masanja vs chanzi 2004 tzhc 3 10 february 2004

IN THE HIGH COURT OF TI,NZJiNli, (DAR ES SAL~j~ DISTRICT RSGISTHY) 1\T DI,R .83 S;.L.i~lJ'l CIVIL REVISION NO 145 OF 2000 MOSES MJ.Si.NJ A ~ •••••••••• , ••••••••• ,•• 0 ••••••••• L1?i LI C,;,NT J VERSUS ELIZABETH JULIUS CHi.NZI ) •••••..•••• ,"··C!..)ONDETJT$ " •••• 0 ••••• rtl!,~ J.\ VERONICA K. M1JiIG1~ ) In Civil Case No 158 of 1998 :1t the Kisutu Resident Magistrate Court one IVIosesIvlasanja obtained a11 c,x-parte judgment ~i!lM ~ Elizabeth J Chanzi and Veronica T. lVlahigathe Respondents . ' in the current application. That eX'JeTte juJgment was set aside by Chipeta J, in a revisional Order which was delivet:'ed to the parties on 17/5/2001. On 23/5/2003 the J\c'l.ministrCltor of the 3state of M?ses Massanja filed on applicetion for lcC:.ve to ~1.tJpealto the Coiwt of APpeal out of time. He is reprc:c::;(,l~'l~ed 'J} I1r Herbert Nyange, learned counsel, who also took cut all sffid8vi t in support of the application. The application is 0~JJ!OE),c':'l by the Respondenta through the services of Mr Maira learned Counsel who also filed on affidavit to oppose the application. Mr Maira alSO objected to the conduct of the proceedin,~s without joining the proper administratix of the estate ol Moses Masanja. Whereupon Mr Nyange applied and was granted leave to' file an ammended affidavit. On 22/7/2003. Mr Nysnge, learned ~ounsel again filed an application for extension of time withtri which to join Miss Agnes ~~~~e~~ MasanJa, the 8wninistratix ' of the estate of I'<losesMasanja in rthe ·)roccedings. Tpis ear ler~ , .f0;ll0wed the withdrawal of the ,:',~., ~ applicsticn on ~2/7/2003. , t" \, 'The last pleading in respect of this 2 )plic<:,-cion was to be "fil~ct,'~f ~~flnge.:~y 10/10,_3it\~t~n' ·'.Y)'iO}2~31.tnt"~Plida~l't:l~ '$ oul d ~:q9t bet heard as lVIrNyange learned Counsel informed )th~ ,1' . I court that h'e had some pressing eng::l,S ::iI1entsin crirdnal Se$a~OlS before Mwaikugile J.I t was therefore agroc:d th::;t this l' ap'plication be argued by \:ri tte:n submissic:ns il t1:'Lefollowing ',r~"",,<l' order. (i) Applicant~ ,by 21/11/2003 (ii)Respondent by 10/1~/2003 (iii)Rejoinder (if any) 19/12/2003. Both2 counsels have filed their respectibe submissions in chief but Mr N-Y,~~ has not filed a rejoin~er, which I take it to mean that he does not wish to file one. , .n. Mr Nyange lear~ed counsel for pplicant submitted that (upon) the demise of Moses Masaja th~ registered ovmer of the suit premises t J~-=: William Nzile Masanjav'lGs appointed by Kawe Primary Court in prooate case no 27/97 to be the admistrator of the estate by which time the Applicant Agnes Ndagala r1asanja was 14. The said John William Nzila Masanja also expired. ~t is not however indicated when did he die. ,He submitted that after the death of John William Nzile Nasanja the wife of Moses Masanja Evelyn Tumpele l\1asanjathe Jip.r,:;lical'1t mother 1:s took over the administration of the estate of l'loses tJIasanja on behalf of her minor Child.r€n. }VIrNyango hcv,ever does not mention which court appointed ]\'lrs Evelyn MCtsanja to be the ~trl.p~~~, I thorofare find:::md hold that flIrsEvelyn Masanja was not appointed by any court of law as such awninist~at~. Be that as it may, Mr Nyange went on tc) suomi t that Mrs Evelyn ;';I'8sa:rlje 2xpired in ~J'.U1.1?:1r. 20:)2. U:;'.:Jon her death the APplicant Agn'="sNclagula r/Iossanja8P.0li~.?d i'or letters of administration at Kawe Primary Court who granted the same on 16/7/2003. He therefore submitted that sine:::. the