20151120 TZHC Dar es Salaam 1

. . ' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 116 OF 2012 LAILA HASANALI SHIRAZ! .................... PLAINTIFF VERSUS ~ . ISSA KHAMI SI MRIRI ........................ _. ... 1 _ DEFENDANT _ ISHAM GENERAL SUPPLIES LTD ............. 2No DEFENDANT I I I RULING Mwaikugile, l This ruling arises from the decision and order of this Court dated 2/7/2013. Upon hearing of the application by the applicant for leave to appear and defend the suit, the court dismissed the application with costs on account of being time barred. Following that decision, Mr. Jerome Msemwa, learned counsel for the applicant (Issa Khamis Mriri) filed a memorandum of review of the ruling and order on the ground that on 2nd day of October, 2012 this Court issued an order and directed the applicant to file the application for leave by 9/10/2012. The applicant rightly complied with the Court order. 1 In that respect when the Court ruled that the said application was filed out of time the counsel pointed out on his part that, that was an error apparent on the face of the record for which he proceeded to file the present memorandum of review. Ms Raya, learned counsel for the respondent resisted the application. She argued on her part that the memorandum of review filed by the applicant was time barred in that it was filed out of time prescribed by law. According to her, time from 2nd July 2013 the date when the ruling was delivered to the 1st of August, 2013 when the memorandum of review was filed, was well after elapse of 30 days, which she strongly submitted that it was filed out of time and without leave of the Court hence prayed that the same be dismissed with costs. In his rejoinder submission, Mr. Msemwa complained that the issue of memorandum of review being filed out of time as alleged by the ~· counsel for the respondent is on the face of it a preliminary objection which a notice ought to have been filed. He argued that the only point of law which a party can raise at any stage is on the point of Jurisdiction and not on any other. The counsel maintained that since there was no notice of preliminary objection filed against the memorandum of review of having been filed out of time, the counsel was of the opinion that to raise the issue of time bar at this stage of the case amounts to taking him by surprise hence prayed that the said ground be dismissed. 2 I have carefully listened to and followed through the argument advanced by both learned counsel. I must point out right from the outset that a party who wishes to take a preliminary objection must give prior notice to the other party. Admittedly, in our case at hand, the learned counsel for the respondent raised an issue which the counsel for the application termed it and quite rightly so in my view, as a preliminary objection without any prior notice to the other side. This was unfortunate and I would echo the practice advocated by Thomas, the Chief Justice of Malaysia in the case of GURBACHAN SINGH V /S SEAGROTT & CAMPVELL (1962) 1 LMJ 370 in which it was stated that when points such as this are proposed to be taken, notice in writing of an intention to do so should be given at the earliest possible moment to the other side who otherwise might be taken by surprise (as in our case at hand). It should be noted however, as rightly submitted by the counsel for the applicant that the only point of law which a party can raise at any stage is stage is that of jurisdiction. Much as I concede, the aim of preliminary objection is to save the time of the Court and of the parties too by not going into the merits of an application because there is a point of law that will dispose the matter. The case of SHAHIDA ABDUL HASSANALI KASAM V /S MAHED MOHAMED GULAMALI KANJI, Civil Application No. 42 of 1999 (unreported) is relevant on the point. Although in this case there was no notice given to the applicant about time limit, I am strongly of the view and do maintain that this 3 .' ,, '' , Court is not preclude from considering the same on the ground that time limit determines the requisite jurisdiction of the Court. The Court has no jurisdiction to entertain any application brought outside the prescribed time limit.. In terms of Item 3, part III of the schedule to the law of limitation Act Cap. 89 RE 2002, the period of limitation provided for an application for review is thirty (30) days. The ruling and order of the Court sought to be reviewed was delivered on 2/7/2013. The application was required to file the - memorandum of review within 30 days of the delivery of the ruling. The same however, was filed on 1/8/2013 which was out of time by one day. Being time barred, the applicant ought first to have sought and obtain extension of time within to file it. Since the applicant did not apply for and obtain extension of time, I find the application for memorandum of review to be incompetent for being time barred. That said and in the result therefore, the same be and is hereby dismissed with costs. Sgd: N. M. Mwaikugile JUDGE 12/06/2014 Ruling delivered this lih day of June, 2014 in the presence of Mr. Selemani Shiraza elder brother of the plaintiff who is currently in Muscat 4 • , • · Oman and Mr. Joseph Peter for Mr. Msemwa, Advocate who is reported ' ' . to be attending to his sick father. Sgd: N. M. Mwaikugile JUDGE 12/06/2014 I certify that this is the true copy of the original. -=- M.M. Siyani DEPUTY REGISTRAR DAR ES SALAAM 20/11/2015 ...... J\ 5