martin nicas manya vs stivin gati mwita another 2022 tzhclandd 151 28 february 2022

THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 224 OF 2021 (Arising from Misc. Land Application No. 642 of 2019 by this Honourable Court) MARTIN NICAS MANYA............................................... APPLICANT VERSUS STIVIN GATI MWITA............................................ 1st RESPONDENT MATINDE INKAIN (Administrator of the estate of the late MAMA AKIDA................................................ 2nd RESPONDENT RULING Date of last Order: 17.02.2022 Date of Ruling: 28.02.2022 A.Z MGEYEKWA, J This is an application for setting aside the dismissal order made by this court made on 21st April, 2021 in Misc. Land Case No. 642 of 2019. The application is brought under Order IX Rule 9 (1) and section 95 of the Civil i Procedure Code Act, Cap.33 [R.E 2019]. The application is supported by an affidavit of Anindumi Jonas Semu, learned Advocate. The application has encountered arduous opposition from the respondents, vide a joint counter-affidavit deponed by Stivin Gati Mwita and Matinde Inkain (Administrator of the deceased estate of late Mama Akida), the respondents. It transpired that the respondents had on 23rd September, 2021 raised two points of objection which for easy reference, I find apt to reproduce as hereunder:- 1. This Application is time-barred. 2. The Application is an abuse of the court process. When the matter was called for hearing before this court on 25th November, 2021. The respondent urged this court to argue their application by way of written submission. By the court consent, the respondents filed their joint submission in chief on 16th December, 2021 and the applicant did not comply with the court order. When the matter was coming for mention on 17th February, 2020 the applicant prayed for an extension of time to file his reply. The court order him to file a reply on 22nd February, 2022. The respondents waived their right to file a rejoinder. 2 It was the respondents who kicked the ball rolling. They contended that the applicant’s application for restoration of the dismissal of Land Case No. 642 of 2019 is filed out of time. It was his submission that Land Case No. 642 of 2019 originated from Misc. Land Application No. 576 of 2018 which was dismissed by Hon. Maige, J (as he then was) on 21st April, 2021. The respondents argued that there were previous cases and applications before this court; Case No. 576 of 2018 originating from Misc. Land Application No.243 of 2016 and Misc. Land Appeal No. Ill of 2008 and this court issued a Ruling on 22nd July, 2016 by Hon. Ndika in favor of the respondents. The respondents in their submission went on alternative to the preliminary objection, the applicant grounds of setting aside this court dismissal order dated 21st April, 2021 and another order dated 06th August, 2019 to restore Misc. Land Application No. 576 of 2018 is baseless and lacks merits. They added that the applicant has the same repeated reasons that he is unwell and that he was attending checkups at Muhimbili National Hospital. They added that the applicant produced the same hospital documents with the same date of examination bearing the same handwriting and the same person who signed the documents. 3 In conclusion, the respondents beckoned upon this court to find that the applicant's instant application is hopelessly time-barred. The applicant started by correcting the provision cited in the chamber summons, Order IX Rule 9 (1) replaced the same with Order IX Rule 6 (1) of the Civil Procedure Code, Cap.33 [R.E 2019], He stated that it was a slip of the pen. In his counter argument, the applicant submitted that the instant application is not time-barred. He submitted that in Item 4 of Part III of the Law of Limitation Act, Cap.89 [R.E 2019] the limitation period is 30 days for the applicant to lodge an application under the Civil Procedure Code to set aside a dismissal order of this court. The applicant went on to submit that the present application is within time since the dismissal order was delivered on 21st April, 2021, and the application to set aside the dismissal order of this court was lodged on 18th May, 2021. It was his view that the instant application is lodged within 30 days. Before the determination on merit, I have to say that in submissions against and for the preliminary objection, parties are required to focus on the point of law instead of submitting on irrelevant matters. The respondents submitted in length on the merit of the application and dared to ask this court to find that the applicant has not exhibited justifiable 4 reasons to warranty setting aside the dismissal order by Hon. Maige, J (as he then was) while the matter is related to the preliminary objection Again, in his reply, the applicant started to beg this court to make corrections by amending the provisions appearing in Chamber summons, his submission is misconceived. He was required to obtain leave to amend his chamber summons before the hearing of the preliminary objection. Instead of preempting the preliminary objections raised by the respondents. I have considered the respondents' and the applicant's arguments for and against the application. From the parties I rival submission, the issue for determination is whether the application is time-barred. Having scrutinized the preliminary objection and the records, without wasting the precious time of this court, from the outset I have to say that the preliminary objection is demerit. Glancing through the record, it is revealed that Land Case No. Application No. 642 of 2019 was dismissed by this court on 21st April, 2021, and the applicant lodged the instant application on 18th May, 2021. The limitation of time to file a dismissal order is stipulated under Item 4 of the 1st Schedule Part III of the Law of Limitation Act, Cap. 89 [R.E 2019] is 30 days. For ease of reference I reproduce the above part as here under: 5 For an order under the Civil Procedure Code or the Magistrates’ Court Act, to set aside a dismissal of a suit thirty days. ” Pursuant to the above provision of the law, the period of limitation started to run from the date when this court issued the dismissal order on 21st April, 2021 to the date when the applicant lodged the instant application on 18th May, 2021, then, by simple computations, the timeline for filing the instant application was on 20th May, 2021. As the record shows clearly that, the present application was instituted on 18th May, 2021 which was within the prescribed time by the law. Thus, it is obvious that the respondents' preliminary objection cannot stand. The respondents have fronted the above preliminary objections to challenge the competency of the application. I have endeavoured to demonstrate above that those objections have no merit. I accordingly overrule them without costs. Order accordingly. DATED at Dar es Salaam this 28th February, 2022. A.Z.MGEYEKWA JUDGE 28.02.2022 6 Ruling delivered on this date 28th February, 2022 in the presence of both parties. A.Z.MG^EKWA JUDGE 28.02.2022 7