present application WaS filed on 21/7/2003 ~Rfr8~plic2tion was timeous According to him time began to run/~ the date of the appointment of the aillninistretorand th8taec9r~iqg ~o item 16 part iii of the 1st SchedUle to the Law of Limi taticn .Hct 1971 the prescribed period is 90 days. In the alternative Mr Nya?ge suomitted that the provision only applies to suits and appeals and not to applications as in the present matter. On the question whether or not it was proper to join the current· administretix of the estste to the proceedin~s as the title 81resiy passed cvc:r to one Vastity to the suit PlrccRH:fu1Ye=lB.} Burge albeit fraun:lulently~ Hr Nyah,ge sU~Jmi-t;tedth",t.the allegati~~{ fraud were serious tLat h22 tc prov',,,,d strictly. and thatt!astnly Burge was not a party a C2se h2s been wade out ~orthe joinder of an a&ninistratix of th_ ectete to represent the est''lte""g8inst there aCCus:.,ti:TS < On theother hand IVirMaira l'~8rne;J C,::.;u.ns2l fer the Respondent strenuously 0P90S'2Cl the applicc:ticn; He described the procesgd1Afnf~tF~~fi of Court process.. ;.-12 submitted that since the .-' : of the: estate of JYiosc~s lil8.s::mjawas placed in the hands of John William Nzila Masanja he shoull be amane,b1t4!e to the estate as far as the s;Uit 'j,Jrcmises are Concerned nowith standing his de9th. He therefore submitted that the death of Mrs Evelyn rvrasanja was Ofn<?,lcons~'-luence in law. transactlons upon the suit preperty as all the t:--:::':'_c~:,;) she carried in.'~spect of the suit property were of no effect. He further submitted that the title of Moses Masanja to the suit 'property was lawfully revoked and so it is no longer part of the estate of Moses Masanja. After the said revocation the Respondents were granted the right of oCcupancy. By extension according , to Mr Maira since the suit property is.no lODGer part of the aananlstratlx estate it was no f3~%h~~mg~~nthe ~,;, ~:.: .. ".:'- of the estate in the proceedings. 1'::'t:"·~.;;rv:?r€ Mr Naii'a subIYii tted th.'3t the application was time barred and no reaSon has been acLvenc20for enlargement of time. By virtue of S 3 of tIE.l,:;w of Limitation Act the application ought therefore to 08 disLlissed with costs. have ~~"~e t~~s~i~~dii~Qt~~~ ~~~~;'~~i,."::3 ".CtL:3 ." ur .issues (~) When does time begin to run against an 2.diJinistrator of ~e estate ,who wlshes to De joined in the proccedinzs alrea'd'y ~n Court? , ...., (ii) What. iS~he"pr2scrib:d period of ~i;r~\:,a~~i~~,nfor an appllcatlon to be joined in a proc>~ding such as the current cne, id est an applicaticn i,)1' r,;::,vision? {~~~ Whether, it is proper to join the adminisGratix in the prOCeedlngs where the suit property has already passed ~ands out of the estate? . . (iv) Whether the Court has jurisdicticn t,- ext'2nd time? died ~~e~~/~/s9~o ~oubht.that .the original p18~ntiff Hoses Masanja , , • y W lch tlme, he had alr2cc'Y obtained a decree aga~nst th2 Respondent,s, which was grantee' 1" +h" K;sutu RM'S Court on 18/5/94 _ ." '~J v '" ••• Nz'l v' ',. !he~e. l~ als~ ~o dispute th,::lt John William Mo~e: ~:~~~a ~as appOln~eQ a&nlnlstr~tor oi the estate of Mrs Evel ~ ~a In ~997 ~nd,th8~ thcrc,ls also no dispute that of!: ' li ,t ~ssan~a~ ht=rself aeceasec" was net apPointed ..:lCla Y/.J admlnlster the estate of Moscs M3sanja Lastly there is Gn recurcl that tie AiJplic:-mt Agnes Ndagula Masanja was appointed to administGr the e2,totE of ¥P8rffs : Masanja on 16/7/2003. This ideS mer:: then 6 years ~ .. the date of the death of Moses Masanja. She now