mustafa seif ngane suing as administrator of the estate of late seif ngane vs dr elifuraha elimbizi saria 70 others 2023 tzhclandd 16884 15 september 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND REVIEW NO. 324 OF 2023 (Originating form Land Case No. 251/2022) MUSTAFA SEIF NGANE {Suing as the Administrator of the estate of the /ate Seif Ngane).................... APPLICANT VERSUS DR. ELIFURAHA ELIMBIZI SA RIA a Ist RESPONDENT FABIAN MKONO MAKATO 2ND RESPONDENT INNOCENT MUSHI 3rd RESPONDENT JUMANNE KABULA 4th RESPONDENT AMINA KIVENGA 5th RESPONDENT EDWIN ALEX MSHANGA 6th RESPONDENT PETER SUNDAY 7™ RESPONDENT ELIAS SYSDNEY SIPEMBA 8™ RESPONDENT ALLEN PONELA 9™ RESPONDENT EZEKIEL MWAKATWE 10th RESPONDENT ADAM BONIFACE 11™ RESPONDENT AGNES FELIX MATEMU 12th RESPONDENT RASHID ATHUMAN SENDORO 13th RESPONDENT BENITO CHUMINGA 14™ RESPONDENT EMY TASIAN ANANGISYE 15th RESPONDENT PENIEL OLE SELETI 16™ RESPONDENT JEROME JOSEPH 17™ RESPONDENT 1 MONALISA PETER NGOMA....... ............. 18™ RESPONDENT GEORGE ABIA............................................................................... 19™ RESPONDENT ELENEO KISOKA 20th respondent ABDALLAH MSHAWEJI BEDUI (Administrator of the Estate of the late Mshaweji Bedui)........................................................................................21STRESPONDENT ARCHARD BWANYUMA MJAMAA........................ 22NDRESPONDENT ANNA SEBASTIAN KYARUKUKA OOM O® OOM i!O0O MB SO® MOOO 0O WM 23RDRESPONDENT MRISHO KONDO S8SiH«KSi»lffl&IUSIt«Sf8aSilSi8aBS8®aa!aS14!fiaKia8!iiSWSiiaS8iaM:ii!»iffia:S!a»aKK®a®aaS8iaa8l«ffllSSa8SK 24th RESPONDENT EMMANUEL JOHN KISOKA 0®BiS®®®Sa®®8S3i8jSaB®J8S!SaSIB®ffi®SSg8®8iaBfaSK .25™ RESPONDENT IRENE JOHN KISOKA.................................................................. 26™ RESPONDENT JOHN LELO.................................................................................... 27™ RESPONDENT VEDASTO RICHARD 28™ RESPONDENT HASSAN MSAKA 29™ RESPONDENT DZENE JOSEPH SANGA 30™ RESPONDENT MOHAMED SALUM 31st RESPONDENT ABDALLHA YAHAYA 32nd RESPONDENT CHANDE SAID 33rd RESPONDENT HAMIS ALI 34™ RESPONDENT AIDAN SHAYO 35™ RESPONDENT UPENDO AMON NYAGAWA 36™ RESPONDENT EMMANUELYUSUFU 37™ RESPONDENT ASHA HAMIS 38™ RESPONDENT JUMA SALUM 39™ RESPONDENT KULUTHUM RASHID 40™ RESPONDENT REHEMA HUSSEIN 41st RESPONDENT ZENA OMARY 42nd RESPONDENT ARAFA JUMA 43rd RESPONDENT RWEGASIRA DISTRICH 44™ RESPONDENT 2 ABDALAH RAJAB 45th RESPONDENT IRENE MANGA 46th RESPONDENT SIAFE R. MFAN GA 47th RESPONDENT PASCAL DANIEL PANCRAS ,48th RESPONDENT DENNIS MMALI 49™ RESPONDENT MOHAMED A. MATOLA 50th RESPONDENT SUSAN PETER 51st RESPONDENT FRANCIS ANTHONY 52nd RESPONDENT HADIJA NAGUDULA 53rd RESPONDENT KHALFANI JUMA 54th RESPONDENT ANNA NGUNGURU 55th RESPONDENT ASHA OMARI 56th RESPONDENT REHEMA SHABANI 57th RESPONDENT ANGENI LUHWAGO 58th RESPONDENT ALBERT MACHA 59th RESPONDENT HEMES EXAVERY MASAKA 60th RESPONDENT SODDY VENANCE 61st RESPONDENT GODWIN MESHACK MSOSI 62nd RESPONDENT PETER NGOMA 63rd RESPONDENT EMMANUELYUSUFU 64th RESPONDENT NYIMILA MWAMBAJA 65th RESPONDENT HASSAN SALUM 66th RESPONDENT JABIR HAMIS FADHILI 67th RESPONDENT GRION EDGAR LUSHANGO 68th RESPONDENT INNOCENT MASAMA 69th RESPONDENT HONEST KESSY, 70th RESPONDENT ANNA NADE 71st RESPONDENT 3 AND THE UBUNGO MUNICIPAL COUNCIL................................ 1st NECESSARY PARTY THE HON. ATTORNEY GENERAL........................................ 2nd NECESSARY PARTY RULING l&h August, 2023 & 13h September, 2023 L, HEMED, J, On 28th March, 2023, the applicant's case, Land Case No. 251 of 2022 was struck out after having found that it was improper before this court. The applicant was aggrieved by the said decision, he initially lodged Land Review No. 241/2023 which he withdrew it on 25th May 2023 with leave to refile. On 26th May, 2023, he lodged this Land Review. The 1st and 2nd Necessary Parties raised a preliminary objection on a point of law that: " 1. The Application is hopelessly time barred as it has been filed beyond 30 days limit provided under Item 3 of Part III to the schedule of the Law of Limitation Act [Cap 89 R.E2019.]" The objection was argued by way of written submissions. The necessary parties presented their submissions on 25th August 2023 through Mr. Francis Wisdom, learned State Attorney. The Applicant presented his 4 submissions on 30th day of August, 2023, through Mr. Denice Tumaini, learned advocate. It was the submission of Mr. Wisdom that the time limit for review under the Civil Procedure Code is 30 days under part III, item 3 of the schedule to the Law of Limitation Act[CAP 89 R:E 2019] It was the view of the learned State Attorney that the order striking out the applicant's suit was on 28th March 2023 and 30 days to file the present Application lapsed on 27th April, 2023. He asserted that the matter at hand is thus out of time and thus deserving to be dismissed pursuant to section 3(1) of the Law of Limitation Act, (supra) In