qd consult tanzania limited vs the board of trustees of public service social security fund pssf other 2023 tzhccomd 246 3 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 97 OF 2018 qD CONSULT TANZANIA LIMITED ….……….…………….……1ST PLAINTIFF UNDI CONSULTING GROUP LIMITED ………………..……….2ND PLAINTIFF KIMPHIL KONSULT TANZANIA LIMITED ………………..…...3RD PLAINTIFF BANGALIMA ASSOCIATES….………………………………..…...4TH PLAINTIFF VERSUS THE BOARD OF TRUSTEES OF PUBLIC SERVICE SOCIAL SECURITY FUND (PSSSF)……1ST RESPONDENT THE HON. ATTORNEY GENERAL……………..…………...…2ND RESPONDENT RULING Date of last order:03/07/2023 Date of ruling:21/07/2023 AGATHO, J.: This ruling was in respect of Preliminary Objection (PO) raised by the 1st and 2nd respondents against the application. Upon hearing of oral application by Mr Deogratius Ringia, the applicant’s counsel, Mr Francis Wisdom, the respondents’ State Attorney raised a PO: That this honourable court lacks jurisdiction as the oral application was dismissed for being time barred the fact which was concede by the applicants’ counsel. 1 Before examining the rival submissions of the parties on the PO, it is pertinent to sketch a background of the application. Briefly, the applicants counsel orally applied to the court for joining of the administrators of the estate of the Peter Komba trading as Bangalima Associates who is the 4th Plaintiff in the main suit. The application encountered objection from the respondents’ State Attorney on the ground that the application was dismissed for being time barred and it cannot be brought back again before this court. On 03/07/2023 Mr Deogratius Ringia, counsel for the applicants (plaintiffs) moved the court under Order XL III Rule 2 of the CPC and prayed for leave to move the court under Order XXII Rule 3 (1) of the CPC that the joint administrators of the QS Peter Komba trading as Bangalima Associates be joined in the suit in the shoes of the late QS Peter Komba. Mr Ringia also prayed to move the court under Rule 24(5) (b) of the HCCD Procedure Rules for the court to grant the said amendments to be recorded in the court file without the parties filing amended pleadings to avoid further delays as the case is of 2018 which is a backlog. On the adversary side stood Mr Francis Wisdom, learned State Attorney. He submitted that on a close look they noted that the letters of 2 administration were granted on 29/03/2023 and by virtue of Part III item 16 of the Schedule to the Law of Limitation Act [Cap 89 R.E. 2019] it provides 90 days limitation to make an application for legal representatives of the deceased plaintiff to be made a party to the suit. He submitted further that by counting the 90 days from 29/03/2023 they expired on 28/06/2023. Mr Wisdom invited the court to look at Section 3(1) of the Law of Limitation Act [Cap 89 R.E. 2019]. That provision provides for dismissal of application lodged after expiry of time prescribed. He thus prayed the court to dismiss the application. Mr Ringia for the applicants was not wordy he wisely and humbly conceded to the PO and noted that the application is late for four days. He thus asked the court to dismiss his oral application without costs. On account of what was submitted by the parties and in particular the admission by the applicants’ counsel the application was indeed time barred and having considered the provisions of Part III item 16 and Section 3(1) of Cap 89 R.E. 2019 the oral application to join the administrator of the late QS Peter Komba trading as Bangalima Associates was dismissed without costs. Surprisingly, after the court pronounced the application dismissal order for being time barred, Mr Ringia sought to move the court to make 3 an oral application under the provision of Order XLIII Rule 2 of the CPC to make an omnibus application: To inform the court of the demise of QS Peter Komba, to apply for extension of time and for leave of the court to apply orally for an order to join legal representatives of QS Peter Komba under Rule 24 of High Court Commercial Division Procedure Rules. Mr Wisdom, State Attorney for the respondents had no objection to Mr Ringia’s prayers to make oral application. The court granted Mr Ringia for the applicant to make submission on the oral application. Mr Ringia in his submission stated that the application is made under Section 14 (1) of Cap 89 R.E. 2019 for extension of to join the joint administrators of the estate of the late QS Peter Komba trading as Bangalima Associates. Thereafter, Mr Ringia learned counsel for the applicants went on submitting on the grounds of extension of time. That there was no in ordinate delay, that he saw the letter of administration for the first time in court on 03/07/2023 and that it was the first he met Mr Delphinus Komba after they have been looking for him for some time. According to him, Mr Deliphinus Komba was unaware that his father (the late QS Peter Komba) had a case in court. Mr Ringia submitted further that Mr Deliphinus Komba told him that it took him about one month to 4 get the letter of administration from the court. He got the letter towards the end of April 2023. The applicants’ counsel submitted that counting 90 days excluding weekends then the application is late for a day or two. Mr Ringia suggested that under the provision of Section 14(1) of the Law of Limitation Act [Cap 89 R.E. 2019] the court can extend time after the expiry of 90 days prescribed in the law. Mr Ringia sought to impress the court that the nature of the application is a matter of death not a planned event or celebrated matter. The applicants are applying to be joined in the suit as legal representatives of the 4th plaintiff who is deceased. He added in his submission that the defendants will not be prejudiced. Mr Ringia did not end up there, he referred the court to Article 107 A(2)(e) of the Constitution