wants this court to permit her to be substituted as 3 party in the present proceedings. The application is m~de uncer Order XXII rule 3(i) and Section 95 of the Civil Procedure Code and item 16 part iii of the 1st schedule to and section 14(1) of the law of limitation Act 1971. It is true that in terms of item 16 part 111 of the 1st Sohedu~e tu the law UI limitation Act the prescribed period for an application to join a 12gal re-presentative as a party is 90 days. However ther2 is neither a suit nor an appeal in the present case. The applicant seeks to be joined as 8 party in the present revision proceedings. In my view i tern 16 ':.::i pa.rty III to the 1st Scheclulle to the law o.tth~.~'iJ~¥i~n Act 1971 does not aprly. Inste.q:\, in my view ,,3 of limitation _oj _ in such an ic ,tiuD is 60 days. The next qU""s tien is ,,{hen cl()0;S t:,I:L .2:::,,::1. tc run? Mr Maira lc?rned Counsel:~icl DC-/::; cc:L~t.cz~l~,y :::-_'~:lress the Court cn this issue cut fill" Nyal1cSc ,L,;,:::cr; c;'j1.:nselseems to be of the vie\\f that timc:JccSins tc l~urlL' th.;;~L3te of obtaining letters of?dministrc1tic;n·Irl DL,;...j-'-':i;'LL.~L!: .11EHTA M. SHim {]965) E.A. 321 the E8stcn C(mrt,_::~ 881 sitting in an a'Pp:~al ::.;, ,', - ,::, ')_ '-"i frcF:~tb rence court of Kenya was of the view that 3n applicnti2n by I 01 r2~resentative of a solE::plaintiff should te m,3clewlth_'_Yl 6 months from the date of the c1e3th cf the decf2ssed. I think this is sound law and I adopt it. This means th2t time within,vhich to 2pply for letters of aclministr'l,ticmbegan tu run f:~,jJn the 11/3/97 when Moses Masanj8 expired. On the f',ce )1.' it therefore the APplicant who filed this a~plication cn 21/7/2003 is more than 6 months and is therefore Cllt c'f time. Can this court extend time within which to file the application. This is what Mr Nyango learned counsel has applied for under S 14 of the law of limitation Act 1971. Mr Naira learned counsel simply reiterated that the application ViaS time barred and as such this court had no ju:ciscliction to ~cntert'1in ~..I-. As I pointed out above, It is true thut the application has been filed 6 years after the death of' Noses l'1asanja instead of the 60 days which I held above, 8S the period of limitation. I have no doubt in my mind that unc.er section 14 of the law of limitation Act and Section 93 of the Civil procedure Code 1966 this court has jurisdiction to en12rg2 time for the institution of an application or ?ppeal given any reasonable or sufficient cause. However in OSMAN V TH2UNITED INDIA FIRE lJ.~D GENlSRALINSURtiNCE COlvll?J~NY LTD (196S)E.A. 102 the ~astern African Court of Appeal in a case from Tanganyika interpreting sections 3 and 5 of the Indian Limitation Act 1908 and Order 22 rule 4 of the Civil procedure Code held. aIt was not open to thecourt to extend the per-iod of limitation. i:pt~rprettp.g But in that case the court ';ias _.--:. .'- - sectien 5 of the Indian law cf limitation j~et 1908 ','!hich reads. 5: Any appeal or applic,="ticn for r2vicw of judgment or for leav~ to appeal or any other application to which this section may be mede e;:plic'Jble by or under enact'llent .- :- ---=,'~'-"',- any"'" ,~.... ' - for t1 .i...LC'tl···· _~ •••.•• \.,..1 l .•n:..:: -,_ '.,~. \,;,#·1···· l'!:1fo .1. b c.....<-l':~...'1 "ce In1 a y be -. r ., adini.tted ,":,., .1:1.'":.:: '3I ~ter th_e perlc'~ '1 en~ l' lJ11l"tn .. l-lOn prescribed .J..' therefore when the aPPl::llont sr 8Ih;licant satisfies the court thqt he had suf;ficient cause 1'01' not preferring the appe21 or making the .?pplic;·;tLn within such period. This section is the eqUivalent cf section 14(1) of the law of Limitation Act 1971 which;cvc;rns the current situation. That section reads. 