20080605 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 11 OF 2004 1. LUANGA MWAIMU 2. FRED MUTAHYABARWA .......................... APPELLANTS VERSUS r 1. THE CHIEF ACADEMIC OFFICER UNIVERSITY OF COLLEGE OF LAND AND ARCHITECTURAL STUDIES ... 1 sT RESPONDENT 2. ATTORNEY GENERAL .............. 2ND RESPONDENT Date of last Order: 01/04/2008 Date of Ruling : 05/06/2008 RULING MLAY, J. LUANGA MWAIMU and FRED MUTAHYABARWA filed an application by Chamber Summons on 16/2/2004, seeking "leave to apply for orders of Certiorari and Mandamus to bring the decision of the Senate of the University College of Lands and Architectural Studies of the University of Dar es salaam made on the 26th September, 2000 into this Honourable Court and quash the same and compel the same to make appropriate ·•, decision according to laul'. The named Respondents are the Chief of Academic Officer of the University College of Lands and Architectural Studies and the Attorney General. Having filed a counter affidavit through Mr. Paul Joel Ngwene, learned State Attorney, the Respondents also gave notice of a preliminary objection on the following ground: "The application ls misconceived hopelessly out of time contrary to section 18 (3) of Act. No.55 of 1968". When the application came up on 21/2/2006, this court made an order that the preliminary objection be disposed of by way of written submissions, and a schedule of filling the submissions was set. To cut a long story short, the Respondents did not file the written submissions and on 1/11/2007, the preliminary objection was dismissed for failure to file the submissions. The main application was accordingly set for hearing and on 1/8/2008. On the application by the applicants advocate, with the consent of the Respondents, it was ordered that the application be disposed of by way of written submissions, which have duly been filed and will be considered in this ruling. 2 The applicants through their advocates Maira and Company made submissions on the merits of the application but the Respondents submissions have been based not on the merits of the applications, but on the ground that the application is time barred. The applicants advocate did file a reply to the Respondents submissions on the issue raised that the application is time barred. The Respondents submission that the application is time barred, is by its nature, a preliminary objection on a point of law, because if it is determined in favour of the Respondents, it will determine the whole application. This position was made clear in the case of MUKISA BUSCUIT MANUFACTURING CO. LTD Versus WEST END DISTRIBUTORS LTD [1969] E.A 696. For this reason thi~ question has to be considered first, before the application can be determined on merits. In the written submissions, the Respondents referred to the preliminary objection which they had raised earlier on that; "The application is misconceived and hopelessly out of time contrary to section 19 (3) Cap 310 of the Revised Edition of the Laws 2002". The learned State Attorney on behalf of the Respondnets contended that the Applicants received letters of discontinuation from studies on 26/9/2000 from the Senate of the 1 st Respondent and brought the matter 3 ., to court to seek legal reliefs. He quoted the prov1s1ons of section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E 2002 which state: "In the case of An application for an Order to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of proceeding or such shorter period as may be prescribed und erany ........ . " Armed with the above prov1s1ons, the learned State Attorney argued that there is no dispute that the Applicants were discontinued from their studies on 26/9/2002. He submitted that the Applicants were supposed to file their application within six months, counting from the date of the decision. The learned State Attorney contended that the applicants filed this application on 16/2/2004. He submitted that the application cannot be justified as it is time barred by reason of section 19 (3) Cap 310 RE 2002, for having been filed after the lapse of three years .. 4 \ \ In their submissions in reply, the Applicants advocate Maira and Company did not submit on the point raised that the application was time barred. Instead, they referred to the fact that the same preliminary objection was raised by the Respondents and the Respondents defaulted to file submissions as ordered and as the result "the objection was overruled and dismissed with costs, and the application for leave was ordered to proceed for hearing". The learned advocates complained that "Surprisingly the second Respondent is bringing the preliminary objection which was dismissed by this Honorable court". The Respondents advocate submitted further that; and I quote: "Its our humble and respectful submission that the first Respondent submission that preliminary objection can be raised at anytime during the proceedings of the suit provided is totally misconceived. The point which deserves attention of ' the Court is that the same preliminary objection has been raised and dismissed with costs. 5 How can a respected officer of the Court bring the same· matter for attention of the Court? My Lord this is a pure abuse of Court process. We further submit that this Honourable court is regulated by procedures which should be respected by court officers". On the strength of the above submissions, the Applicants advocates prayed that the application for leave be granted. The objection raised by the Respondents that the application for leave to apply for orders of certiorari and mandamus which was filed on 16/2/2004 is time barred, has not been contested by the Applicants. On the contrary, the Respondents appear to confirm the fact in paragraphs 12 of their affidavits supporting the application, in which they have deposed as follows: "12. However on the 26th day of September, 2000 we were officially informed of Discontinuation from studies vide letter no. (CONF.51 Vol. V stated) .......... ". 6 Since the point raised in the objection has not been contested, the only remaining issue for determination is whether or not, the objection can be raised again at this stage of hearing the application, when the same objection was dismissed earlier on, after the Respondents had defaulted in filling written submissions. Unfortunately, the Applicants advocate did not cite any provision of the law or any authority in a decided case, to support the Applicants submissions that the matter cannot be raised or that if raised at this juncture, is an abuse of the court process. On the contrary, the chain of authorities are to the effect that the issue of jurisdiction or limitation, can be raised at any point of the proceedings and even on appeal. Even if this court does not consider the issue now as proposed by the Applicants, the issue can be raised and considered if there is an appeal and it can be raised either by the parties, or at the instance of the appellate court. Even after the dismissal of the preliminary objection for default of filing written submissions, this court had the power to raise and consider the issue suo motu. Since the preliminary objection is on limitation and it was dismissed without being determined on merits, the respondents are entitled to rise it at this stage and this court is bound to determine the matter. 7 • Unless the Applicants are able to· show that the application is otherwise in time, since they were "officially informed of Discontinuation from studies" on the 26 th day of September 2000, as admitted by the Applicants 1n paragraphs 12 of their affidavits, this application which as filed on 16/2/2004, is hopelessly out of time and ought to be dismissed. The applicants have not argued that this application is otherwise in time but have relied entirely on the previous dismissal of the preliminary objection which was done not on merits, but upon failure of the Respondents to file written submissions. As demonstrated earlier on, the said dismissal does not preclude the Respondents or even this court from raising the issue of limitation. The application for leave to apply for the orders of certiorari and mandamus having been filed out of time 1n contravention section 19 (3} of the Fatal Accident (Miscellaneous provisions} Act, Cap 310 RE 2002, this application is dismissed with costs. J.I. . JUD E. --- 8 Delivered in the presence of Ms. Irene advocate for the Applicants and in the presence of Ms. Mwaikambo State Attorney, this 6 th day of June 2008. JU k:; 5/6/2008. 9