of the United Republic of Tanzania, 1977 requiring the court to dispense substantive justice without being tied with technicalities. The applicant’s counsel invited the respondents’ State Attorney if wishes to cross examine the administrators of the estate of the late QS Peter Komba. The learned counsel concluded by pleading with the court to grant the extension of time for the legal representative of the estate of the 4th plaintiff to join in the suit. 5 Mr Wisdom, State Attorney responded to Mr Ringia’s submission. He was of the view that foremost it was not proper for the omnibus application for extension of time and leave to join the administrators in the suit. He rightly submitted that these applications are governed by different laws. While the application for extension of time is made under Cap 89 R.E. 2019, the application for legal representative to join in the suit is made under the CPC [Cap 33 R.E. 2023]. This was held in Rutagatina C.L. v The Advocates Committee and Another, Civil Application No. 98 of 2010. Later in 2021, in Juma M. Nkondo v TOL Gases Limited/Tanzania Oxygen Limited & Abdulrahman Mohamed Khatibu, Civil Application No. 382/01/ of 2019 CAT at Dar es salaam where it was held that the applicant was required to apply for extension of time first. It also held that omnibus application is disallowed if they are falling under different laws. Arguing on whether the condition for extension of time have been met, Mr Wisdom was of the view that one of the conditions is that the applicants have to show that they were diligent and not sloppy. He submitted that the applicants have not brought any evidence to show that their delay was due to follow ups at the court for grant of letter of administration. 6 Thereafter, Mr Wisdom reminded the court that it had already delivered a ruling on the joint administrators’ application to join in the suit. The court dismissed the application for being time barred. He correctly submitted that the if application is dismissed the court cannot reopen it again. It becomes functus officio. He thus prayed the same be dismissed with costs. Mr Donald Chidowu, counsel for the applicants rejoined on what was opposed by Mr Wisdom, State Attorney. He submitted that the argument that application was dismissed cannot stand because the respondents (defendants) supported the application. On this point and without meandering the court is of the considered view that Mr Chidowu’s submission is misplaced as the issue of dismissal of an application for being time barred is matter of law. It does not matter whether one has supported or objected it. That aside, Mr Chidowu continued to react that the respondents’ State Attorney want to invoke the doctrine of re-judicata. He opined that under Section 9 of the CPC the doctrine of res judicata applies to suit. But it is this court’s view, and unfortunately for the applicants’ counsel, the issue of dismissal of application for being time barred is clear under the law that the court cannot re-open it. Therefore, it was not open for the 7 applicants to come back to the court and apply for extension of time, the application which was dismissed earlier for being time barred under the provision of Section 3(1) of the Law of Limitation Act [Cap 89 R.E. 2019]. In the premises and considering East African Development Bank v Blue Line Enterprises Ltd, Civil Appeal No. 101 of 2009 CAT and Ngoni-Matengo Cooperative Marketing Union Ltd v Ali Mahomed Osman [1959] EA 577 holding that a dismissal order under section 3(1) of the Law of Limitation Act constituted a finality of the suit, appeal or application with no room for a litigant going back to the same court for extension of time. That is conspicuous on page 15 of Johnson Amir Garuma v The Attorney General and Two Others, Civil Appeal No. 206 of 2018 CAT at Dar es salaam. To cement on what has been held here, the court is of the settled view that Section 14(1) of Cap 89 R.E. 2019 does not empower a party whose suit or application was dismissed for being time barred to knock at door of the same court that gave dismissal order seeking extension of time. That will amount to abuse of court process because in as far as the court is concerned the issue of time limitation has been determined. That was also held in Olam v Uganda Suing Through its Attroney United Youth Shipping Company Limited v Tanzania Harbour Authority, Civil Appeal No. 57 of 2002 CAT and Hashim Madongo and Others v Minister for 8 Industry and Trade and 2 Others, Civil Appeal No. 27 of 2003 CAT (unreported). Mr Chidowu further rejoined on the submission by Mr Wisdom that omnibus application is not allowed especially if they are found under distinct laws. The applicant’s counsel protested the objection by Mr Wisdom. He submitted that it is allowed to make omnibus application. He supported his submission with the case of Ubungo Garments v Hassan Nuru Hassan and Other [1996] TLR. However, the court found that the case of Ubungo Garments (supra) which Mr Chidowu said held the omnibus application is allowed did not say so. Again, the court has already ruled that omnibus application is not permitted if they fall under different laws as per CAT decision in Juma M. Nkondo’s case (supra). In fine, the application is dismissed. And given the nature of this case each party shall bear their costs. It is so ordered. 9 DATED at DAR ES SALAAM this 21st Day of July 2023. U. J. AGATHO JUDGE 21/09/2023 Date: 21/07/2023 Coram: Hon. U.J. Agatho J. For Plaintiffs: Judith Ulomi, Advocate For Defendants: Kabula Malima, and Francis Wisdom, State Attorney C/Clerk: Beatrice Court: Ruling delivered today, this 21st July 2023 in the presence of Judith Ulomi, counsel for the Plaintiffs, learned counsel and Kabula Malima, and Francis Wisdom, State Attorney for the Defendants. 10 U. J. AGATHO JUDGE 21/07/2023 11