LOUIS AUGUSTINE MBUYA VS ALOYCE BARNABAS MKONYI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CIVIL REFERENCE NO. 9045 OF 2024 (Arising from Bill of Costs No. 79 of 2023 of the District Land and Housing Tribunal of Moshi at Moshi, Originating from Application No. 18 of 2017 of the District Land and Housing Tribunal) LOUIS AUGUSTINE MBUYA ...................................... APPLICANT VERSUS ALOICE BARNABA MKONYI ................................ RESPONDENT RULING 13/8/2024 & 15/08/2024 SIMFUKWE, J. The applicant, Louis Augustine Mbuya, was dissatisfied with the ruling delivered on 12th February 2024 in the Bill of Costs No. 79 of 2023 of the District Land and Housing Tribunal for Moshi. Thus, he filed an application for reference before this court to challenge the said ruling. 1 Before the reference was called for hearing, the respondent, through his learned counsel Erasto Kamani, filed a notice of preliminary objection on points of law stating that: 1. The applicant’s application is hopelessly time barred. 2. That, the Applicant’s application is res subjudice to Land Case Appeal No. 65 of 2023. The preliminary objections were ordered to be argued by filing written submissions on the reason that the applicant was unrepresented. On the first objection that the application is time-barred, Mr. Kamani referred to Order 7(2) of the Advocates Remuneration Order, GN No. 264, 2015 which prescribes time limit for instituting reference application to be twenty-one (21) days from the date of the decision being challenged. He argued that, in this case the impugned decision was delivered on 12/2/2024, whereas according to paragraph 11 of the applicant's affidavit a copy of it was issued on 12/3/2024. The applicant filed the instant application on 29/04/2024, which is 76 days late from the date of delivery of the impugned decision and 48 days from the date of issuing copy of that decision. From that narration, Mr. Kamani commented that it is obvious the application was filed out of time. 2 Submitting on the consequences of filing an application out of time, Mr. Kamani elaborated that the Advocates Remuneration Order does not provide for the consequences. However, section 46 of the Law of Limitation Act, Cap 89 R.E 2019 provides that when a period of limitation for any proceeding is prescribed by any written law, unless the contrary intention appears in such written law, the provisions of the Law of Limitation Act shall apply as if such a period of limitation had been prescribed by the Law of Limitation Act. He cited the case of Hezron M. Nanchiya vs. Tanzania Union of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001 in which a period of limitation was prescribed by the (Fatal Accidents and Miscellaneous Provisions) Act which did not prescribe consequences for a suit which is filed out of time. The Court of Appeal of Tanzania held that: “Since under section 46 where a period of limitation for any proceeding is prescribed by any other written law, the provisions of this Act shall apply, it is our considered view that section 3 of the Law of Limitation applies also in the (Fatal Accidents and Miscellaneous Provisions) Ordinance, thus the appellant’s application which was instituted out of time without leave of the Court deserves to be dismissed.” 3 Mr. Kamani was of the opinion that since the Advocate Remuneration Order does not prescribe consequences of a suit which is filed out of time, in view of the above case law and section 46 of (Fatal Accidents and Miscellaneous Provisions) Act, section 3 of the Law of Limitation Act should be applied to determine the fate of the instant application. The section provides that the suit which is instituted after the period of limitation prescribed by the law, should be dismissed with costs whether limitation has been set as a defence or not. The learned counsel moved this court to dismiss this application for being instituted out of time. Supporting the second objection that the application is res subjudice to Land Case Appeal No. 65 of 2023 which is pending in this court; the learned counsel submitted that on 01/11/2023, the applicant filed Land Appeal No. 65 of 2023 in this court. The said appeal is still pending. The matter at issue in the said appeal is directly and substantially in issue in this application. Also, it is between the same parties as both cases are against Bill of Costs No. 79 of 2023, which was concluded by the District Land and Housing Tribunal for Moshi. Moreover, the issue for determination as per paragraph 2 of the applicant’s affidavit is whether the applicant was a party in Land Application No. 18 of 2017 or not. Mr. Kamani argued that this issue is directly and substantially in issue under 4 paragraph 4 of Land Case Appeal No. 65 of 2023. He added that in both cases, the applicant prays for the decision in Bill of Costs No. 79 of 2023 of the Tribunal to be quashed and set aside. To support the issue of res subjudice, the learned counsel cited section 8 of the Civil Procedure Code, Cap 33 R.E 2019, which states that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Mr. Kamani cemented