Ruling Miscellaneous Land Application No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 18985 of 2024 (C/F Misc. Civil Application No. 5556 of 2024 in the High Court of Moshi at Moshi)

IN THE MATTER OF AN APPLICATION BY LUCY TRACY JOACKIM MINDE FOR SETTING ASIDE AN EX PARTE ORDER AND RULING.

BETWEEN 1. LUCY TRACY JOACKIM MINDE..…………….……..... APPLICATION

VERSUS 1. LAURA JOACKIM MINDE ......................................1ST RESPONDENT 2. SARA JOACKIM MINDE..…………..….…………..2ND RESPONDENT

RULING 15th October & 13th November, 2024 MONGELLA, J. The applicant has preferred this application seeking for several orders as enshrined in her chamber summons, to wit: one, that this Hon. Court be pleased to set aside the ex parte order and Ruling issued on the 3rd of July 2024 in Misc. Civil Application No. 5556 of 2024; two, that this Hon. Court grant an opportunity for the Applicant to present her submissions and be heard on the merits of the case; and three, that this Hon. Court order the reimbursement Page 1 of 13 of all expenses incurred by the administrators pertaining to the estate prior to the revocation of their appointments, as such costs are legally recoverable by the estate. The application is duly supported by her own sworn affidavit. In contest, the respondents filed their respective counter affidavits. The 1st respondent raised two points of objection, to wit: 1. That, the Application is time barred.

2. That, the Application is bad in law by combining prayers of setting aside ex parte ruling and reimbursement of expenses incurred by administrators prior to revocation, hence became omnibus application. The 2nd respondent also raised an objection as to the application being time barred. She however, never filed her written submission. This is taken to be as good as non-appearance on the date scheduled for hearing whereby the consequence is to dismiss her point of objection for want of prosecution, as I hereby do. The objections were argued in writing whereby the 1st respondent was represented by Ms. Ikoda O. Kazzy, learned Advocate. On the other hand, the applicant was unrepresented. Submitting on the 1st objection, Ms. Kazzy averred that according to Section 3 (1) of the Law of Limitation Act, [CAP 89 R.E 2019], where a matter is time barred it ought to be dismissed. She averred that under Item 5 Part III of the Schedule to the Law of Limitation Act, Page 2 of 13 time limitation for an order to set aside an ex parte order under the Civil Procedure Code is 30 days. However, the Applicant herein filed this application to set aside the ex parte order made by this Court in a Ruling issued on the 03.07.2024. This was more than 5 days after the expiry of the 30-days period set out by law. The learned Counsel further averred that the applicant ought to have taken action on or

before 01.08.2024. She thus challenged the applicant for failure to file first an application for extension of time to bring this application or to explain the reason for delay. Addressing the 2nd point of objection, Ms. Kazzy averred that the applicant was wrong to make a prayer for setting aside the ex parte Ruling and for reimbursement of expenses incurred by the administrators prior to revocation. She argued so on the ground that doing as the applicant did renders the application omnibus. She explained that the application is omnibus for as it contains two prayers founded on two different provisions of the law, which are not interlinked or interdependent, hence irregular and incompetent. To fortify her averment, she cited the case of Nurdin Mohamed Chingo vs. Salum Said Mtiwe and Another (Misc. Civil Application 29 of 2021) [2020] TZHC 6229 (4 February 2020) TANZLII. She finalized her submission by praying for the points of preliminary objection to be sustained and the application dismissed with costs. In reply to the 1st point of objection, the applicant averred that the Ruling in Miscellaneous Civil Application No. 5556 of 2024 was Page 3 of 13 delivered on 03.07.2024. She claimed to have submitted the current application through the Judiciary of Tanzania's electronic filing system on Friday, 02.08.2024, but the control number for payment was issued on Monday, 05.08.2024,

