happened that the e-CMS (electronic filing system) was not responding addition of names as co-parties in the case. He said that, when you read the contents of the Appellant’s petition of appeal for that previous appeal, as well as this one, you can note that they all deal with all persons who were also parties to the original case. That, the persons involved in the original case are the same to those incorporated in the appeal cases. Submitting on the issue of the time limit in filing this appeal, Mr. Chengula, Advocate, stated that the previous appeal, PC. Civil Appeal with Reference No. 202403251000006371 which was before Hon. Judge Mahimbali was withdrawn with leave to refile as sought by the Appellant’s counsel on 29 th April, 2024. He said that, in that sense, it was right for the appellant to refile this appeal as it was so ordered by the presiding Judge. Upon going through the parties’ submissions on the 1st ground of Preliminary Objection, I have noticed that the parties in the 1st appeal are the same to those read in the original case, Civil Appeal No. 50 of 2023 Shinyanga District 3 Court. The heading in the said case’s petition is read only one person, Joseph Kashinjye, as the Appellant but when you read the contents of the Appellant’s petition of appeal in that previous appeal case, you can note that all persons involved in the original case are the same to those incorporated in the appeal cases, including this one. I also went through page 2 of the proceedings for the previous appeal and noticed this position whereby Mr. Chengula, Advocate for the Appellant herein, is read to be alleging that the 2nd and 3rd Respondents have denied the service. This means that, the Respondents in that said case were all three whose names are read in this appeal. I can therefore agree with Mr. Chengula, Advocate, that, failure to read names of all respondents in the heading of the court’s proceeding happened because the e-CMS (electronic filing system) was not responding addition of names as co-parties to the case. I therefore find this ground of appeal unmeritorious, hence overruled. As for the issue of refiling the appeal and the point of objection that the appeal is time barred, the law under section 14(1) of the Law of Limitation Act [Cap 89 RE 2019] states that, a person who intends to appeal after the lapse of the prescribed time for that purpose, he/she should first seek leave of the court. 4 According to the parties' submissions, it is not in dispute that the previous appeal was withdrawn on 29th April, 2024 with leave to refile. However, the impugned decision, Civil Appeal No. 50 of 2023 Shinyanga District Court, was delivered on 15th December, 2023. As for the appeal at hand, it was filed on 17th May, 2024. According to the Advocates’ submissions, as well as the record in the PC. Civil Appeal with Reference No. 202403251000006371, the trial Judge granted the applicant’s advocate prayer of withdrawing the said appeal case with leave to refile, but he didn’t state the time limit for the said refiling to be done. The argument of Mr. Audax, Advocate for the Respondent, on this is that, as the trial Judge didn’t specify the time limit for the said appeal to be refiled, the implication is that, refiling should be done subject to the requirement of the Law of Limitation Act, that the Appellant should first seek for leave to appeal out of time, if he is time bared as from the date of delivery of the impugned judgment. However, the learned counsels part ways when it comes to the consequence of the previous withdrawal of the matter as far as the time limitation is concerned. I should remark here that the law applicable to this Appeal, as correctly submitted by the Respondent’s Learned Counsel, Mr. Audax 5 Constantine, that, as the appeal previously instituted by the appellant was withdrawn pursuant to the provision of Order XXIII of the Civil Procedure Code [Cap 33 RE 2022], the time within which the withdrawn case should be refiled, if the time for doing so has not been stated in the order, should base the requirements of the Law of Limitation Act, if at all the appeal intended to be refiled is out of the prescribed time limit. Cementing on this, I hereby quote Order XXIII, Rule 1 of the Civil Procedure Code which provides; “(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to 6 withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim” It follows therefore that the instant appeal being filed about five (5) months after the date of the delivery of the impugned decision of the District Court is contrary to the requirement of section 25(1)(b) of the Magistrates’ Courts Act [Cap 11 RE 2019] which provides 30 (thirty) days’ time period for lodging appeal at High Court for the cases which originate from Primary Courts. Apparently, Order XXIII, Rule 2 of the Civil Procedure Code provides for the consequence of withdrawal of the case on time limitation. The said provision provides; "any fresh suit instituted on permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted." It is my take, and indeed my finding from the foregoing excerpt, that the party whose case is withdrawn shall be bound by the law of limitation in the 7 same manner as if the first matter had not been instituted, unless the time for refiling the same has been specified in the withdrawal order. In my interpretation, as it is in the original suit, position is the same even for the applications and the appeal cases like the one at hand whose time limit to refile has not been stated in the withdrawal order. That being the case, the appellant herein is precluded from filing this appeal without seeking leave of this court. He ought to have first filed application for extension of time to appeal. He was wrong to directly file this appeal which is time bared, merely for a reason that it has been filed after the grant of withdrawal of the previous appeal with leave to refile. Similar position was taken by this court in Emmanuel Eliazry V. Ezironk K. Nyabakari, Land Appeal No. 56 of 2018, High Court, Land Division at DSM, a decision which I am fully persuaded with. In it, the Court stated the following; "The phrase "leave to refile " is oftenly used to refer that the party is not barred to bring a fresh suit/application following a withdrawal of another matter of the same nature. It has never meant to exclude an extension of time. Once a suit is struck 8 out or withdrawn with leave to refile, the party becomes subjected to time limitation, whether or not such words were used in the order of the court. On that note, upon the striking out of the Land Appeal No. 121/2016 on the 02/08/2017, the position of the parties went back to the 23/06/2016 when the judgment of the tribunal was pronounced as if the said Land Appeal No. 121/2016 was never filed in this court. And that is when the computation of time for the purpose of limitation begun." [Emphasis supplied] In view of the above analysis, the appellant was bound to observe time limitation of 5 (five) months from 7th September, 2022, the date of delivery of the impugned decision of the District Court. I am therefore clear in my mind that failure of the appellant to seek leave for refiling this appeal out of the prescribed time limit, renders it time barred. As I have described hereinabove, the law under Order XXIII, Rule 2 of the Civil Procedure Code has a clear mandatory provision requiring a 9 party whose application has been withdrawn with leave to refile to be bound by the law on time limitation. For the reasons above, this court finds merit on this second point of preliminary objection and hereby rule out that this appeal is time barred. As regard to the remedy, when a matter is held to be time barred, the appeal should be dismissed under section 3(1) of the Law of Limitation Act [Cap 89 RE 2019], and I so order. In the end, I hereby declare that this second point of preliminary objection sustains. Hence, the appeal is accordingly dismissed for being filed out of time without leave of the court. Appellant to bear the costs. S.M. KULITA JUDGE 17/10/2024 DATED at SHINYANGA this 17th day of October, 2024. 10 S.M. KULITA JUDGE 17/10/2024 11