his submission by referring the case of Phillip Kimbwereza vs. International Commercial Bank (Tanzania) Ltd and 2 Others (Civil Case No. 19 of 2020) [2022] TZHC 14916. In his final analysis, Mr. Kamani prayed this court to dismiss the application with costs. Replying the first objection in respect of time limitation, the applicant submitted that he lodged the application online on 28th March 2024 but was unable to complete the process due to network problems. He stated that this issue also affected the respondent, who lodged the counter affidavit out of time for the same reason. It was replied further that the chamber summons was stamped on 29th April 2024, which is not the day the applicant lodged civil reference 5 application but rather the date when the chamber summons was issued to the applicant, as confirmed by the Deputy Registrar's stamp at page 2 of the chamber summons. The date that the applicant lodged the application in court is blank, as well as the signature of the court registry officer. The applicant insisted that the civil reference was lodged in time as confirmed at page 2, paragraph 11 of the affidavit. It was insisted that the delay in processing the documents was due to the court’s network breakdown. Responding to the second preliminary objection, the applicant explained that Land Appeal Case No. 65 of 2023 was an appeal against the drawn order of 13/02/2022 in Application No. 18 of 2017, which violated the provisions of Order XX Rule 7 of the Civil Procedure Code. That, Civil Reference No. 9045 of 2024 relates to the bill of costs in relation to Application No. 18 of 2017, which is entirely different from Land Appeal Case No. 65 of 2023, although parties are the same. The applicant concluded that the two preliminary objections have no merit and should be rejected with costs. Having summarized the parties' rival submissions, the question is whether the raised preliminary objections have merit? 6 On the first preliminary objection, Mr. Kamani informed this court that the application was filed beyond the prescribed time of 21 days. The applicant stated that, he lodged the instant application on 28/03/2024 and the same was stamped on 29/04/2024 which was not the day when he lodged the application. He insisted that the application was filed in time but there was network problem. In terms of Order 7(2) of the Advocates Remuneration Order, the applicant was supposed to file his application within twenty-one (21) days from the date of the impugned ruling of the bill of costs. Order 7(2) (supra) provides that: “7.- (1) Any party aggrieved by a decision of the Taxing officer, may file reference to a judge of the High Court. (2) A reference under order (1), shall be instituted by way of chamber summons supported by an affidavit and be filed within 21 days of from the date of the decision. Emphasis added In determining whether the instant application was filed within the prescribed time or not, the pleadings speak loudly. The pleadings show 7 that, after the impugned decision was delivered on 12/02/2023, the applicant, lodged the instant application for reference. However, there is a variation in the dates as the chamber summons show that it was stamped with a received stamp on 29/04/2024, while page 2 of the same shows that it was lodged in this court on 28/03/2024. Counting from 12/02/2024, when the impugned decision was delivered, to 29/04/2024, when the application was received in this court, marks 76 days, which is beyond the 21 days prescribed by law. Even if it is assumed that the application was lodged on 28/03/2024, it is still out of time as 41 days had elapsed from the date of the impugned ruling. According to paragraph 11 of the applicant's affidavit, the applicant averred that he was supplied with copies of the impugned decision on 12/03/2024, meaning that time should be counted from that date. With due respect to the applicant, the said decision was certified on 27/02/2024, meaning that it was ready for collection on that date. Counting from 27/02/2024, when the copies were ready for collection, to 28/03/2024, when this application was lodged, it is 31 days which is still out of the prescribed time. 8 The applicant averred that a network problem caused him to lodge the application out of time. With due respect, the applicant is trying to pre- empt the raised preliminary objection. Network problem sounds plausible, but it is misplaced as it was supposed to be advanced in an application for extension of time. Thus, the applicant was required to seek extension of time in which he could have advanced network breakdown as a reason for the delay. Considering the fact that the application was filed out of the prescribed time, the only available option is dismissal of the application, as rightly submitted by Mr. Kamani. That being the case, there is no need to determine the second objection as the first objection suffices to dispose of this application. In the upshot, I hereby dismiss this application with costs. It is so ordered. Dated and delivered at Moshi this 15th day of August, 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 9