moses masanja vs elizabeth julius chanzi 2004 tzhc 38 1 february 2004

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM CIVIL REVISION NO 145 OP 2000 MOSES MASANJ/w ....... ....... . .......... APPLICANT VERSUS ELIZABEIH JULIUS CHANZI ) ..... ............. RESPONDENTS VERONICA K. MAHIG;. ) * RULING MASSATI. J In Civil Case No 158 of 1998 at the Kisutu Resident Magistrate Court one Moses Masanja obtained an exparte judgment a&aj.n®a$ Elizabeth J Chanzi and Veronica T. Mahiga the Respondents in the current application. That exparte judgment was set* aside by Chipeta J, in a revisional Order which was delivered to the parties on 1 7 /5 /2 0 0 1. On 23/5/2003 the Administrator of: the Estate of Moses Massanja filed on application for l^ave to appeal to the Court ' °f Appeal out of time. He is represence d by Mr Herbert Nyange 9 learned counsel, who also took cut an affidavit in support of the application. The application is opposed by the Respondents 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 proceedings without joining the proper administratix of the estate of Moses Masanja. y. whereupon Mr Nyange applied and was granted leave to' file '* an ammended affidavit. On 22/7/2003. Mr Nyange, learned -counsel again filed an application for extension of time within which to join Miss Agnes Masanja, the administratix of the estate of Moses Masanja in^^e^proceedings. This l followed the withdrawal of the ‘. * . application on 22/7/2003, 'The last pleading in respect of this explication was to be ’ "' - m m e e ,py 1O/lOjAm30H%n> 1tylo/2C)Mia§ ^ U o a f c # ^ Ntoujd r^pt be^ heard as Mr Nyange learned Counsel informed the ,i' court that We had some pressing engagements in criminal session before Mwaikugile J.It was therefore agreed that this . ' application be argued by written submissions i:i the following ? order. o/ . .2. (i) Applicant:. -by 21/11/2003 by 10/12/2003 \ m ) R e joinder (if any) 19/12/2003. in ohiefhb u t ° M r 1 ^ i i g e Vha f1not file? resp<:cti::'1 submissions it to mean that M s ^ c t " ^ ^ ^ ^ ^ ’ WhiCh 1 takS Mr Nyange learned counsel for Applicant submitted that (upon) the demise o f Moses Maqpia +h~ - • +. . Tnhn ^ a s a ja the r e g i s t e r e d owner o f the ^ premises, William N z i l e Masanja was appointed by awe rimary Court in probate case no 27/97 to be the admistratox was 14 0Sa e 0 ^ Wij‘10h t±me the ^PPiicant "gnes Ndagala Masanja . The said John William (fella Masanja also expired. I t is not however indicated when did he die. He submitted 0 ^ Bosa t;r t h e .death J°hn William Nzile Masanja the vif, Moses Masanja Evelyn OUmpele Masanja the A p p l i c a n t s aother took over the administration of the estate of Moses M a s a d a on behalf of her minor Children. Mr Nyange however does — ^ court appointed Mrs & ,elyn « aS3n;)a to be J T ' ‘ ' 1 theref°re find and hold that Mrs Evelyn Masania was not appointed by any court of law as such . ^ i n i s t ^ I Mrs Z i Z t t a t A p p ii c a n t Agnes Ndagula Massan ja 'ap plied f o r l e t t e r l 0 ^ ^ 16/7^003atiHn 16/7/2U03. He th KaWe Prlmary therefore C°Urt submitted Wh° sine, that erant6d the the S- e « present ' PP-tication was filed on 21/7/200^ th ^ t ■ According to hiir f - /I?nfr8S^--Lcal;:Lcn was timeous t0 hlm time began to run/- th- *u <* the administrator and t h , t a e c o r d ^ ^ i ^ 16 c t T ^ of the 1st Schedule to the Law of Limitjtion lot w T the prescribed period is 90 days Tn th„ al+ ° 971 th® suomitted that the • alternative Mr Nyange and not to 3PPlieS t0 SUitS “ d question whether or not it w" ^ PreS0nt natter- On the administratix of the est-*- to th0^ t0 ^ CUrrent ' to the suit + ! proceedings as the title t o g e albeit f r f l ^ ^ l y 1 ^ ! ! P“ “ d ° VOT to °»® allesstJ^ i th" the and t h a t / ^ s ^ i i v r. ° Xla"' ^ >iroveci s t r i c t l y , out S n X r f W a S ,n0t a Party 3 — - - e n Dade represent the “ t te - t 8te to ,-x.oo ^nere a c c u s a t i o n s , • V= ♦.3 ♦. He therefore prayed that the application c 'nited On theother Hand Mr Mairs learned Counsel for the Respondent strenuously opposed the application; He described the P r Q o e s g ^ ^ j n ^ b ^ s e of Court process. He submitted that since the .. . :: ; of the estate of Moses Hasanja was placed in the hands of John William Nzila Masanja he should be to the estate as far as the suit premises are Concerned nowith standing his death. He therefore submitted that the . death of Mrs Evelyn Masanja was ofnoa consequence in law. upon the suit property as all the she carried in-Respect 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 longer part of the estate it was no f o o ^ t o j o i n of the estate in the proceedings. i-^r^,rv,?rs Mr Maisa subiaitted