omary salum chitanda administrator of the estate of the late abdallah salum mapua vs rev dr william mathayo mntenga 2020 tzhclandd 3856 6 november 2020

IN THE HIGHCOURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) MISC. LAND APPLICATION NO 794 OF 2018 OMARY SALUM CHITANDA (As an Administrator of the Estate of the late ABDALLAH SALUM MAPUA APPLICANT VERSUS Rev. Dr. WILLIAM MATHAYO MNTENGA.... ...RESPONDENT R U LI N^ The applicant raised Preliminary poin ons inst the application as follows; 1. That the applicationif hopeiessly^^^^ tSlred 2. That the appii^iot^i^ bad^fe^^^iied under wrong provision of the law co^s^uentjy, Tffteqperi^^ovinq the court 3. That th^^^fetion ^^^i^^^or being not accompanied with the dejEisioD ^dfeffi^e^visgd 4.llhe Pfelifninll%^ ob^Sions were argued by way of written libmission^ In his subf^issigniln support of the preliminary objection, the applicant's counsel, Mr. Alex Mashamba Baiomi, submitted on a single point of objection that the application is time barred. He argued that the decision on which review is sought, was delivered on 20"^ April 2018 and the application for review was filed on day of November 2018. More than 30 days lapsed from the date of delivery of the decision subject of the review application, thus, the application is time barred. The learned advocate cited the provisions of section 3 of the Law of Limitations Act, [Act No. 89 R.E 2019] on consequences of proceedings instituted out of time. He submitted further that this application has been filed to delay the execution proceedings that have been dragging before this court for a number of years. He then prayed for dismissal of the applicatiot;with costs. In her reply submission, the counsel for th^applicamMS. GANJATUNI Shabani Kilemile, conceded to the objection However, she submitted that, this c^l^shOTj^^^^^^round by technicalities. She referred this cou^te^^^^sSr^section 4(2) of the Written Laws Miscellaneous am^m^^^cw|^»of¥018 which provide for the overriding princip^^he a%^d^^gier that, this court should ignore the technicalitiesin favouR\or%ibst^ve justice. She cited as authority the case ^DT^^bies^^nzahia) Limited and Phantom Transport(198B^Lim^d^^ct,.om'ppeal of Tanzania, Civil Application No. 141/200^^c^^t^^psition that the rules of procedure, should not beifflHaitQ blM'^^feltom enforcing his rights. I ha^\consider^kthd%ibmissions by both parties and court record. The applicah^oes not Itepute that his application was filed out of time and the record shov^H^^is application is time barred. What this court need to consider is whether the overriding objective principle as pleaded by the applicant's counsel can be employed to sen/e the applications at hand. It is true that by invention of the overriding principle, the courts need to have due regard to substantive justice than technicalities. However, before invoking the overriding objective principie, the court need to consider whether the irregularity sought to be overlooked can cause injustice to any of the parties to the case. The court need also to consider the impact of overlooking the irregularity in the administration of justice in general. The law is very clear that in case a party fails to file his application within the prescribed time, he can apply for extension of ti^e^to file the same. In the case at hand, the applicant for reasons best^known'^Jiimseif, did not make use of the remedy available for him. H^m^ihis appl^tjg^out of time. It should also be noted that the apilfeint hSeq^^Ee^^tion. I am of the considered view that oVHtdi ^nnot be employed to save applications filed out of sOne^lPljd.'The time limits set by law aims at ensuri^^naiity ons. Employing overriding objective to allow appiicalons e in circumstances as in this case, will cause ch^^jn a||iinistratiM of justice. It will also occasion failure of justif^^^he^^art ISf^^^respondent who believed that this matter has c^^^ir^Mo its finality, and filed his execution proc^ingsj^MTy te^d theip is a review application filed out of time and the co^decide^^ntfe^ain the same. To my urf^brgtandlhi, overriding objective principie has been incorporated into our iaw^B^mpower courts to do away with procedural irregularities that tend to deteriorate administrcition of justice. Application of the principie should not be preferred at the expense of either party to the proceedings. Applying the overriding principle in the matter at hand will be at the expense of the respondent and the celebrated principle of finality in litigations. For those reasons, the preliminary objection is hereby sustained and the application is dismissed with costs. o^- -X V,-: Z. D. MANG JUDGFk 06/ll,/202