20160414 TZHC Dar es Salaam

\ --- ........ ' ,,,,, IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 297 OF 2015 PETRO ANDREA (Administrator of the estate of the late Andrea Mafumba) •••••••...••••...•.•••••••.•••.••••••.. ••• APPLICANT VERSUS MWINSHEHE ABDALLAH .......................................... RESPONDENT RULING MKASIMONGWA, J. By way of Chamber Summons PETRO ANDREA (Administrator of the estate of the late ANDREA MAFUMBA) (Applicant) applies for an order extending time in which to apply for review of the decision of this court made in Misc. Civil Application No. 58 of 2008 dated the 15th July, 2011. The Chamber Summons is filed under Section 14 (1) of the Law of Limitation Act (Cap. 83 R.E 2002) and is supported by the affidavit of the applicant. The Responded one MWINSHEHE ABDALLAH filed a counter affidavit objecting to the application. She also filed a Notice of Preliminary · Objection raising five points of objection which are:- 1. That the Applicant has no locus stand to bring this application. 2. That Chamber Application is bad in law for being accompanied by a defective affidavit which contains arguments, narrations and legal conclusions. 1 3. That the Honourable Court has no jurisdiction to entertain this application. 4. That the application is futile venture as there is no "ORDER" or "DECREE" which is subject to review and that the application for extension of time to appeal to the Court of Appeal against the decision of Temeke District Court dated 27/03/2006 has already been dismissed on 23/12/2008. 5. That the application for extension of time is an abuse of court process. 6. That this application is an abuse of court process. The court ordered that the Preliminary Objection be disposed of by way of written submission and the parties did accordingly file the submission. As to the defectiveness of the affidavit the respondent referred the court to paragraphs 4 and 10 of the affidavit of ANDREA PETRO and submitted that the averment that the application whose decision was delivered by Hon Juma,J was supposed to be struck out instead of being dismissed is not a matter of which is within the knowledge of the applicant or deponent. It is a legal conclusion to be decided by the court. The Applicant however verifies in the affidavit to the effect that, all what is stated therein are true to the best of his knowledge. This offends the provisions of order XIX Rule 3 (1) of the Civil Procedure Code and the decision in UGANDA V /S COMMISSIONER OF PRISONS EX-PARTE MOTOVU (1966) E. A 514 which is followed by this court in a number of cases including M/S RUBYA SAW MILL TIMBER V/S CONSOLIDATED 2 HOLDING CORPORATION, COMMERCIAL CASE NO. 297 OF 2002, (Commercial Division) and TEMA ENTERPRISES LIMITED V /S EMAR PROVISION STORE, COMMERICIAL CASE NO. 136 OF 2014 (Commercial Division). In respect of the 4th ground of objection the respondent referred the court to Order XLII of the Civil Procedure Code. She submitted that the law provides for circumstances that warrant for review. What may be reviewed is the judgment of the court. She added that according to the law a judgment of the court can ben reviewed only from the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or on account of some mistake or error apparent on the face of the record. In the intended review there is no judgment, order or decree which is subject for review by this court. The respondent abandoned the third point of the Preliminary Objection and in her submission in respect of the 1st ground, she stated that whereas the application was instituted by ANDREA PETRO as an administrator of the estate of the late ANDREA MAFUMBA, and whereas the affidavit filed in support of the application is that of ANDREA PETRO the reply to the counter affidavit is that of PETRO ANDREA. These are two different persons in law. The Applicant is not an administrator of any estate and has never been a party to any proceedings which is subject to 3 ', the application for review. She therefore has no locus stand to bring this matter. As such the application has no legs to stand on. On the above submission the respondent prays that this application be dismissed with costs. On the other hand the Applicant contended that he has the necessary locus stand to file and prosecute this application. He is PETRO ANDREA and not ANDREA PETRO. Andrea is the name of the deceased father whose estate he is administering. It was typographical error which he corrected when- filing a reply to the. counter affidavit. A;, to the defectiveness of the affidavit it is submitted by the applicant that all paragraphs of his affidavit contain matters of fact and not of law or legal arguments. The contents of paragraphs 4 and 10 of the affidavit speak for themselves. In respect of the 4th ground of the Preliminary Objection, the applicant submitted that he is aggrieved by an order an order of the court dismissing his application instead of striking it out. It is a fact that the Hon. Juma, J (as he then was) dismissed the matter. The Honourable justice did not struck out the application. These are not legal arguments as contended by the respondent. Since there are no legal arguments in the affidavit the authorities cited by the counsel for the respondent remain irrelevant to this matter. That is all from the parties. As the locus stand point of objection, it is contended by the respondent that PETRO ANDREA and ANDREA PETRO are two distinct persons. As such the applicant has no locus stand 4 for he is shown to be ANDREA PERTRO in the application and as PETRO ANDREA in the reply. The difference in names was brought to the attention of the court on 18/5/2015 (before 6/7/2016 when the Notice of preliminary Objection was filed) when the applicant made a prayer to amend the chamber summons and supporting affidavit to show the name of PETRO ANDREA instead of ANDREA PETRO which prayer was not object by Mr. Chuwa, learned counsel for the respondent. As such the prayer was granted and records were amended to reflect the name of PETRO ANDREA. On the basis of that order, I find the first point of objection is misconceived and it is accordingly dismissed. As to the defectiveness of paragraphs 4 and 10 of the supporting affidavit, it is clear that in paragraph 4 of the affidavit the applicant is expressing his opinion and that he is giving conclusion in the averment under paragraph 10 of the Affidavit. This is truly offends the law regarding affidavits as provided for under Oder XIX Rule 2 (1) of the Civil Procedure Code which was judicially discussed by courts in cases, among others, of UGANDA V /S COMMISSIONER OF PRISONS (Supra) which had been followed by this court in M/S RUBYA SAW MILLS TIMBER (Supra) and TEMA ENTERPRISES LTD (Supra). As a remedy the two paragraphs are expunged from the records of the court. This does not affect the remaining part of the affidavit supporting the application. In his application the applicant seeks for enlargement of time in which to file an application for review of the decision of this court dated 5 15/7/2011 given in Misc. Civil Application No. 58 of 2008. Arguments by the respondent given in support of ground 4 of the objection purport to show that there is no judgment, order, decree that is capable of being reviewed. This attracts for production of evidence which fact disqualifies the point as a Preliminary Objection. As such, the ground cannot be sustained. I have considered the objections raised and on the basis of the above discussion save for the defectiveness of the Affidavit which led the court - -- - - ---expuAging -pa~agraphs-4-and-10 -Of tbe_affidav_it,_l_find_no any _merit iriJh_e_ __ objection and it is therefore overruled with costs. Dated at Dar es Salaam this 14th day of April, 2016. E. J . ~ a JUDGE 14/4/2016 6