14(1) Nothiwithstanding the ~rcvisions of this Act the court may :£.'rcm8ny reasonab:}.e or 'JiN:ficient OBuse Gyt\JnJ ·.C.h\JJ:,Je.r;i.cd 9f -"' J.~. ~"Cu't~onS?I appeal G:'~ ,'n .3\J.JJ..lc8tlon other ' .LlmJ. tatlcn :IJ)T the lns ~Cl tu tIl.on. :ll2../application for the execution of 2. ;~~ecreeand an applicaticn for &lch 2xtensicn may be made either before or ':ft2r the: ez.-pirty of the p~rJ.o 0 f I'lJ11l . d °t··(';'CL;n ")·J.·"';H:!.cVli1·e~ .t.J·-ror ~'" ~'-.' -'-.•.. such appeal or aPI)lic,.,ticn ~ The term 'application is defined in section 2 of the Act as. " ••••• an applic?,tL,n In,3d,:.; tc :c: court which is of or in relation to any )roc 2diog of 8 civil nsture. A t a glance it will tnerefore 02 lk t2C~ that sectivn 14( 1) of the Tanzania Law of Limitation Act 1971 is widersin.scope whereas section 5 of the Indian Limitation Act 15/EGstrictive, Where as sectiloo 5 of the Indian Act coul~ only be invoked in app ~ca t ~ons , respect cf ~.,-~t "_.~specifically,-mpliscl by the section or enat "men "- any other x :..~:-,1, section 14(1) Of Uw Tanzania law of Limitation Act applies te all or gny applic~tion of a Civil nature. On the premises I am of the opinion that the .•....... OSft'\N . tS . Case Was decided en a different ccntext and therefore the decision is not directly relevant to the facts of the present case. I therefore find and'helj th)t in the present case, this court ha~ Jurisuiction to grant extension of time under section 14(1) of the of 'limitation Act. 1~~ Is there .8r}Y, sufficient 'c. or reascJ:Y1ableC:::U,S2 fqr the delay by the Applicant in filing the ap;;licat;iu:n fee su.bsti tution? I t has . been a,lleged~ uy the Hcs-oonclentthat .•. '. ..." death of her father Moses MasanjC';,)n 1-1/3/ 37 "~?plic8nt was only 14. She reaqhed the c:JgG of W3.j cri ty ~LD 1. In teFU\$ af Se-ct}ons 15 and 16 of the: Limicati0Yl ]\ct. tt~L: _"Ti,~,j in which tt!-~.Applicant is Je,~medtc have cecD un:l,,,,r 1 81 iisabillty; ,.", be ~xcluded. - -' . It shc:,ulc'talsc be berne in mind thst up to Haren should . . .•... ',- , . 199~, the estateWos being 2,.tllinistred by J0lJ.n ;Villiam Nzile' M.asanja., Howeve¥th""re is 8 g,3? petween 2U~11 when theA1?plicant ~cf age and J,¥J=-Y-, 2003 'when' the Appliccmt cbt::lined letters ~f:,~dJ;ni~is:tration of the est9te- t~~:..e 1s'.L,:po eX1Jlaination ;,for .•.. -..' ., - th.+,s ,delay, ,,-'" .~ L '.. j'}'7'. , _ ~,' "'~ ief ','. "_~_,:':0 ;:l,- "::\':;i,:m' t, c~:~; ..... - ,t:or·t{1istielaY., except !VIrNyabgeI s belief JChoti1 It 1 had' ret-lsonto 'h:lieve 'that Mrs Nc:rs'onja '~/8:Ei ;the '~dnliri.'istr:3,tJ..xOf \ .'.~.. .' ~ ' the estjt~ until June 2003 .:n:, -~:-;\, ~""l"', ?rt is the ctuty of the Applicant for ext~nsion of time to ac-count for every' d~Y"b-f r~e,1.~Y(see'AI.;1J*~NI!;lI'~.;L:a ':,1'" 11'D v' ADJ;L AJ8ir~h,/.iff Dh1:YEB! 1bi'J:t-]}~Nbr"60f199DTB'i» (UnruJ.Jortect) -, b 1.....,'-',,' LI: '6.'.') 'ilk r .. '.,'d_. '~~'J, f1;," 4/ , '•. ~ While the '.\:)eriod bet\"12Gnthe death of HCS2S Ivlasanja the 'I'> Applicant's fpther in 1997 U) t,: 2001 when t1:'2 t::::)licant obtained the age of 'majori ty is leGally 2xcu3ebls' the Applicant attempted to fill in the ge.:;,:' :Jetween 200'1 an:l 2C)U3 when she obtained the letters of administr;:,tien by c=-.?laining through her counsel's belief that she honestly believE>l that her mother Mrs Evelyn Masanja was the administrutix of the estate until her demi~e in Jwl,~ 2003.' This may no't be a very convicing e ~~~~q!