20140630 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. CIVIL APPLICATION NO. 5 OF 2012 (Arising from PC Civil Appeal No. 35 of 2009 of the High Court at Dodoma) ZAINABU ALLY MANGARA ( as the Administratix of the estate of ... ALLY MANGARA, ,now deceased ..................... APPELLANT VERSUS MWANAHAWA MANGARA ........................... RESPONDENT EXPARTE - RULING 31/3/2014 & 30/6/2014 HON. R. K. MKUYE, J. On 13/4/2012, Zainabu Ally Mangara (as the administratix of the a estate~ of Ally Mangara) through the services of Ms.Njulumi & Co. ·. . Advocates filed an application to this court to be pleased to allow the applicant to be made a party to (PC) Civil Appeal No.'\35 of 2009 in her capacity as the duly l appointed Administratix of the estate of.. ~ the late Ally Mangara so as to defend tht\Grviving right and to sue in the matter; and for costs of the application. The application is supported by an affidavit of Cheapson Luponelo Kidumage learned advocate. 1 ,.. \J On the 20 th day of March, 2013 Mr. S. Ng'wigulu of MN & Associate Advocates Co, counsel for the respondent Mwanahamisi Mangara filed Notice of preliminary objection with two points as hereunder: ( 1) That the application filed in this Hon. Court is bad in law for being time barred. (2) That the application is bad in law as this Hon. Court · has been moved under wrong provisions of the law. On 21/10/2013 when the Preliminary Objection was called out . for hearing it was agreed by consent of both parties and the court ordered that the same be argued by written submissions on the schedule that the respondent files his written submission by 4/11/2013, the applicant to file his reply to written submission in chief by 18/11/2013 and rejoinder, if any, by the respondent by 25/11/2013. On the 4th November, 2013 the respondent filed his submission as was scheduled. The applicant who was supposed to file their reply by 18th day of November, 2013 did not file their submission. The respondent could not, therefore, get any written submission even upon perusal in the case file as per the Exchequer Receipt No. 47756465 dated 17/2/2014. It means the applicant has waved his right to file his reply to the written submission. 2 ,,-.:~,'~ _ _,.: I l \1 In arguing the points of preliminary objection, Mr. Ng'wigulu learned advocate contents that, though item 16 of Part Ill of the Schedule to the Law of Limitation Act, Cap. 89, R E 2002 requires applications under Civil Procedure Code to have legal representative of the deceased party, whether in a suit or an appeal to be made or filed within ninety days, in this case the applicant made such an application five months after she was issued with a letter of administration of the deceased's estate on 27/9/2011. Hence, he contented that the application is inordinately time barred. With regard to the 2nd point of objection, it is Mr. Ng'wigulu's submission that section 68(e) of the Civil Procedure Code that empowers the court to make interlocutory order which is the provision of the law relied upon to move the court, is wrong as the matter at hand is not an interlocutory application. On the other hand, the learned advocate contents that section 95 of the Civil Procedure Code which is also relied upon is inapplicable as it is applicable only where there is no specific provision to cater for a situation. He has cited the case of Helen Jacob V. Ramadhani Rajabu (1996) TLR 139 in which the case of Nero Helicopter (T) Ltd V F. N. Janson (1990) TLR 142 was referred in which it was held: "Where there is a law making provision for exercise of power by a court then inherent powers of the court can not be invoked". 3 \_, On top of that the learned advocate argued that since the suit originated from Utemini Primary Court the applicant ought to have invoked the provisions of the Magistrates Courts Act Cap. 11 RE 2002. The learned advocate lastly argued that the applicant Zainabu Ally Mangara has no locus standi to appear and step into the shoes of her late deceased father since the original suit was matrimonial and originated from a matrimonial contract. Otherwise, the learned counsel argued that, the matter ought to abate on the death of the appellant. Much as I appreiciate the submission eloquently made by the learned counsel for the respondent on all points of objection including the additional point relating to lack of locus standi by the applicant, I wish to deal with the issue relating to time limitation since I, think, it can sufficiently dispose of the whole application without necessarily discussing the remaining points. The issue, therefore, is whether the application was time barred. Item 16 of Part Ill of the Schedule to the Law of Limitation Act, Cap. 89 RE 2002 provides: "16 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". 4 According to the above provision of the law, an application to be made a representative of the deceased party in a suit or an appeal under the Civil Procedure Code is to be made before the court within ninety (90) days. In the matter at hand, the deceased whose representation is sought died on 9/5/20011. The applicant petitioned and was issued with letters of administration of the deceased' s estate on 27 /9/2011. She filed this application, according to the Exchequer Receipt No. 41591146 on 2/4/2012 which was 127 days after being issued with the letters of administration of the deceased estate. There is no doubt that the application was filed out of time and therefore time barred. The next question is what would be the effect of such an application. I think, the answer to this question is not far fetched. Section 3(1) of the Law of Limitation Act, Cap 86 R E 2002 provides: "Subject to the provisions of this Act, every proceedings described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefor opposite thereto in the second 5 column, shall be dismissed whether or not limitation has been set up as a defence." As the said the application was filed 127 days or more than four months from the time when the applicant was issued with letters of administration of deceased's estate, it was time barred and according to the above cited provision of the law it deserves to be dismissed. In the final event, as the application is time barred, it is dismissed with costs. ~~-Q___ (R. K. MKUYE) JUDGE 21/5/2014 Delivered on the 30 th day of June, 2014 in the precence of Mr. Ng'wigulu advocate for the respondent and in the absence of the applicant. ~ ' - - j _Q___,- (R. K. MKUYE) JUDGE 30/6/2014 6 , I /