reply thereto, Mr. Tumaini learned advocate was of the view that the matter at hand is not time barred because it emanates from the order of this court in Land Review No. 241 of 2023 which was withdrawn with leave to refile. The learned advocate for the applicant was of the opinion that the matter is proper before the court. Having gone through the submissions made by the parties, the question for determination is whether the preliminary objection has merits. To begin, let me state that the application like the one at hand is governed 5 by section 78 and Order XLII Rule 1-9 of the Civil Procedure Code [Cap. 33 R.E 2019]. The said two provisions do not state the time limit within which an application for review can be preferred. It is trite law that when specific legislation is silent on the time limit then, the Law of Limitation Act, Cap 89 comes into play. The time limitation for review is provided under item 3 of part III of the schedule to the Law of Limitation Act, (supra) thus: - "For an application under the Civil Procedure Code for a review ofa decree, judgement or order. thirty dayd' From the provision quoted herein above, it is obvious that, the time limit within which to file applications for review like the one at hand is thirty(30) days. The question that arises is whether the instant application was filed beyond the time limit. Proceedings of Land Case No. 251 of 2022 shows that the applicant's suit was struck out on 28th March 2023 and the instant application was presented for filing on 26th May 2023, almost 60 days from the date of the order. The applicant's advocate has relied much in his argument on the order to withdraw with leave to refile Land Review No. 241/2023 dated 24th May, 2023. According to Mr. Tumaini, Advocate of the applicant, the leave to 6 refile the withdrawn Land Review No. 241/2023 was the leave to refile the instant application. The question is, was the leave to refile the withdrawn Land Review No. 241/2023 amount to waiver of time limit applicable to filing application for review? When one prays to withdraw an application, suit or appeal with leave to refile he only avoids from being precluded from instituting fresh matter as provided under Order XXIII Rule 1 (3) of the Civil Procedure Code (supra) thus: - " where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission..... shall be precluded form instituting any fresh suit in respect of such subject matter or such part of the claim." The above provisions which according to "Mulla on the Code of Civil Procedure Act of 1908" 15th Edition, Vol. Ill, 1997 at Page 2091 - 2092 and the case of CRDB - PLC and Leonard Mususa, Receiver Manager of Morogoro Canvass Mills (1998) Ltd vs Mohamed Aboud and Another, Commercial Cause No. 277 of 2015, applies as well to applications, only gives permission or liberty to a party withdrawing a case to refile it. 7 Permition to withdraw a matter with leave or liberty to refile the same does not waive the responsibility of a party to observe the time limitation for instituting a case. In the matter at hand, the order to withdraw Land Review No. 241 of 2023 with leave/liberty to refile was meant only to permit the applicant to refile fresh application in future in respect of the same subject matter. The order did not have the meaning of extending time within which to refile the application for review. It should be noted that the effect of withdrawing a matter means, before the court nothing remains. Therefore, the person who withdraws a matter should be mindful that the date of cause of action for purpose of determining time limitation does not shift to the date of withdrawing it with permition to refile. Once the matter is withdrawn with liberty to refile, the time limitation is computed from the date on which the cause of action arose. Likewise, in the application like the one at hand, a party who withdraws it with liberty/leave to refile must be aware that the time limit for refiling shall be computed from the date on which the impugned decision or order was delivered or made. In the instantaneous application the time limitation is therefore computed from 28th March 2023 when the applicant's suit was struck out. 8 This application was lodged on 26th May 2023, that is after 60 days from the date of impugned order. From the foregoing, it is obvious that the application is hopelessly time barred. Section 3(1) of the Law of Limitation Act [Cap 89 R.E 2019] provides thus: "3(1) subject to the provision of this Act, every Proceedings described in the first column of the schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed...." (Emphasis added) Based on the aforesaid provision, I have no option other than dismissing the entire application. In the upshot, the instant application for review is dismissed with costs for being instituted out of time. It is ordered DATED at DAR ES SALAAM this 15\September, 2023. .HEMED JUDGE