~?Pbecause as counsel well knows s~ninistration of estete is ,net a matter of iifference, or presumption but is always proved by documentary evidence of appoinnnent. However the power to extend time under section 14(1) of the law of I1mi tation /.1ct1971 is a matter cf jUdicial ~:: discretion and no hard and fast rulas can ~Je set in (;,eciding all Cases. Each case is te be decided .: :t '"- on its own peculIar tacts. In the present case, the deceased Mcses Masanja had already obtained a decree in his favour when he met his demise in Marcn.1997. 'me'se 'revLsilorial ~r'oo~dingswere0p ened;li'i' ' ,'20dd·fsome threeY~ars (~tte'r' ffis:a'~i1thl The adminfstrgtor of in t.i;E.s~~t:atehd±ed 1998f :.iSo:,:realy,the're ''tlaS: nc f:=~E,(?~l~1:!i~~ 6.t(1tieestatei1Yed:i"td,:~~uc-t:c6uti.:sel for )'<..... _,-': ,.'.ir 1JU,t:lJ••. 'aSiR~Ji~£~~':t~~ :ltp~c:&1t'.§Lf6r'c\~dto :apf)ly :fur lette'f's·:cf. i·~a~Uli;.f+.,.~·l\<lsol.tn~t tiftie; g§p, ~anbe }Hl~~'irl the: pr,ooeeding-S " f~ar:t'lMari1 ~.~fj ,=;a:et~r t.fi·is-C6urt:ha-d ~6rde:rF8d~that,;. ~, .,'L ."~~,qa£i,~ s~~~l.~e r~UfiFteq.tq.t48, tr~g.1 court ,'~: f,ordetermi:nation .:'~ : '. '.. , ',' -~ . \" ", '.,,' onthemeri 1 ts. ,'. -,_,.",.'. ~ . '. A' I aci\als6 sat'r§fi~'c1. that 'th~:eg~S,"e~~~hanjlirig of this mett~rsi~ce taking over the brief 0n 29/1/2001 when 1+2 appea:red be:foreM~~giDR/HC le:::,ves a lot to be' 'creiire:~l. He (loes not' ~~e~~:T~o ..h<ive'advfse'd I11s clientsprol?e~iy en th~ 'preced~re '(5t>'i:airiirig to the joining of lege.l' 'personal 'rep'resentati'Ves '·~iJ.tri~p~dceedibg i 'hendethedelaY:in'f~lingt~e pre~e!i t:' ~p'piicatic}n. GenefaliY~%un";l~sriegligeriCe or 'mist~ke ha"5 ~ .... 'riot been '~ccepted ~s 1.,:" 1'<~~':""':.,:;, ", ,_~. 'In ~,:. r'.',',-'-,;:,' e~cuse :'for the del::;" under ~ectiD:ri14( 1) ':~:. ,,' ':' ": .,~.:.<.~,');_/ ',' """,':":'::.>,_' '..1, j:,..~ .,?f the :taw of lim! tation lictJ 971, ,but it hJS not been ." , S~g~~~:te:(~t~a't '1ti~:~:-s?lalr'y "Shut'qut:,""frcm consi~~*aA\9R',:R¥i:, the,~ouri;s:. In, some Cas,es it has been held to constitute~'8 ':luHipieJt'lau'~:~;(SeeiV-£J~ONjL N~'di.anB;TdBrC.y RAYI~OND ~~', ~,ti.aB.lfy'{,.195'7J'\E .A';)~02:''''~ ,.' .',"." ".-:': " ,. - •., ¥;",', ,'}C';7t "'< ", 6-t :-,": . '-~;" "..'< ,. , .8/,,", On the totality cf the facts )f thlS Case I am satisfied ~T,SS that counsel's iuistake is net so 0 .' .~ ,"s to c.leprive his client of this Court's Consideration. AllC)nsil~reJ therefore, on the p~JJJ?r.'.s circumstances o:~this csse' the exist;.:mce of third party interests, the serious alleg2tioDs of fraud, the fact that those pr'oceedings were insti tutecl merf; than 6 years after the deceas2lL had obtained a decree' and 3 fears after his demise, and the sui t now pending at the trial ccurt following ~1\~fuaourt's' " order, I am of the considered view that the estate/be representej in the proceedings and this is only possible by '. - allowing this application. In -ell:::; result this .,lic:-.ti ..r i5 :lllowed. The applicant is granted leave to file an application to be joined as a party in these proceedulgs, and she is so joined. Costs shall follow the event in the remaining proceedin~s. ; . :;?~:,:,~---, -- ...__---c- So1 j • MJ~SSf,Tf. 'Rulillg delivered in cham:Jersthis '1 Uih d3Y of F?pru~y 2004 irithe'presence of lVlrR1Dgi2-fcrtheAP.l!lic(~nt anclMaira for the Resp6ndents~ JUOOE 10/2/2001+,