MUSA SELEMANI IDD

IN THE HIGH COURT OF UNITED REPUBLIC OF

TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISCELLANEOUS LAND APPLICATION NO. 7382 OF 2024 (Originating from Land Case No. 19/2023 of the High Court of Tanzania at Dodoma) MUSA SELEMANIIDD....................................... APPLICANT

VERSUS 1. NTONGE VILLAGE COUNCIL....................

2. SINGIDA DISTRICT COUNCIL................. [RESPONDENTS

RULING Date of Last Order: 13/8/2024 Date of Ruling: 20/9/2024 MASABO J.:- This is a ruling in respect of a preliminary objection on points of law. The applicant herein was the plaintiff in Land Case No. 1 of 2022 which was dismissed by this court for want of prosecution. MUSA SELEMANI IDD has moved the court to restore his suit but his application was met with resistance. The respondents filed a notice of preliminary objections. The first preliminary objection was to the effect that this court has no jurisdiction to entertain the application as it is time barred. The second was the court has not been properly moved. Page 1 of 6 The hearing of the preliminary objection proceeded in writing. The respondents were represented by Ms. Leia Salum State Attorney whereas the applicant appeared in person. The submissions were drawn and filed as scheduled by this court on 9th July 2024 by Ms. Leia Salum and the applicant respectively. In support of his preliminary points, Ms. Salum submitted that the application is time barred and should be dismissed. She amplified that the application was filed in this court on 5th April 2024. It is beseeching this court to set aside a decision pronounced on 19th February 2024. But, according to Item 4 of Part III of the Schedule to the Law of Limitations Act, Cap 89 R.E 2019, an application to set aside a dismissal order must be filed within 30

days which is its time limitation. Thus, the present application ought to have been filed on or before 20th March 2024. By filing it on 5th April 2024, the applicant was out of time. It was argued further that, the remedy for an application filed out of time is dismissal as per section 3 (1) of the Law of Limitation Act. In fortification of the submission Ms. Salum cited the cases of Festo Gabriel Dindili vs Regency Medical Centre Revision Application No. 398 of 2022[2023] TZHCLD 5 TanzLII, Mustafa Seif Ngane (Suing as the Administrator of the Estate of the LATE Sif Ngane vs Dr. Elifuraha Elimbizi Saria and 70 Others Land Review No. 324 of 2023 [2023] TZHCLandD 16884 TanzLII. On the second limb of the preliminary objection, it was submitted that this court has not been properly moved thus it lacks jurisdiction. The application Page 2 of 6 has been made under section 89(1) of the Civil Procedure Code. Since the suit was dismissed for want of prosecution, the proper provision of the law was Order IX Rule 6 of the Civil Procedure Code. It was submitted further that the citation of a wrong provision of the law renders the application incompetent. In fortification of the submission, she cited the cases of Amin Nathaniel Mcharo vs Tanzania Electric Supply Limited Miscellaneous Civil Application No. 196 of 2019 [2022] TZHC14905 TanzLII and she prayed that the application be

dismissed. In reply, the applicant conceded that he had filed his application out of time. However, he argued that he was blameless for filing the application out of time because he was told that the application was to be filed in the electronic case management system. When he was ready to file it, he was informed that there was an internet' problem thus, he should go back to Singida and wait for a phone call from a registry officer (name undisclosed) who promised to send him a control number. He waited until 27th March 2024 when he received the control number. Based on this explanation, he prayed that he be allowed to file a fresh application. The applicant did not respond to the second limb of the preliminary objection. That was the end of the submission, the respondent did not file the rejoinder. Having considered the submission by the parties, I will now move on to determine the preliminary points. There are two issues to be determined. First, whether the suit is time barred and second, whether the court had been properly moved. Since the applicant has conceded to the first issue, I Page 3 of 6 will only deal with it to the exclusion of the second issue as it suffices to dispose of the application. As both parties agree, the time limitation for the institution of an application to set aside a dismissal order is provided for under item 4 Part III of the Schedule to the Law

of Limitation Act. Under this provision, such applications need to be instituted within 30 days. In the present case, the dismissal order sought to be set aside was pronounced on 19th February 2024. Therefore, the time limitation of 30 days reckoned from this date lapsed on 20th March 2020. By then, the present application had not been filed. As per the electronic case management system (eCMS), the present application was filed on 5th April 2024. Thus, it was late by 15 days and hence, barred. Having found the application to have been filed out of time, the question that should follow is what should happen to the time barred application. It has been held in numerous cases by this court and the Court of Appeal that once the matter is out of time, the court ceases to have jurisdiction (see the case of Barclays Bank Tanzania Limited vs Phylisiah Hussein Mcheni Civil Appeal No. 19 of 2016 [2021] TZCA 202 TanzLII, Swila Secondary School vs Japhet Petro Civil Appeal No. 362 of 2019 [2021] TZCA 169 TanzLII, Ali Shabani &Others vs Tanzania National Roads Agancy &Another Civil Appeal No. 261 of 2020 [2021] TZCA 243 TanzLII and the case of Sarbjit Singh BHarya & Another vs NIC Bank Tanzania Ltd &Another Civil Appeal No. 94 of 2017 [2021] TZCA 212 TanzLII. In the latter case the Court of Appeal held that:- Page 4 of 6 The Court has pronounced itself in numerous cases involving time bar.

For instance in the case of Hezron M. Nyachiya vs Tanzania Union of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001(unreported), the Court emphasized that under section 3(1) of the Law of Limitation Act, the consequences for any proceedings instituted out of time without leave of the court is dismissal whether or not limitation has been set up as a defense. Likewise in the case of Swila Secondary School (supra) the Court of Appeal held that:- The law is settled that the issue of jurisdiction for any court is basic as it goes to the very root of the authority of the court or tribunal to adjudicate upon cases or disputes. Courts or tribunals are enjoyed not to entertain any matter which is time barred and in any event they did so, the court unsparingly declared the proceedings and consequential orders a nullity. The parties are at loggerheads. Ms. Salum has argued that the suit be dismissed whereas the applicant has beseeched this court to allow him to file a fresh application. From the above authorities, I subscribe to the argument by Ms. Leia that this application is to be dismissed. As stated earlier on, this point suffices to dispose of the appeal. Thus, the second preliminary objection will not be determined. In the foregoing, the application cannot be sustained because, as per section 3(1) of the Law of Limitation Act and the authorities above, the sole remedy Page 5 of 6 for a matter filed out of time is dismissal. Accordingly, I dismiss the application with costs. DATED and DELIVERED at Dodoma this 20th day of September 2024 Page 6 of 6