that thg appljLCation was time barred and no reason has been advanced for enlargement of time. By virtue of S 3 of th-., iJW of Limitation Act the application ought therefore to ** dismissed with costs. have ^ " e ' r i s S l v S d l f t ^ ^ UJ.clOUi’ VJL >* S ^ e i ainSL f p ; S e d •in6s Strat°r already ’ (li) for . an _ current one,id *• ' p r o c e e d i n g s ^ h e ^ t h e ^ L i t ^ r ^ T ? ^ ‘jnlsl:ratix in -the ■■ °Ut o£ the estate'?P fcrty has already passed (-, „hether toe COurt has durl3clicticn txtend ,ime? , °^inal Hoses Masan* e estate ofiam - ■-> - . e estate o± Moses -s Masanla Masanja • .4/a A *H*•» Lastly there is on record that the Applicant Agnes Ndagula Masanja was appointed to administer the estate of |l$^gs I *• ; J Masanja on 16/7/2003. This was m c i t h a n 6 years : • , the date c-f the deatii of Moses Masanja, She now wants this court to permit her to be substituted as a party in the present proceedings. The application is made under 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 Schedule to the law of limitation Act the prescribed period for an application to join a legal representative as a party is 90 days. However there is neither a suit nor an appeal in the present case. The applicant seeks to be Joined as a party in the present revision proceedings. In my view item 16 of party III to the. 1st Schedulle to the law ° A c t 1971 does not apply. Instead, in my view ..3 of limitation in such an rpylic -.tion is 60 days. The HcXij question is wnen cioes teme e-e'/jn to run^ Mr Mdira learned Counse_L c^ici net e o c e 0ic^X2y c :^^ess the Court on this issue out hr Nyange learned counsel seems to be of the view that time begins to run f r t h o date of obtaining letters of administration*-^11 V. MEHTA M. SHAH (1965) E.A. 321 the Easton Court of Appeal sitting m a n appeal 3 _ • , ...... i;!_ fron thc s u rence court of Kenya w as of the view that an application by logal representative of a sole plaintiff should be made within 6 months from the date of the death of the decessed. I think this is sound law and I adopt it. This means that time within which to apply for letters of administration began to run from the 11/3/97 when Moses Masanja expired. On the face of it therefore the Applicant who filed this application on 21/7/2003 is more than 6 months and is therefore cut of time. Can this court extend time within which to file the application. This is what Mr Nyange learned counsel has applied for under s 14 of the law of limitation Act 197,1. Mr Maira learned counsel simply reiterated that the application w as time barred and as such this court had no jurisdiction to entertain -J-- ...5 ••5 •• As I pointed out above, It is true that the application has been filed 6 years after the'death o f ’Moses Masanja instead of the 60 days which I held above, as the period of limitation, I have no doubt in my mind that under section 14 of the law of limitation Act and Section 93 of the Civil procedure Code 1966 this court has jurisdiction to enlarge time for the institution of an application or appeal given any reasonable or sufficient cause. However in OSMAN V TftS UNITED INDIA FIRE AND GENERAL INSURANCE COMPANY LTD (1968)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. "It was not open to thecourt to extend the period of limitation. But in that case the court was section 5 of the Indian law of limitation Act 1908 which reads. 5. Any appeal or application for review of judgment or for leav^ to appeal or any other application to which this section may oe made applicable by or under PT*iof “TrnPTiT .. ’■"■ « j ad^Ttted"0 " * for the tine beinS in force may be a after the period of limitation prescribed therefore when the appellant cr applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. This section is the equivalent of section 14(1) of the law of Limitation Act 1971 which governs the current situation. That section reads. 14(1) Nothiwithstanding the provisions of this Act the court may from any reasonable or other t limitation XS>r the institute .Limitation tpr 'aW ^™ p p l i c i t i o n instil^tian. for tne execution of a decree and an application for such extension may be made either before or ifter the expirty of the period of limitation such appeal or application * .6. term application is defined in - +-• as, „ “ ~eci ln section 2 of the Act .... .. application m 3d,- ±r . ^ ^ or cr m relation t ^ Which is nature. ^ ™ y ed^ of 8 civil A t a 6'lance it will tr r .