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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISC. CIVIL APPLICATION NO. 31 OF 2023 (From Civil Revision No. 05 of 2022 in the District Court of Kyela, originating from Probate Cause Number 28 of 2016 Kyela Urban Primary Court) JOSEPH LUBIDA……………...…………………………………….1ST APPLICANT SAIMON MWAMAGEMO……………………………………….…2ND APPLICANT SETH MWASONGWE………………………………………………3RD APPLICANT

VERSUS HUMPHREY ADAM MWAMAGEMO..…..…………….…..….1ST RESPONDENT GABRIEL ADAM MWAMAGEMO……..…..…….……………2ND RESPONDENT

RULING Date: 28 November 2024 & 30 January 2025 SINDA, J.: The application is brought under Section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019 (the LLA). The applicants are praying for this court, inter alia, to grant their application for leave to appeal out of time against the decision of the District Court of Kyela (the Trial Court) delivered on 19 December 2022. 1 Upon being served with the said application, the second respondent filed a counter affidavit together with a Notice of Preliminary Objection (the P.O) with three grounds that: 1. The application is bad for being instituted against a dead person that is the first respondent.

2. The applicants failed to move the Court properly as the application has been brought under wrong citation of the provision of law.

3. The application is incompetent and bad in law for being supported by a defective affidavit. It is thus upon this court to determine the P.O put forth, before deciding whether or not to continue deciding on the application. At the hearing of the P.O, the applicants were represented by Mr. Loth Mwampagama, learned counsel. The second respondent was represented by Ms. Irene Mwakyusa, learned counsel. The first respondent did not enter appearance. Submitting for the P.O, Ms. Mwakyusa prayed to drop the first limb of the P.O. On the second limb, the counsel argued that the applicants failed to move this court properly. That, the present application is brought under Section 14 (1) of the LLA. She argued that the provision of the law cited 2 above is applicable only where the specific written law does not provide jurisdiction to the court to grant the order sought on a particular matter. She added that in the present application, section 25 (1) (b) of the Magistrates’ Court Act, Cap 11, R.E 2019 (the MCA) and Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules G.N No. 312 of 1964 (the Rules), gives this court exclusive jurisdiction to hear and determine an application of this nature. Ms. Mwakyusa was of the view that failure to cite the above mandatory provisions of the law, renders the present application incompetent. The counsel further

submitted that the applicants have cited a wrong law altogether and forgot the mandatory provisions of the law which gives this court exclusive jurisdiction to hear and determine an application of this nature. She cited the case of Alliance One Tobacco & Another vs. Mwajuma Hamisi (As the Administratrix of the Estate of the Late Philemoni R. Kilenyi & Another, Misc. Civil Application No. 803 of 2018 to support her argument. In relation to the third limb, the counsel submitted that the applicants’ affidavit is fatally defective on the reason that, the third applicant herein denied to depone and sign the joint affidavit in support of the present 3 application. For that reason, Ms. Mwakyusa argued that the present application is bad in law for being incompetent. In his reply submission, on the second limb of the P.O, Mr. Mwampagama argued that the applicants moved this court using section 14 (1) of the LLA, which is a general provision governing extension of time. The counsel continued that Ms. Mwakyusa termed the application incompetent by failure to cite mandatory provisions of the law and referred to the case of Alliance One Tobacco & Another (supra). Mr. Mwampagama submitted that the position in Alliance One Tobacco & Another (supra) has been replaced by a more recent case of Charles Zephania Mwenesano vs. Daniel Samwel, Civil Reference No. 3 Of 2023 (Unreported). The

counsel added that in the latter case, wrong or improper citation of law cannot render the application incompetent, where the court still has jurisdiction to grant the prayers sought by the applicant. Addressing the third limb of the P.O, regarding denial of the third deponent to sign and depone the joint affidavit. It was Mr. Mwampagama’s submission that the omission is curable under the principle of overriding objectives and the court could remove the third applicant and the matter proceed with the remaining applicants. 4 I have gone through submissions from both sides in relation to the objections raised. Beginning with the second limb. The counsel for the second respondent argued that this Honourable Court was not properly moved during filing of this application. Mr. Mwampagama disputed that contention, by citing the case of Charles Zephania Mwenesano (Supra), which I wish to reproduce as follows: “It is our humble interpretation of that proviso, also that as long as the Court has jurisdiction to entertain an application before it, it is not strictly mandatory to necessarily have a proper enabling provision in the notice of motion or any provision at all. To say it differently, where the Court has jurisdiction to entertain the prayers in a notice of motion, wrong citation or even a complete omission to cite the enabling provision in a notice of motion does not render the

application incompetent.” From the above, I find myself agreeing with Mr. Mwampagama that this court has jurisdiction to entertain the matter. That, the omission argued by the counsel for the second respondent as per the current position of law, is not fatal. Besides, considering that the nature of this application being of leave to file for extension of time, I believe the court was properly moved under Section 14 (1) of the LLA. The section provides: “Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made 5 either before or after the expiry of the period of limitation prescribed for such appeal or application’’ In relation to Ms. Mwakyusa’s contention, it is my humble opinion, that there is no need to move the court with so many provisions of the law if only one provision can serve the purpose. Nonetheless, since the alleged omission is curable in the case of Charles Zephania Mwenesano (Supra), I find the second limb of the P.O with no merit. With respect to the third limb, Ms. Mwakyusa termed the joint affidavit of the applicants to be defective. For reasons that the third applicant did not depone nor sign the said affidavit. I took it upon

myself to visit the pleadings found in the court file and found that the affidavit was signed by the third applicant. However, it could be that the copies served to the respondents were not signed. Concerning this controversy, I will seek wisdom from the case of Athumani Amiri vs. Hamza Amiri & Another, Civil Application No. 40/02 of 2023. To wit: “Given the circumstances of this case, and invoking the principle of the overriding objective, we find the said infraction found in the said affidavit in reply did not go to the essence of the said affidavit nor did it in any way prejudice the rights of the applicant. That is why we overruled the objection.” 6 That being the case, since the omission in the affidavit does not go to the root of the matter and does not prejudice the rights of any party to the case. I agree that the principle of overriding objective can be invoked to rescue the situation. As a result, I find the third limb to be baseless as well. From the foregoing, having found that both limbs of the P.Os have no merit, the P.Os are hereby overruled. This court will proceed to hear the application for leave to appeal out of time. I make no orders as to costs. It is so ordered. DATED at MBEYA on this 30 Day of January 2025. A. A. SINDA

JUDGE 7