20181030 TZHC Dar es Salaam

. IN THE HIGH COURT OF TANZANIA DAR ES DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 284 OF 2002 THE INTERNATIONAL ISLAMIC RELIEF ORGANISATION ............................................................... PLAINTIFF VERSUS HASSAN A. MJEJA ......................................................... DEFENDANT RULING E.B.LUVANDA,J. A flash back of this matter is traced on 5/8/2002 when an original (first) plaint was presented for filing.· From it is inception, nothing has been done, apart from disposing off preliminary objectives. Even a first pretrial conference has not been conducted. Todate, the matter is still at a stage of mention, being after elapse of sixteen years. On 26/7/2018, the learned Counsef for defendant had informed !b,e Court that the defendant ·had passed away. . On 27 /9/2018, I posed a question to the learned Counsel for the plaintiff to address the Court if the matter whose 1 . , 'I cause of action is based on allegations of embezzlement can· survive ofter the demise of the defendant. Mr. Doimu learned Advocate for the plaintiff submitted that the claim survive because is a claim for money and not status. That claims like defamation matrimonial and election petition abate upon death of either party. That this is a claim for payment of money which someone hod embezzled and it survive against his estate as there is an agreement where the defendant had committed himself to pay. The learned Counsel for plaintiff cited section 9 ( 1) of the Low Reform Fatal Accident & Miscellaneous Provision Act, Cop 31 O and a case of Said Kibwana and General Tyre East Africa Limited Vs Rose Jumbe (1993) PP 175, 1.78& 179. That they ask for time to wait appointment of an administrator of estate of the deceased, or if there is no appointment deliberately, they shall see other means to bring to court those who are in possession of the deceased property. Mr Njoma learned Counsel for the defendant was of the view that if a case abate, it will be a relief to them, but they don't have grounds to support that position. 2 " Principally my query or proposition was based on a fact that a claim of embezzlement pleaded by the plaintiff boarders a criminal charge. Blacks Law, 8th Edition, at page 1580, define embezzlement, " ..... .as fraudulent conversion of the property of another by one who has lawful possession of the property and whose fraudulent conversation has been made punishable by the statute." In the context, I entertained doubt as to how the plaintiff could prove in civil suit that there was a fraudulent, in the absence of a criminal charge or proceeding to that effect and after the death of the defendant. Be as it way I share hands with the learned Counsel for defendant, that basically there is no ground upon which a suit can abate on that line of argument or proposition. I nod to the plaintiff Counsel argument that a suit survive under section 9(1) Cap 310 (supra) However, that fact alone cannot take my argument to rest. As there is still a glaring question as to whether this suit can survive after the death of defendant which was 3 ;f reported in Court on 26/7/2018. In the course of arguing, the learned Counsel for plaintiff submitted that they ask for time to await appointment of an administrator of estate of the deceased, or if there is no appointment deliberately, they shall see other means to bring to court those who are in possession of the deceased property. This argument seems to be persuasive, but unfortunate the law is not in it is favour. The stance of the law goes this way, starting with Order XXII rule 4 ( 1) and (3) Cap 33 R.E. 2002, provides, I quote,. " ( 1) Where one of two or more defendants die and the right to sue does not survive against the surviving defendant or defendants, or a sole defendant or sole surviving defendant dies and the right to sue survive, the court, on an application made on that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit 4 (2) ... no applicable ... (3) where within the time limited by law no application is made under sub rule ( 1), the suit shall abate as against the defendant." Item 16 of Part Ill to the Schedule of Law of Limitation Act, Cap 89 R.E. 2002, provide, I quote " Under the Civil Procedure Code to have a legal representative of a deceased party, whether in a suit or on an appeal, to be made a party ... ninety days." As I have said earlier herein above, that on 26/7/2018 the leaned Counsel for defendant notified the Court informerly that the defendant had passes away on 19 /7/2018. Indeed on the submission of the learned Counsel for plaintiff alleged that they are awaiting the appointment of the defendant legal representative, which prove that indeed the defendant met his demise on 19 /7/2018. According to the above cited law, an 5 ,I application for a legal representative of a deceased to be made a party is limited to ninety days, which are reckoned from the death of the defendant. In this context, a. grace period of ninety days had expired on 19/10/2018. There be no application for a legal representative of a deceased to be made a party or extension thereof, a suit stand to abate. An argument by the learned Counsel for plaintiff who asked for time to await an appointment of a legal representative of the deceased or else to bring to Court whoever is in possession of the defendant (deceased) property, is legally untenable and unsound. A suit abate against the defendant under XXII rule 4(3) Cap 33 (supra). I make no order to costs, as this point was taken up by the courtf'S-UO motu. E.B. VANDA ~ DGE 3 /10/2018 6. 30/10/2018 Coram: Hon. Luvanda, J For the Appellant: Absent For the Respondent: Mr. Njama Advocate. Cc: Placidia Court: Ruling delivered. El. JUDGE LUVANDA 0/10/2018 7