and payment was made on the same day. In the premises, she found the 1st respondent’s claim that it was filed on 06.08.2024 being incorrect and misleading. Arguing further, she averred that according Section 19(1) of the Law of Limitation Act, when computing the period of limitation, the day on which the ruling or order is made is to be excluded from the computation. In her stance therefore, the 30-days period began to run on 04.07. 2024 and ended on 02.08.2024. She added that, Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules 2018 provides that a document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted. Considering the provision of the law cited, she firmly held the view that the filing date in the Judiciary's electronic system is legally recognized as being the submission date, and the issuance or payment of control numbers is an administrative step that does not affect the filing date. Stressing on her point, she alleged that since the Ruling was delivered on 03.07.2024, which is excluded from the computation, the 30-days limitation period expired on 02.08.2024, the very day the application was filed electronically. The applicant further averred that respondent’s reference to 06.08.2024 is inaccurate, as it fails to account for the

correct computation of the limitation period and the legal principle that Page 4 of 13 filing is complete when the document is submitted through the e- filing system. In her view, the 1st respondent’s concern on this issue was a technicality discouraged under the law. She thereof cited the case of Fortunatus Masha vs. William Shija and Another [1997] TLR 154, where she alleged that the Court of Appeal of Tanzania held that the court should not allow technicalities to override substantive justice. In addition, she contended that the same principle is applicable in the case at hand as the filing date of 02.08.2024 is legally recognized, and subsequent administrative steps such as payment should not affect the validity of the application. In support of her stance, she referred the case of Chris George Kasalile vs. Tanzania Institute of Education & Another (Civil Application No. 775/01 of 2022) [2024] TZCA 199 (19 March 2024) TANZLII, where the Court of Appeal addressed delays caused by the payment process. The applicant further requested the Court to allow the inclusion of the electronic filing printout as it appears in the Judiciary system under admission, along with the payment receipt, to clarify the actual date of submission even though it is generally not permissible to submit evidence within submissions. She claimed that the nature of this preliminary objection justifies

such an exception. To buttress her point, she referred the case of Fredy Mbeyela vs. Tanzania Education Authority (Revision Application No. 269 of 2021) [2022] TZHCLD 659 (13 May 2022) TANZLII. To that effect, she annexed the printout of online filing information and her payment receipt. Page 5 of 13 Reacting to the 2nd objection, the applicant claimed that both prayers arise from the same factual context; her role as administrator and the expenses incurred in fulfilling that role. Citing the case of Tanzania Knitwear Ltd vs. Shamshu Esmail [1989] TLR 48, she asserted that combining multiple prayers in one application is not objectionable. She further cited the case of Misozi Mganga vs. Muya Sekondo (Administrator of the Estate of the Late Sekondo Lugoda) & 2 Others (Misc. Land Application 749 of 2022) [2023] TZHCLandD 30 (26 January 2023) and MIC Tanzania Limited vs. Minister for Labour and Youth Development (Civil Appeal No. 103 of 2004) [2006] TZCA 156 (12 December 2006) both in TANZLII, which she alleged to have reaffirmed the said principle. She further sought refuge under the overriding objective principle found in Sections 3A and 3B of the Civil Procedure Code arguing that the provisions emphasise that courts should focus on substantive justice rather than procedural technicalities. She added that the provisions demonstrate that the court's role is to ensure justice is

delivered efficiently and at an affordable cost. In her view, combining the two prayers supports these objectives by preventing unnecessary multiplicity of proceedings and promoting judicial efficiency. She averred that since prayers arise from the same legal and factual context, there is no legal basis to consider the application omnibus. In alternate, the applicant claimed that in case the application is found omnibus on the face of the record then the Court is justified in offering the Applicant room to amend the application for Page 6 of 13 interests of justice and upholding public confidence in the Court system, rather than striking out the application altogether. Reacting to the case of Nurdin Mohamed Chingo vs. Salum Said Mtiwe (supra) the applicant found the same misplaced arguing that the case dealt with prayers based on different legal provisions that served distinct purposes. In contrast, she said, the present application involves interlinked prayers arising from the same set of facts. She further alleged that the combination of the two prayers in this application is permissible under the law, as they are logically connected and arise from the same factual situation. In the circumstances, she prayed for the point of objection to be dismissed. Rejoining, Ms. Kazzy averred that it is undisputed that the Ruling in Misc. Civil Application No. 5556 of 2024 was delivered

