20150831 TZHC Dar es Salaam

- .....•· r IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO.216 OF 2015 (Originating from Civil Case No. 90/1991) KENNETH NYAMUBI (The Legal Representative of Mary Rogate Munga, Deceased) .............. . APPLICANT VERSUS DAVID ELINGARIA MARO ............... 1 st RESPONDENT MAMBA AUCTION MART & COURT BROKERS .... 2 nd RESPONDENT Date of last order 14.7.2015 115'. ---- -Date of RUiing--- -- -- -- ---31-.8-.20-15-- _______________ _ RULING Feleshi, l: This Ruling is determining the Applicant's prayer inviting this Court to review the decision of the Dar es Salaam Resident Magistrate's Court Kisutu (Hon.I. Arufani-PRM) dated 9/3/2015 striking out his Application No.188/2015. The struck out Application was for the extension of time to allow him to file an Application to set aside the dismissal order of that court dated 29/4/2014 which, like the present Application based on the RM Civil Case No.90/1991. The (_ ) parties in the original case were David Elingaria (Plaintiff) and Anna Lubuva (Defendant). At the trial, the plaintiff had unsuccessfully moved the court to declare him as the lawful owner of Plot No.272 Block B Mikocheni Dar es Salaam. He however successfully appealed and the High Court in Civil Appeal No.147/1995 (Hon.Mapigano, J.-as he then was) on 21/12/1999 declared him the lawful owner of that Plot. However, despite the above position, the judgment debtor on 9/1/2001 sold the Plot to Mary Rogate Munga who unfortunately died on 23/1/2015 but 1 after transferring the Title on 12/4/2001 from the judgment debtor to her and after effecting developments on the s_uit plot. Before meeting her death, Mary Rogate Munga filed an Application in the trial court/executing court to object the execution of the Decree but her objection was not determined and that's why the Applicant who became her legal representative on 2/7/2014 filed his Application No. 188/2014 which, as aforesaid, was struck out on 9/3/2015. The basis of the executing court's decision is premised on the Applicant's noncompliance with Order XXII Rule 3 (1) of the Civil Procedure Code, [Cap.33 ------R~E-.-2002-]--whicb __r_eqyif~§-~~oever succeeds the dead plaintiff's suit to secure 41' · leave of the trial court before he is made a party-fi:fllie-proceedin§s.--------------- 1 have gone through the submissions made by the M/S Smart Lawyers (Advocates) for the Applicant and Eliacha A.Ndowo, Advocate for the 1st Respondent. It is the contention by the Applicant that by virtue of the fact that the late Mary Rogate Munga is the present Title holder of Title No.186308/72 her right to be heard through him should be guaranteed. On the part of the 1st Respondent they categorically do not think if that right can be guaranteed against the law. The chronology of events and decisions made by this Court in Civil Appeal _,-,/, No.147 of 1995 (Hon.Mapigano,J.-as he then was), Civil Application No.35 & 36 of 2012 (before Hon.Juma,J.-as he then was) and Civil Revision No. 21 of 2012 (before Hon.Mwaikugile,J.-as he then was) wherefrom we learn that the appeal was allowed in disfavour of the 1st Respondent and her two application to object the execution of the decree were dismissed leads us to only one issue which is whether the Applicant who is the legal representative of an objector in the original suit was entitled to be made a party in the proceedings. 2 ------.-- l! I:_.- ' l His Advocate strongly submitted that the provisions of Rule 3 (1) of Order XXII of the Civil Procedure Code (supra) is completely inapplicable in the present case because for that Sub-Rule to apply there must (a) a pending suit (b) several plaintiffs (c) no right of survivorship to the remaining plaintiffs or (d) if there is sole plaintiff or surviving plaintiff and the rights survives. The provisions in question read: "3. (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased ---------____________ plaintiff - to be made a party and shall proceed with the suit." - - - - - - - - - - - - - - Whether or not the Applicant's proceedings fit-fnto- the ·aljovEf provisions------ -- -- -- -- necessitates us to consider whether the subsequent proceedings to civil trials, including the present Application, are suit(s). The Law Lexicon, The Encyclopedic & Commercial Dictionary, 2002 (Reprint) at page 1831 stated: "The term "Suit" is a very comprehensive one and is said to apply to any proceeding (sic) in which a Court of Justice by which an individual pursues a remedy which the law affords him. The modes of proceedings may be various; but if the right is litigated between the parties in the Court of Justice the proceeding (sic) in is a suit." In Tanzania Motor Services Ltd and another v. Mehar Singh t/a Thaker Singh, Civil Appeal No.115 of 2005 the Court of Appeal having sought guidance from the Law Lexicon (supra) stated: "It is evident that the word "suit" is a word of comprehensive import and we subscribe to the view that appellant's petition falls within the ambit of the word "suit." From the foregoing, I it is apparent to me that the right to sue or otherwise legally deal with the subject of the plot in question by Mary Rogate Munga or her legal representative in any subsequent judicial proceedings is well accommodated by the wide spectrum definition of suit presented by the Law 3 Lexicon and Tanzania Motor Services Ltd and Another above which seem not to exclude subsequent proceedings provided that the litigant/applicant/petitioner first conforms with the condition prescribed by Order XXII Rule 3(1) (supra) which is to secure a leave of the court. In view of the above, I cannot therefore fault the decision arrived at by the learned Principal Resident Magistrate since it was imperative for the Applicant to seek for the leave of the court before he/she was made a party to the proceedings in question. Therefore, the entitlement being conditional one I have no hesitation to hold that and the Applicant did not comply with the • prescribed condition and he therefore forfeitea-nis-rigflrof-oeiny-made a-party- - -- -- - - - - in the suit. The issue is settled accordingly. Under the circumstance therefore, the Commissioner for Lands instead of blaming the Judgment Holder for initiating the execution proceedings as he did in his letter LD/98682/90 dated 23/4/2015 which is annexed to the Reply to Counter Affidavit as Annexture ANN Al may appropriately help the parties to settle their differences when executing the decree on a subsequently developed suit plot. I thus dismiss the Appli~ation with costs. I rule accordingly. . shi• UDGE Rull * 1/8/2015 in the presence agreth Kisoka, Adv. for the Applican dvocate for 1st the ResR , n ent. E. . shi UDGE 31~ 8.2015 4