\ ■ of the Tanzania Lav or L J o n i t a t l ^ c t * £ * * * * SeCti^ **1) ereas section 5 cf the Indian T i C + + 1S Wlde£s in scope Where as section 5 0f +he j ■*1*1 a ion ^ ct ^ / r e s t r i c t i v e * respect cf aPPlicationI Indian Act could only be invoked in enatrtiiient specifically aopli-- .. n any other ,r „ , r J , s e c t i o n 14(1) the Secti™ <” * Limitation Act applies t^ an ■ L ±anzan^-a law of nature. On the premises V am of I Z a p P l i C c t i o n o f a Civil case was decided cn a different T °p i n i °n tilat the O S M A N »S decision is dirertl ^ ccntext and therefore +: directly relevant to the f case, i therefore find arid Holi th V ® °f ^ P*^nt this court ha.g jurisdiction to -r t ^ ^ present C a s e i section 14(1) of the ^ n f T . ^ e*tensi.n of time under *» ~ «-y *°ath of ^ fathar M ^ es tlne of tte only 14. She reached the »»e " j7 “ * "PPUoant was Actions 15 and 16. of the Limitation^ct7thi^-°1 ’•& ^ the applicant is de--™e^ t- h i . - - p^ri^u in which be excluded. I t shI ^ als^b ^ Sal ■lisability s h o u l d 1998, tne estate was o e W ^ ^hst uP to MarcH Masanja., H o w e v e ^ t h . r e if ^ ^ Zr9d bX * chn Nzile" „ . . Cf age and J-V&y- ■ u + 'P when the Applicant “ <rL'--- 20,j3;when the AppTicrini. _v+ . ' . .ofradministration cf the estate- -ilfere w letters ,... , . ^ ^d ' ; “ s f ' - exPlaination f o r delay, except Mr N y a b g e ^ belief-'' 1 a a ^ t r ^ o f b^ ieVe+ tll3t Mrs Ja ^ _ ;.;s-cratix oi the estate uiitil Jun,e - ie d u ty o f th e A p p lic a n t fo r t e n s io n rf f r e r y <■&*<& b ¥ : /*■■«-■■ ■ o£ tim e t o J X- v,, i C i v i l - N c 6 O f 1 QQm fr, \ L . xxreported) **7/= 1.. ■■ • JLL. > 1 While the period between the death of Moses Masanja the : > . . Applicant's father in 1997 up tc 2001 when the Applicant obtained the age o f ‘majority is legally excusable the Applicant attempted to fill in the gap between 2001 and 2003 when she obtained the letters of administration by explaining through her counsel's belief that she honestly believed that her mother Mrs Evelyn Masanja was the administratix of the estate until her demise i n 2003. This may noli be a very convicing e because as counsel well knows administration of estete is -not a matter of inference* or presumption but is always proved by documentary evidence of appointment. However the power to extend time under section 14(1) of the law of limitation Act 1971 is a matter of judicial Cl discretion and no hard and fast rulas can be set in deciding all cases. Each case is /to ^be decided on its own peculiar j£«cts. In the present case, the deceased Moses Masanja had already obtained a decree in his favour when he met his demise in Mar®& 1997. rev'i&i^hal p*r<3c^edings were opened * •'fiOdOy sdni£ thre:e -yilars his -dedthV The administrator of ;hi-g^i^s-tat^'-died ii$ ?99&s '~'r£o ’realy ‘there ;:was: no of the estate eveiFto ingtfccuct Counsel for iv.. . "itp^ly 1for letters :rcf' §§& $aft be i-lli-'fa .in the •prooeedinigs 'r '^^ticulferiy C£5 Cgtt'gtf this Court ha'd' ordered that. ■ 'ibU ^ ''the case shall be remitted to the trial court i3T..r : , ■ • for determination cn the merits. : ,, ; ..V .'. p:;.e.r.+ >:- ■ Counsel'S : r, ' I am also satisfied that the c..^ id handling of this matter since taking over the brief on 29/1/2001 when he. appeared before Mutungi DR/HC loaves a lot to be desired. He does not appear to have advised his clients properly on the'procedure obtaining to the joining of legal personal rep’resentatitres" " in theprdceedings‘hence the delay in filing the present application. Generally,(§4rufi^i*sriegiigence or ■mistake has'' not.been accepted as an excuse for the delay under section f4(1) "of the law of limitation Act 1971, but it hos not been suggested that it is totally shut out.’from cons ^ Ia some cases it has been held to constitute" a . . 9ause '(See irSNSftAL M/iRgffffTH BRAY RAYMOND JAC£ -!ER/,Y ( 1 ^ : ' s . A " % 2 V ;': -.8/; 8.. On the totality cf the facts >r this cis- T ,m +• -■ that counsel's mistake is „ „ t S 0 sri3s,' " ' satisfied of this Court's Consideration ni n' , d<5,riV# Ms Cllent circumstances o~ tMs' “ * " * * * * °“ ** Party interests, the serious ' L * * ™ those proceedings were I n s t i t u t e ^ ^ ^ *** deceased had obtained a decree'and 3 y -!r ft h *" and the suit new pending at the trial c urt f 111 order, I am of the considered view thit t h - l ^ t S & S l & 0urt'3 represented in the p r o c e e d i n g „1 estate/be allowing this application]" ^ ^ ^ ^ P °SSlble * is +v,Q •iw . -Theappiioant application to be joined as a party in these proceedings, and she is so inin~r-i n ■ +- i_ 5 , cf - tone IS so joined. Costs shall follow ■ the event m the remaining proceedings. It is so ordered* S./,. MASSATI JUDGE 10/ 2/ 2004 ,. .••U • Ruling delivered in chambers i p ~£v> i •■- * _ il ' 1! lnvthe presence of Mr ftin.i - ! f, Y ^ 20(* Respondents, ^PPlioant- and Haira for the __ S. A. MASSATI JUDGE 10/2/2004,