on 03.07.2024 and that the time limitation for an order to set aside an ex parte order under the Civil Procedure Code is 30 days. In the premises, she held the stance that since the applicant was aware of the date when the ex parte Ruling was pronounced, the computation of period of limitation started from 03.07.2024 rendering the 30 days for filing the application to set aside the ex parte Ruling to expire on 01.08.

2024. Commenting on the import of Section 19 (1) of the Law of Limitation Act, she contended that the provision provides for automatic exclusion of period, hence not applicable to the instant application. Page 7 of 13 She challenged that although the applicant alleged to have electronically filed the application on 02.08.2024 and the control number issued on 05.08.2024, she was still out of time. Referring to Section 60(1)(a) of the Interpretation of Laws Act, [CAP 1 R.E 2019], he further contended that the day the decision was pronounced is also included in computation of time. In his view, the computation of period in the instant application started from 03.07.2024 to 01.08.2024 thereby rendering the application at hand filed out of time when filed electronically on 2nd August 2024. Rejoining on the 2nd limb of the preliminary objection, Ms. Kazzy insisted that the applicant combined two prayers founded on two different provisions of the law which are not interlinked or interdependent. She still considered the act rendering the application omnibus, hence irregular and incompetent. Challenging the applicant’s act of seeking refuge under the overriding objective principle, Ms. Kazzy contended that the chamber summons filed cannot be cured since it goes to the root of the application. In the premises, she found the principle of overriding objective not applicable in the

circumstances of this application. Arguing further, she averred that the principle of overriding objective cannot be applied blindly and was not introduced with intention to violate well laid down legal procedures. She fortified his assertion with the case of SGS Societe General DE Surveillance SA and Another vs. VIP Engineering & Marketing Ltd and Another, Civil Appeal No. 124 of 2017, (unreported). Page 8 of 13 Concluding, she maintained her position that the application is incompetent and bad in law and called for the same to be struck. She vehemently disputed the applicant’s prayer to have to application amended arguing that there is no amendment to an incompetent application. After considering the rival submissions by the parties, I shall address both points of preliminary objection as advanced by the 1st respondent. Under the 1st point of objection, the 1st respondent challenges the application for being time barred. As argued by the applicant, while submissions are not the place to produce evidence, the nature of this objection would require to some extent the observation of some facts outside pleaded facts. Rather than the applicant’s print outs, I took the liberty to visit the E-Case Management System (eCMS). With the advancement within the judiciary, every detail pertaining, filing and admission of cases within the system is recorded. Upon viewing the digital case

file, I found that this application was filed on 02.08.2024 and admitted on 05.08.2024. Of relevance in this matter is the fact that the electronic filing took place on 02.08.2024. According to Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules 2018, the date of filing is recorded as the date the document is submitted in the system. As it was already in the system and thus in the process for admission, it Page 9 of 13 can be stated that it came before the Court on the material date of 02.08.2024. With respect to computation of time, I agree with the applicant that in computing the time, the date from which the computation is to start is excluded. This is well provided under Section 19 (1) of the Law of Limitation Act, which states: “In computing the period of limitation for any proceeding, the day from which such period is to be computed shall be excluded.” The time within which a party may seek to set aside an ex parte order under the Civil Procedure Code is 30 days. This is provided under item 5 Part III of the Schedule to the Law of Limitation Act. The relevant provision under the Law of Limitation Act does not provide a specific date on which such period would be computed from. In that regard Section 60 (1) (a) of the Interpretation of Laws Act is inapplicable. The provision instead offers an interpretation on computation of time when an action

