20110117 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC·ELLANEOUS CIVIL APPEAL NO. 102 OF 2009 MAGRET JOSEPHAT Legal Representative of - ,1 JOSEP__ff_AT RUGAIMUKAMU VERSUS THE EDITOR MAJIRA NEWS PAPER AND BUSINESS - - -" TIMES LIMITED - Date of last Order: 13/12/2010 Date of Ruling : 17/01/2011 RULING MASSENGI, l, Applicants The Editor Majira News Paper and Business Times Limited represented by Mr. Lyimo learned advocate 1 are applying for leave of this court to Appeal to the Court of Appeal against the judgment of this court dated 10.02.2010. Respondent Magreth Josephat on the capacity of Legal Representative of Josephat Rugaimukamu was unrepresented. Applicants in their affidavit supporting the application stated that they are seeking leave to file an appeal to the Court of Appeal on two points of law that is:- (a) Whether the appellant Judgment was correct in holding that the appellant was not time barred in making an application to be joined as a legal representative. (b) Whether the cause of action survived the death of the plaintiff regard being that of defamation case. In her counter affidavit the respondent stated that applicants have no satisfactory reason to appeal on the said points of Law which have been already determined in several rulings which according to the provisions of the law makes the same not to be appealable. In his submissions applicants' advocate Mr. Lyimo argued that according to law, an administrator of deceased's estate may apply to be joined in a suit whereby the 2 t: .. ..___. deceased was a party as a legal representative under Order 22 rule (3) of the Civil Procedure Code Cap 33. R. E. 2002 The application has to be made within 90 days after letters of appointment has been issued as per 16th item of Part 3 of the schedule of the Law of Limitation Act. Respondent in this application was issued Letters of Administration of the estate of her later husband on 24/04/2005 and filled the application for being joined in a suit as legal representative on 21/6/2007 which was about 22 months later without obtaining leave to file the same out of time. The High Court erred in holding she was not time barred. The second point of law is that the deceased has a claim before Morogoro RM's court based on the tort of defamation and he died while the suit was pending in court. He further submitted that according to the proviso of section 9(1) of the Law of Reform Fatal Accidents and Miscellaneous Provisions Act Cap 310 a suit of defamation will not survive after the death of the claimant. And the High court didn't took this provision in to consideration in its judgment and therefore the era should be rectified by Court of Appeal. Respondent in her submission argued that when she was issued letters of administration the case file in which her 3 late husband was claimant was on appeal before the High Court in Dar es Salaam and therefore she couldn't file her application to be joined as legal representative. She made a follow up of the case file for almost a year and when the record was remitted back to Morogoro her application was not time barred. On the 2nd point she argued that according to rule 3(a) of the Law Reform Fatal Accidents and Miscellaneous -., Provisions Act Cap 310 provides that if at the time of the death of either party the suit was pending in a court of law then the suit will survive. As by the time of the death of her husband this suit was still pending in court, she pray the application to be dismissed. After going through the record the submissions of both parties, I find that this court and the lower court found that the respondent was not time barred in making an application to be joined as a legal representative. The applicant intends to challenge that decision that is this court and the lower court erred as according to the Law of Limitation Act, 16th item of Part 3 of the schedule to the Act, the application has to be filled within 90 days after letters of administration has been issued. According to applicant the application was filled 4 '--- after expiration of 90 and without leave. Therefore there is a point of law involved in which it requires the Court of Appeal to determine. As to whether the application was filed out of time or not. The second point of law the applicant is saying through this court and the lower court found that the suit of defamation will survive after the death of the claimant in terms of section 9 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310 R.E 2002 the applicants intends to challenge it for not taking into consideration the proviso, I also agree that there is a point · of law to be determined by the Court of Appeal that is whether under section 9(3) of the Law of Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310 R.E 2002 a suit of defamation will survive after the death of the claimant a not. After screening all the facts of this application and clear screening of this court's record and those of the lower court and the applicable laws I am fully satisfied that the applicant have establish the following points of law which requires to be taken to the Hon. Court of Appeal of Tanzania for determination that is:- 5 (i) · Whether the application by respondent to be joined as a legal representative in this case was filled in time that is within 90 days as required by item 16 of the schedule to the Law of Limitation Act 87 R.E 2002. (ii). Whether a suit on the tort of defamation, right to sue survives after the death of the claimant as per section 9(3) of Law Reform (Fatal Accidents and Miscellaneous Provision) Act Cap 310 R.E 2002. For the above reasons I am satisfied that the applicant has established points of law in his application which requires to be determined by the Court of Appeal and I hereby grant leave to appeal to the Court of Appeal under section S(l)(c) of the Appellate Jurisdiction Act Cap 141 R.E 2002 and Rule 45(a) of the Court of Appeal Rules, 2009 on the above stated points of law. F.H. Massengi JUDGE 14/01/2011 6 -I-/ .. 7 ·~ Delivered in chamber court this 17th January, 2011 in absence of applicant and presence of respondent. F.H. Massengi JUDGE 17/01/2011 7 1: 'I i . .... \) n .1 :~ l l ! i l -~ ,.-~ ti! I ... ,· !\ ;It 'f~ 'I ':. :t '·. I !"' \1, 1" ; • .''f· ,J !I ''. / Jt ~ --:-- Ir ('