nuru idrisa waziri administratrix estate late asha abdallah kanda vs efc tanzania ltd and another 2021 tzhclandd 221 10 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 578 OF 2020 (Arising from the Order of this court in Misc. Land Application No.257 of 2017 and Land Case No.105 of 2017) NURU IDRISA WAZIRI (As Administratrix o f the Estate o f the Late Asha Abdailah K a n d a ) .......................... APPLICANT VERSUS EFC TANZANIA LIMITED....... .......................1st RESPONDENT TANZANIA QUALITY AUCTION MART LIMITED................. .......................... 2nd RESPONDENT Date of Last Order: 13.04.2021 Date o f Ruling: 10.05.2021 RULING V.L. MAKANI. J The applicant NURU IDRISA WAZIRI is applying for extension of time to be joined as a Legal Representative of the deceased applicant in Misc. Land application No.257 of 2017 and as the Plaintiff in Land Case No.105 of 2017, The application is made under section 14(1) of the Law of Limitation Act, Cap 89 R.E 2019 (the Limitation Act) and section 95 of the Civil Procedure Code, R.E 2019 (the CPC). The application is supported by the affidavit of the applicant. Mr. Ahamed Hassan, the Principal Officer of the 1st Respondent swore and filed a counter affidavit in opposition of the application. The 2nd Respondent did not file her counter affidavit. With leave of the court the application was argued by way of written submissions. The applicant personally drew and filed her submissions. Mr. Cleophace James, Advocate drew and filed submissions on behalf of the 1st respondent. The 2nd respondent did not file her submission and therefore the matter proceeded ex-parte against her. The applicant gave a brief background of the matter in which she said that sometimes in 25/03/2017 the deceased Asha Abdallah filed Misc. Land Application No.257 of 2017 and Land Case No. 105 of 2017 against the 1st and 2nd respondents. She said the late Asha Abdallah passed away on 12/11/2017 while the said proceedings were still subsisting in court. According to the applicant on 15/12/2017 the appointed administrators of the deceased's estate, her uncle Hamza Abdallah Kanda and her aunty Lucy Sabas Tesha neglected to perform their role as administrator and administratix respectively because they were afraid of Nizar Gulamali Kassam who bought the deceased house located oh Plot No. 25 Block 77 Somali Street Kariakoo, Dar es Salaa 2 (the suit house) in a public auction. She said she decided to apply for Letters of Administration which were granted on 02/07/2018. She added that Misc. Land Application No.257 of 2017 and Land Case No.105 of 2017 were both declared to have abated on 26/11/2018 (Hon. Kirefu, J. as she then was) as the applicant was not yet joined as Legal Representative of the deceased. On the merit of the application, she said that the respondents are abusing court process because the sale of the deceased landed property was tainted'with illegalities. She said that the property was sold at TZS 25,000,000/= which was below the market value of TZS 94,000,000/= as per the Valuation Report (Annexure A). She said that the law requires the court to grant extension of time where there is an illegality in the decision intended to be challenged in court. She relied on the case of Principal Secretary, Ministry of Defence and National Service vs. Dauram Valambia (1992) TLR 185. She prayed for the grant of this application. in reply, Mr. Cleophace James said that the point of illegality is not relevant in the present application as there is nothing averred in the applicant's affidavit on the issue of illegality. He said the issue of 3 illegality is a mere afterthought and he relied on the case of Fatuma Mohamed vs. CHausiku Salema, Misc. Land Application No.71 of 2019 (HC-Mwanza) (unreported). He said the applicant has failed to account for each and every day of the delay from 12/11/2017 after the death of the late Asha Abdallah to the date when she preferred the present application whereas she was required to account for everyday of her delay. He cited the case of Wambele Mtumwa Shahame vs. Mohamed Hamis, Civil reference No.08 of 2016 (CAT) (unreported). He prayed for this application to be dismissed with costs. The applicant did not file any rejoinder submissions. The main reason adduced by the applicant for delay in filing an application to be joined as a Legal Representative is contained in paragraph 3 and 7 of her affidavit. In paragraph 3 the applicant alleges that the suit house was sold below the market value of TZS 25,000,000/= instead of TZS 94,000,000/=. in paragraph 7 the applicant alleges that the appointed administrators