mathias mfumya others vs christopher nyirabu others 2018 tzhc 2854 29 june 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 8 OF 2017 MATHIAS MFUMYA............................................................. 1st APPLICANT TAUSI H. RAJ ABU............................................................... 2nd APPLICANT FRANK ONESMO NGARAMA................................................. 3rd APPLICANT JULIUS AINAMEN MCHAU................................................... 4th APPLICANT ALEX KISIMA..................................................................... 5th APPLICANT GERADI BIYAKA................................................................7th APPLICANT NASRA RAMADHANI KIPONZA............................................ 8™ APPLICANT DEO PHILIP TEMBA............................................................9th APPLICANT PANTALEO P. MBENA.........................................................10™ APPLICANT REUBEN JACKSON CHAULA................................................11™ APPLICANT EDMUND GRATIAN............................................................12™ APPLICANT MWAFITINA PONZA........................................................ 13™ APPLICANT JEREMIA MREMA.............................................................. 14™ APPLICANT ABELI TWAZA................................................................... 15™ APPLICANT KHALIDI MAULID HINTAY.................................................16™ APPLICANT

VERSUS CHRISTOPHER NYIRABU................................................. 1st RESPONDENT FLUMENCE LEODGAR LUPINDU....................................... 2nd RESPONDENT ALEX LUPINDU................................................................3rd RESPONDENT HAMIS A.K.A HAMIS BONGE......................................... 4th RESPONDENT 29/05&29/06/2018

RULING MWANDAMBO, 3 On 26th January 2017, the Applicants field in this Court an application under sections 68(e) and 95 of the Civil Procedure Code, Cap 33 [R.E 2002] henceforth to be referred to as the CPC. The application seeks an order for the suspension of execution of an ex parte decree of thisCourt passedagainst the 2nd, 3rd and 4th Respondents on 5th June 2015. The affidavitsupporting the application is sworn by Mathias Mfumya, Edmund Gratian and Jeremia who are 1st, 12th and 14th Applicants respectively for and on behalf of 16 Applicants to the application. The 1st Respondents who is represented by Mr. Francis Mgare learned Advocate has filed a cocunter affidavit resisting the application simultaneous with a notice of preliminary objections containing three grounds which I am now called upon to determine in this ruling. According to the chamber summons, the Applicants claim to be owners of parcels of land on plot No. 244 Kitunda area, Ilala Municipality in the City of Dar es Salaam. The said plot is subject of an ex parte judgment delivered on 05th June, 2015. Pursuant to the said judgment, the Court declared the 1st Respondent as the rightful owner of that plot against the 2nd, 3rd and 4th Respondents. The Applicants who were not parties to the suit became aware of the existence of the judgment on 2 10th October, 2016 when the 1st Respondent was in the process of

execution of the decree through a Court Broker appointed by this Court. Since they were not parties, they could not challenge the ex-parte judgment and decree neither could they appeal against it. The only recourse available to them was revision before the Court of Appeal which could be commenced within sixty days from the date of the ex- parte judgment. By the time they became aware of the decree, the time for seeking revision had already expired which necessitated the Applicants who enjoy the services of Mr. Wilson Edward Ogunde, learned Advocate to lodge a notice of motion in the Court of Appeal seeking extension of time within which to apply for revision and this they did on 21st December, 2016 through Civil Application No. 520 of 2017 which is yet to be determined. The filing of the application in the Court of Appeal has just dealt with only part of the ex parte judgment but the risk of eviction is still nagging and this is the reason the Applicants have filed the instant application to mitigate that risk. So much for the factual background which takes me head on with the examination of the submissions for against the preliminary objections. The grounds forming the notice of preliminary objections are as follows:- 1. The deponents have not been properly authorized to depone for and on behalf o f the rest o f the Applicants.

2. The application is hopelessly time barred.

3. The application for stay is not maintainable as they (Applicants) were nor parties to Land Case No. 56 o f 2012 not is there any pending proceedings in Court With the Court's leave, the learned Advocates for the parties filed written submission for and against the preliminary objections. Without delving into the submissions, the first preliminary Objection can be easily disposed of on the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors 3 Ltd [1969] EA 696 cited with approval by the by the Court of Appeal of Tanzania in various cases particularly Sugar Board of Tanzania V. 21st Century Food Packaging Limited and 2 Others, CAT Civil Application No. 49 of 2005 (unreported ) in which the Court of Appeal reiterated the position thus:- "A preliminary objection is in the nature o f a legal objection not based on the merits or facts o f the case, but stated legal\ procedural or technical grounds. Such an objection must be argued without reference to evidence. The fundamental requirement is that any alleged irregularity, defect or default must be apparent on the face o f notice o f motion so that the objector does not condescend to affidavits or other documents accompanying the motion to support the objection ..."( at page 3, emphasis supplied). The purported objection does not qualify to be a pure point of law to be argued as such more so when that same

