RULING MATHIAS MLIGO VS A

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COUT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA MISC. CIVIL CAUSE NO 17180 OF 2024 MATHIAS MLIGO ………………………………………………………1ST APPLICANT BATAZALI LUSIGI …………...……………..………………………..2ND APPLICANT JUMA MWAMBIJI ……………………………………………………..3RD APPLICANT RAJABU KITAMBI ……………………………………..………………4TH APPLICANT VERSUS THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA…………………………………..RESPONDENT RULING Date of hearing: 10/09/2024 Date of ruling: 22/10/2024 NONGWA, J. The applicants are seeking leave to apply for prerogative orders of certiorari and prohibition. It is made under the provision of sections 2(3) of JALA, 18(1), 19(2) of the Law Reforms (Fatal Accident Miscellaneous Provision) Act, Cap. 310 and rule 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014. Orders sought are found in the 1 chamber summons and accompanied by statement and affidavit. The respondent opposes the application through counter affidavit. Further has filed a notice of preliminary objection that; 1. The suit is hopelessly time barred 2. The affidavits in support of the application are fatally defective for containing hearsay statements, objections, arguments and conclusion. As has been the practice of the court to dispose first preliminary objection once raised, on the hearing date, the applicants appeared in person whereas the respondents had the service Mr. Joseph Tibaijuka, state attorney from the Office of Solicitor General. The objection was argued by filing written submission. In the submission the state attorney started with pre-empting the applicants from arguing that the objections raised were not on pure point of law. He cited the case of Mukisa Biscuits Manufactures Company Limited vs West End Distributors Limited [1969] EA 696 on that objection must base on contravention of the law, that is from pleaded facts and out of pleadings and if argued must dispose of the suit. Submitting on the objection that application is time barred, Mr. Tibaijuka referred to paragraphs 7, 6 and 5 of the applicants’ respective affidavits in which it is stated the complained decision was issued on 20 2 October 2023. Further that per paragraph 18 and 19 of affidavit of the first and second applicant, they filed Misc. Civil Cause No. 8246 of 2024 which was withdrawn with leave to refile on 23/5/2024 and this application filed on 17/7/2024. Counsel said from 20 October 2024 to 17/7/2024, this application was filed beyond six months set by the law. Mr. Tibaijuka went on to state that once a party is granted leave to refile the matter by the court he is bound by law of limitation in the same manner as if the first case had not been instituted. He supported the stance by the case of this court in Flomi Hotel Limited vs Equity Bank Tanzania Limited, Civil Case No. 2021 [2002] TZHC 11303 (3 August 2022). He stated the cited case was on Order XIII Rule 2 of the Civil Procedure Code, however the principle is applicable to this application vide rule 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014. Armed with the above authority prayed the application to be dismissed under section 3 of the Law of Limitation Act (the LLA). In reply, Mr. Kambole submitted that the previous application was filed within time and the same was withdrawn with leave to refile on 23/5/2024. He stated the court order allowing the application to be refiled had effects of resetting any deadline that normally apply without being 3 bound by previous statutory time limitation. According to the counsel the respondent has misinterpreted the order of 23/5/2024 which did not fix any specific time to refile. The applicants’ counsel cited section 21 of the LLA which excludes time of proceedings during which the plaintiff bonafide has been prosecuting, with due diligence, another civil proceeding, founded upon the same cause of action and is prosecuted in good faith. Counsel submitted that section 21 of the LLA gives the applicant more time to file the new suit as the period during which they were pursuing the earlier case does not count towards the limitation period. The counsel referred the court to section 46 of the Act governing periods of limitation prescribed by other written laws to include proceedings prosecuted under Cap 310. The case of M/S P & O International Limited vs Trustees of National Parks Tanapa, Civil Appeal No. 265 of 2020, relied by the respondent was distinguished with the case at hand in that in the former the applicant never filed any matter within six months. Concluding on the first objection, Mr. Kambole has submitted that leave to refile is pleaded in the applicants’ affidavits and admitted by the respondent in the counter affidavits filed. Thus prayed the objection to be rejected. 4 I have considered rival arguments on the objection that the application is time barred. Parties are in agreement that the applicants filed the first application on time, at the instances of the applicant’s counsel on 23/5/2024, the same was withdrawn with leave to refile. Parties are locked horn on when the time to file another application started to run. The respondent has submitted that withdrawal and leave to refile did not stop period of limitation from running counting from when the complained act happened, 20/10/2024. The applicants have a contrary view, they have submitted that leave to refile halted the previous period of limitation, if I understood them well, time started to run from the date leave to refile was granted. Further that they are covered by section 21 of the LLA. I have given due weight arguments of both parties for and against the objection, it is settled position that law of limitation operates that time starts to run when the plaintiff becomes aware of an act giving rise to a cause of action. The question lies with the interpretation of the court order which granted leave to refile. Withdrawal and refiling suit trace its root under the order XXIII rule 1 and 2 of the Civil Procedure Code, Cap 33 R: E 2019. It proves, 5 ‘1(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.’ From the above while the law permits courts to allow suits to be withdrawn and refiled, it must be upon some terms. The effects of with withdrawal and leave to refile the suit is provided under rule 2 of order XXII, it reads; ‘In any fresh suit instituted on permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.’ The above is clear that leave to refile does not stop running of time, unless the order granting leave to refile provides otherwise. In the present application the order which granted the applicant leave to refile is quoted; 6 ‘Timothy Mwamakimbula: The matter is coming for mention. We pray to withdraw the application with leave to refile because Judicial Review must be heard within 14 days of filing. The fourteen days have lapsed. Order: The matter is withdrawn with leave to refile.’ The above order granting leave to refile did not attach any condition, it is plain and unambiguous, that is why Mr. Kambole submitted that the order did not specify time within which to refile the new application. In my view failure to specifically state when the refiling of the application was to be done, means time taken in pursuing the previous application was not excluded. Position would have been different if the applicant was given time frame to file the new application as that would mean, automatic extension of time. A lucky may be there is judicial pronouncement on the effects of the order to withdraw a suit and refile. In National Health Insurance Fund Another vs Grace Lobulu Others, Civil Appeal No. 521 of 2022 [2024] TZCA 259 (12 April 2024; TanzLII) the court was faced with similar situation, in dealing with the situation, the court reasoned; ‘... we think, the mere fact that, the CMA, while granting leave to refile presumed that at the time of refiling it would have jurisdiction, would not justify the respondents' complaint that the refiled complaint was a continuation of the previous complaint which had been struck out. We have reasons for our thinking. 7 One, just as stated by Ms. Lupondo and indicated above, the parties in the initial complaint were different from the subsequent complaint. Second, the first complaint had a different number from the subsequent complaint; third, when the first complaint was struck out it ceased to exist, such that at the time of filling the second complaint there was nothing like the first complaint, save for the order striking it out.’ And then held that; ‘In the circumstances of this matter, we are unable to go along with the arguments by the counsel for the respondents. Indeed, having been struck out, complaint No. CMA/DSM/TEM/353/2016 went out of the system with everything; which is why, when it was reopened, the number changed to CMA/DSM/TEM/541/2016/36/2017. Not only that, the number of complainants was reduced from 14 to 7. The CMA Form No. 1 was initially signed by Rose Ongara, but the second one was signed by Grace Lobulu and the said Rose Ongara did not feature in that Form.’ Applying the above decision to the case at hand, it is clear that the withdrawal order had the effects of extinguishing the previous application and nothing remained in court from which time could be counted. That is why the new application was assigned new case number and some modification in the name of the respondent. Previous application number 8246 of 2024 against the Office of the Attorney General whereas the 8 present is against the Attorney General of the United Republic of Tanzania. The applicants’ counsel sought refuge under section 21 of the LLA. Without further ado, that provision has been subject of discussion in the case of Tanzania Cotton Marketing vs COGECOT Cotton Company S.A. [2004] TLR 132 and Salim Lakhani Others vs Ishfaque Shabir Yusufali, Civil Appeal No. 237 of 2019 [2022] TZCA 504 (11 August 2022; TanzLII). In Tanzania Cotton Marketing, the court held that; ‘In order for section 21 (1) to apply, and for time spent in prosecution of another proceeding to be excluded, it has to be shown, inter alia, that other proceeding was prosecuted in a court incompetent to entertain it. In this application, the applicants pleaded Misc. Civil Cause No. 8246 of 2024 in a bid to establish exemption of time, it has not been submitted and it cannot be said that the previous application was withdrawn by the applicants because the high court had no jurisdiction to entertain it to import the applicability of section 21 of the LLA. In that regard section 21 of the LLA is of no assistance to the applicants. From the discussion above, I agree with the state attorney that this application was filed beyond six months and thus it is time barred. Given the above and in line with the decision in the case of Registered 9 Trustees of Baraza Kuu la Waisalmu Tanzania (BAKWATA) vs Bodi ya Wadahamini Jumuiya ya Waislamu Kumwelulo Another, Civil Appeal No. 629 of 2022 [2024] TZCA 288 (2 May 2024; TanzLII) when the court stated; ‘Upon our consideration, we agree with the learned counsel for the parties that, whether rightly or wrongly, having found that the suit was time barred, the learned Judge would not have jurisdiction to deal with the issue of non-joinder of a party.’ With the above authority I desist from discussing the second limb of preliminary objection on defects of the affidavit of the applicants. As to the way forward after finding the matter is time barred Mr. Tibaijuka submitted that the application be dismissed under section 3 of the LLA. Mr. Kambole did not make any reply to this argument. On my part need not travel long distance as it is settled that time barred matter is incompetent and the court lacks jurisdiction to determine it. Dismissal order presupposes that the matter has been determined on merit. In Bank of Tanzania vs Zuhura H. Mbulu, Civil Appeal No. 207 of 2021 [2024] TZCA 545 (11 July 2024; TanzLII) the court stated; ‘.... It is settled principle that an incompetent matter cannot be dismissed. The logic behind is that if the matter is incompetent, then the court lacks jurisdiction to entertain it on merit ...’ 10 From the above law, although the application is time barred, I do not agree with the state attorney that is liable to be dismissed. At the end, I sustain the first objection that this application is time barred. I do hereby strike out without costs. V.M. NONGWA JUDGE 22/10/2024 Dated and Delivered at Mbeya this 22/10/2024 in presence of Mr. Michael Fyumagwa SA, Mr. Edson Mbogoro advocate for the applicants and in presence of 1st and 3rd Applicants. V.M. NONGWA JUDGE 11