declined to file any application in court on account of fear of the purchaser of the suit house. I would wish to observe that Mr. Cleophace James' allegation 4 that the issue of illegality was not pleaded in the applicant's affidavit is misconceived because the issue of the purchase price is an alleged illegality of sale. The court shall therefore consider two things namely, whether the alleged illegality exists and whether the decline of the previous administrators to proceed with their roles constitute good cause for grant extension of time for the applicant to be joined as a Legal Representative. On the illegality alleged, it should be noted that there is no decision by a competent court which is being complained of by the applicant, rather the applicant is complaining on the auctioning of the landed property that it was sold below the market value. In such a situation such alleged illegality cannot be taken to be sufficient reason for extension of time as it does not originate from any decision of a competent court of which the applicant is intending to seek the remedy against. Generally, where there is no decision on the auctioning Of a landed property the court becomes uncertain as to whether the landed property was indeed sold below the market value. A mere Valuation Report cannot be considered to manifest illegality on the’face of the record. 5 On the other hand, Misc. Land application No.257 of 2017 and Land Case No.105 of 2017 were instituted in 25/03/2017, the late Asha Abdallah Kanda passed away on 12/11/2017. The application and the suit abated on 26/11/2018 because no Legal Representative was yet to be appointed to be joined as a party. On the other hand, the Exchequer Receipt No.24844771 reveal that this application was filed on 10/10/2020, more than two years from when the Late Asha Abdallah passed away. The applicant in paragraph 10 of her affidavit is alleging to have been prosecuting Misc. Land Application No.05 of 2019 from 02/01/2019 to 02/10/2019 when the same was struck out. However, she does not account for the delayed days from 12/11/2017 when the iate Asha Abdallah passed away to 02/01/2019 when she instituted Misc. Application No 05 of 2019. Even if I consider paragraph 7 of her affidavit, that the previous administrators declined their role on 19/05/2018, still the same is not sufficient reason, simply because it took the applicant more than 7 months to 02/01/2019 when she filed her first application (Misc. Application No.05 of 2019) and more than a year when she filed the present application whereas the former administrators are alleged to have declined their roles on 19/05/2018. Further, when this court declared the matter to have abated on 26/11/2018 the applicant was already appointed as an 6 Administratix on 02/07/2018 by Ilala Primary Court but this was not revealed to the court by the applicant who was present on the said date. Instead, the applicant went on to tel! the court that no administrator has been appointed and prayed to sort out the matter (see Order of the Court in Misc. Land Application No. 257 of 2017 - Annexure C to the affidavit). Failure by the applicant to disclose the fact to the court that she was already appointed an administratix of the estate of her mother Asha Abdallah Kanda means there was reservation on the part of the applicant which creates doubt on the part of the claims by the applicant herein. In addition, there is no proof by the applicant that her uncle and aunty were appointed administrator and administratix of the estate of the late Asha Abdallah Kanda and that indeed on 19/05/2018 they withdrew from their said roles. What was expected was for the applicant to have annexed the Letters of Administration appointing her uncle and aunty as administrators or otherwise the minutes of the meeting of the family appointing them as administrators. In the absence of such proof the court cannot state with certainty that indeed the uncle and aunty were appointed administrators and their 7 withdrawal from administering the estate is sufficient cause for for extension of time for the applicant to be joined as a party to the suit. Item 16, Part 3 to the schedule to the Limitation Act is very clear that one can apply to be joined as a Legal Representative of a deceased person within 90 days. But as elucidated above, the delay by the applicant has not been substantiated in any way to warrant this court to exercise its discretionary power to grant extension of time for the applicant to be joined as a party to the suit. For the reasons I have endeavoured to address, I proceed to dismiss this application with costs. 8