Joana scanned 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 20996 OF 2024 (Arising from Land Case No 387 of2023) JOANNA FRANCSYCER CHIFUNDA.............................. APPLICANT

VERSUS ZAKARIA MASHAKA MAFTAH........................................................ 1stRESPONDEN SALAMA MAFTAH......................................................................... 2ndRESPONDEN KURINGE REAL ESTATE............................................................... 3rdRESPONDEN

RULING 3rd & 30th October, 2024 L. HEMED, J. The Applicant herein was the Plaintiff in Land Case No. 387 of 2023 which was fixed to commence hearing on 4th July 2024. Unfortunately, the Plaintiff and her advocate absconded without notice. The respondents herein, who were the defendants in the said Land Case, through their advocate moved the court to dismiss the said suit. The court found no ground to deny the prayer and eventually, dismissed it. Aggrieved by the dismissal order, the Applicant filed on 26th August, 2024 this application seeking for the following orders:- i " 1. That this Hon. Court be pleased to grant orders for setting aside dismissal order dated 4h July 2024...in Land Case No. 387 of 2023 for wasn't of prosecution and order the same for restoration and be determined on its merits inter-parties.

2. Costs of this Application be provided for.

3. Any other reliefs that this Honorable Court shall deem fit to grant." The 3rd Respondent is the only who resisted the application by filing the counter affidavit deponed by one Edward Eugen Mushi. The learned counsel for the 3rd Respondent also raised a preliminary objection in limine litis thus:- "1. That, the present application to set aside dismissal order is hopelessly time barred." As a matter of practice, the court had no option other than disposing the preliminary objection prior to delving into the merit of the application. Case. It was argued by way of written submissions whereas Mr. Sisty Massawe, learned advocated acted for the 3rd Respondent and the Applicant enjoyed the legal service of Mr.Vedastus S. Majura, learned 2 counsel. The submissions were filed timely as per the schedule directed by the court. As pointed out earlier, the 3rd Respondent is resisting the instant application for being time barred. It is undisputed fact that the dismissal order was made on 4th July 2024. The question is what is the time limit to set aside a dismissal order? The answer to the said question is found in the Schedule to the Law of Limitation Act [Cap.89 R.E 2019], item 4 of Part III which provides thus:- "...For an order under the Civil Procedure Code or the Magistrates' Court Act, to set aside a dismissal of a suit... thirty, days” In the right of the above provision, the

application to set aside dismissal order has to be filed within thirty days from the date of the order. The instantaneous application was presented for filing on 26th August, 2024, that is after fifty three (53) days. In his submission to support the preliminary objection, the learned counsel for the 3rd Respondent, Mr. Massawe insisted for the dismissal of the application for being filed out of time without the leave of this court. 3 In reply thereto, Mr. Majura, learned advocate was of the view that the duty of the court is to do justice and make sure that justice is seen to be done by resolving disputes presented before it. In his opinion, the court should consider the intention of the Applicant of restoring the dismissed suit so that it is determined on merits. Mr. Majura went further to submit that dismissal of the application which is found to be time barred is not the only remedy. According to him, the court may opt to strike out the suit. He relied on the decision of this court in Rehema Hemed Kilindo and Another vs. Abel Aison Mwakabenga, Land Appeal No. 26058bof 2023 and in Agness Mpelumbe (Administratrix of the Estate of the late Isaya Simon Mpelumbe) vs. Shecka Nasser Hamad, Civil Appeal No.136 of 2021. He ended praying the court to strike out the application and not to dismiss it. In his short rejoinder, Mr. Massawe reiterated his submission in chief. He

distinguished the cases cited by the learned advocate for the Applicant stating that only in the Court of Appeal where the appeal filed out of time can be struck out. The reason being the Law if Limitation Act does not apply there. 4 From the submissions made by both counsel, parties are in agreement that the application is time barred only that the 3rd Respondent urge the court to dismiss it while the Applicant is in attempt to persuade the court to strike out the application. The Applicant's advocate has insisted that the court should consider substantive justice by ensuring that the dismissed case is restored and heard on merit. I must point out at the outset that time limitation of suits is part of the principle of finality of litigation. The rationale behind it is rooted in ensuring a fair, efficient, and ultimately just legal system. Therefore, this principal is basic and fundamental one that cannot be compromised. What is the remedy for the matter which is time barred. The Law of Limitation Act (supra) has the answer under section 3(1), which 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 dismissed whether or not 5 limitation has been set up as a

defence." [Emphasis added] The above provision envisages that a matter found to be time barred, must be dismissed. This is because the provision is couched in mandatory terms by the use of the word "shall" which implies that the function or duty imposed by the provision, mandatorily, has to be done. This being the case, I have no option other than to dismiss the entire application with costs for being fil^^^f^me. It is so ordered DATED atDli^il&l-AAM 30t\Qctober 2024. 6