point is a subject of contention in the affidavit and counter affidavit. It cannot be determined as a preliminary objection without looking at the evidence or some other documents to determine whether the deponents to the affidavit were indeed authorized by the rest of the Applicants to swear the affidavit on behalf of them. The 1st Respondent alludes to the mandate as illegal in para 2 of his counter affidavit and so having so contended, he cannot take theme point as a preliminary objection known in law. In the circumstances, I cannot but endorse the submissions by the learned Advocate for the Applicants and dismiss the first preliminary objection for being legally misconceived. The second, ground in the notice of preliminary objections is that the application is hopelessly time barred. Mr. Francis Mgare learned Advocate for the 1st Respondent submits that the application falls under item 21% part III of the schedule to the Limitation Act, Cap 89[ R.E. 2002] which sets sixty days' 4 time limit for applications whose period is not specifically prescribed. It is the learned Advocate's submission that since the Applicants admit that they became aware of the ex parte decree on 10th October 2016/they ought to have filed the instant application by 9th December 2016 and so the filing of it on 26th January 2017 was beyond sixty days warranting an order dismissing the same. For his

part, Mr. Wilson Ogunde learned Advocate for the Applicants submits that the objection is misconceived because the filing of the instant application was predicated upon seeking extension of time to file an application for revisions before the Court of Appeal. It is the learned Advocate's submission that without that application, the Applicants would not have any locus standi to seek suspension of the execution of the decree and so the time for instituting the instant application must be reckoned from 21st December when the application for extension of time was lodged in the court of Appeal vide Civil application No. 520/17 of 2016. In the premises, the learned Advocate argues that the filing of the instant application on 26th January, 2017 was perfectly within time and so the preliminary objection should be dismissed. I have examined the submissions by the learned Advocates and I think the answer to the issue rests on the proper interpretation of sections 5 and 6(m) of Cap.

89. Section 5 stipulates: 5. Subject to the provision o f this Act the right o f action in respect o f any proceedings, shall accrue on the date on which the cause o f action arises. And Section 6 (m) provides: (m) in the case o f an application for execution o f a decree or enforcement o f an order passed or made in any proceedings, the right o f action shall be deemed to have accrued on the date on which the decree was passed or as the case may be; the order was made" 5 The decree in the instant appeal was passed on 5 June, 2015 more than a year and four months before the Applicants became aware of it but the 1st Respondent's right to enforce that decree accrued on that date. However, the Applicants were not parties to the ex parte decree and so they could not have challenged that decree by way of appeal and seek for stay of its execution on that date. There is no gainsaying that section 6(m) of Cap 89 refers to an application for execution but on a proper construction it seems wide enough to cover applications for stay of execution so much so that the time for seeking stay must be reckoned from the date of the decree or at the latest the date on which a person like the Applicants becomes aware of its existence. By the Applicant's own admission, they became aware of the existence of the ex parte decree on 10th October, 2016. Mr. Ogunde learned Advocate urged me to accept that

the time must be reckoned from the date the Applicants lodged their application for extension of time for revision before the Court of Appeal because that is the date on which the Applicants acquired locus standi to apply for execution but he cited no authority in support of that argument. I appreciate the argument canvassed by the learned Advocate but I respectfully disagree with him in the light of unambiguous legal position in sections 5 and 6 (m) of Cap 89. At any rate, even assuming that the argument was legally sound, it defeats logic and common sense that a litigant can take as much time as he wishes to acquire locus standi as it were. Even if it was so, the Applicants have not explained away the period between 10th October, 2016 and 21st December 2016 when they lodged the application for extension of time before the Court of Appeal. Indeed, by that time sixty days period had already expired and so the application for stay of execution could not have been filed without first obtaining an order for extension of time. Worse still, it took more than a month from 21st December, 2016 to file an application for stay of execution a period of a hundred and six days from 6 the date on which the Applicants became aware of the existence of the ex parte decree. As rightly submitted by Mr. Mgare, the Applicants had up to 9th December 2016 to lodge the instant application failing

which an application for extension of time ought to have been made. There being no order extending the time for instituting the instant application beyond sixty days per item 21 of part III to the Schedule under Cap. 89, the filing of the application on 26th January 2017 was hopelessly out of time. In consequence I would have no hesitation in upholding ground two in the notice of preliminary objections and hold that the application is indeed time barred as submitted by Mr. Mgare, learned Advocate. Since my determination of the second ground is sufficient to dispose of the application, discussing the third ground in the notice of preliminary objections will be superfluous. In the event, the application which I have held to be time barred is hereby dismissed under Section 3 (1) of Cap.

89. The 1st Respondent is awarded his costs. Order accordingly. Dated at Dar es Salaam this 29th day of June 2018 7