is to be taken from a particular day or event. This is found under Section 60 (1) (b) of the Interpretation of Laws Act, which reads: “60 (1) In computing time for the purposes of a written law— (b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period;” Page 10 of 13 From the wording of the above cited provision, it can be stated that the period of 30 days provided under the Law of Limitation Act means that the date of decision is excluded. Therefore, in the matter at hand, computation commenced from 04.07.2024 to 02.08.2024 rendering this application well brought within time. In foregoing observation, the 1st point of objection is found without merit and overruled accordingly. Under the 2nd point of objection, the 1st respondent challenges the application for being omnibus for containing multiple prayers. The law is settled that an omnibus application is not permissible. However, there is an exception where the prayers made are diametrically related. In that regard, courts impose this test of relatability of prayers made in determining whether the application is omnibus or otherwise. Example, the Court of Appeal in MIC Tanzania Limited vs. Ministry for Labour and Youth Development and Another, Civil Appeal No. 103 of 2004 (unreported) faced a situation where a chamber summons contained three distinct

prayers. In resolving the issue, it expounded: "Having perused the Chamber Summons and its supporting affidavit as well as the respondent's Counter Affidavit in the High Court, we are satisfied that the three prayers were properly combined in one Chamber Summons. They are not diametrically opposed to each other, but one follows the other. Once extension of time is granted then an application for leave follows. As the respondents appear to concede, once leave is granted then the court may, in its discretion, grant or refuse to grant an order for stay of execution of Page 11 of 13 the challenged decision. Viewed from this perspective, the reason for combining the three prayers in one chamber summons becomes obvious: The application was, therefore competently before the High Court". The applicant has sought two prayers in her chambers summons: one, that this Court sets aside the ex parte order issued on 03.07.2024 in Miscellaneous Civil Application No. 5556 of 2024; two, that this Court grants the applicant an opportunity to present her submission and be heard on merit; three, that this Court orders the reimbursement of all expenses incurred by the administrators pertaining the estate prior to revocation of their appointments, as the costs are legally recoverable by the estate and; four, that this Court grants any other relief it deems fit and just. From the outset, the 1st and

2nd prayers appear to be related to each other as the applicant seeks for the ex parte order issued by this Court to be set aside so that she could present her submission. There is also nothing wrong with the 4th prayer as the applicant seeks any relief within the discretion of this Court, as found fit and or just by this Court. The 3rd prayer however, presents an entirely different issue. In this prayer, the applicant seeks for this Court to make alterations on its Ruling in Miscellaneous Civil Application No. 5556 of 2024. This is a clear indication of challenging the relevant Ruling by this Court. Such remedy is only accessible in an appeal or revision, depending on circumstances of the case. In foregoing observation, the 1st and 2nd prayers by the applicant are found to vary and contradict with the 3rd prayer. The law is clear Page 12 of 13 that the remedy where an application is found omnibus is for the same to be struck out. This position was emphasized in the case of Justine F. Bufure vs. Haji R. Mwikalo (Civil Appeal No. 292 of 2023) [2024] TZCA 85 (22 February 2024) whereby the Court of Appeal stated: “We are aware that the law is settled and clear that ordinarily an omnibus application is not permissible in law unless the prayers sought for are not diametrically opposed to each other. We have in several occasions declared an omnibus application incompetent and the

remedy has been to strike it out.” See also; Bank of Tanzania vs. Zuhura H. Mbulu (Civil Appeal No. 207 of 2021) [2024] TZCA 545 (11 July 2024) and Hamis Mdida & Another vs. The Registered Trustees of Islamic Foundation (Civil Application No. 330/11 of 2022) [2023] TZCA 17721 (4 October 2023). Owing the analysis I have made hereinabove; this application is found to be omnibus for containing diverse and contradicting prayers, hence incompetent before this Court. Consequently, the same is hereby struck out. Each party to bear her own costs. Dated and delivered at Moshi on this 13th day of November, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 13 of 13