IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(ARUSHA DISTRICT REGISTRY)

AT ARUSHA
CIVIL APPEAL NO. 9 OF 2021

(C/f Civil Case No. 58/2020 of the Resident Magistrate Court ofArusha at Arusha)

BAHATI MGONJA T/A Y&H MGONJA ENTERPRISES................... APPELLANT

VERSUS
THE DON'S GROUP TANZANIA..................................... 1st RESPONDENT
JACQULINE ALBERT MSANDO ........................ 2nd RESPONDENT
ALBERT GASPER MSANDO.......... ........................ ,3rd RESPONDENT

JUDGMENT
22/3/2022 & 21/4/2022

GWAE, J

This appeal is aimed at inviting this court to ascertain whether the

decision of the Resident Magistrate's Court of Arusha at Arusha (Trial

court) delivered on the 22dd January, 2021 sustaining the respondents'

preliminary objection on a point of law based on the limitation of time on

a part of the appellant's claim contained in paragraph 7 (viii) of the plaint,

was properly founded.

On the 21st September 2020, the appellant, Bahati Mgonja t/a

Mgonja Enterprises instituted a suit against the respondents herein above

claiming payment of outstanding debt balance at the tune of Tshs.181,

236,300/=, interests, general damages, payment of costs of the suit and

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any other relief (s) that may be deemed fit to grant by the court of first

instance. One of the appellant's claims against the respondents is on

paragraph 7 (viii) of his plaint which reads and I subscribe as herein

under;

"The plaintiff also demands from the defendants the total

of Tanzania Shillings eighteen million three hundred
seven thousand and eight hundred (Tshs. 18, 307,
800/=) which occurred from previous business of Hook
up after the defendants managed to pay only four million
(Tsh. 4,000,000/=) through cheque No. 000460 of 5th
March 2020 out of the total debt of Tanzania Shillings
Twenty million three hundred and twenty-seven and eight
hundred (Tsh.22,327,800/=)".

The trial court having heard the parties'advocates on the canvassed

point of law by way of written submissions came into a conclusion that

the claim by the appellant under paragraph 7 (viii) of the plaint

reproduced herein above is time barred on the ground that the appellant

did not state when precisely the cause of auction arose and that parties'

negotiations as to payment of the debt without taking legal actions on the

part of the plaintiff is done at his own risk. He relied on the decision of

Makamba Kigome and another vs. Ubungo Farms Implements

Limited and another, Civil Case No. 109 of 2005 (unreported-H.C).

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Consequently, the appellants claim under paragraph 7 (viii) of the plaint

was dismissed.

Aggrieved by the order of the trial court dismission the said part of

his claim, the appellant filed this appeal advancing one ground of appeal,

to wit;

"That the trial court erred in law and fact by dismissing the

claim contained in paragraph 7 (viii) of the plaint by the reason

that the same is time barred"

When this appeal was called on for its scheduled hearing, the

appellant and respondents were represented by Mr. Muhalila and Mr. Allen

Godwin respectively, both are the learned advocates.

Arguing for the appellant's appeal, Mr. Muhalila was of the opinion

that the appellant's claim under the paragraph 7 (viii) of the plaint was

not time barred since last payment was made on the 5th March 2020.

Therefore, according to him, the cause of action did arise when the

respondents defaulted repayment as per section 5 of the Law of Limitation

Act, Cap 89 Revised Edition, 2019 (Act) not the period when the parties

entered into the contract. He then urged this court to make a reference

to a Journal known as "St. John's Law Review".

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 Opposing this appeal, the learned counsel for the appellant argued

that, the said appellant's claim was time barred as found by the trial court

as it is clear that the complained breach arose since 2014 when the

appellant was not paid. According to the respondents' counsel, the period

started to run against the appellant from the date of his supply adding

that the said Hook up was closed since 2015. He the invited the court to

make a reference to the decision in Zaidi Baraka and two others vs.

Exim Bank, Civil Appeal No. 194 of 2016 (unreported-CAT).

The appellant's counsel rejoined to the oral submission by the

respondents' advocate by stating that, the case of Zaid cited by the

respondents' counsel is distinguishable from the latter since the payment

for the supply of beverages in this case was not specific while in the

former case the period for payment was specific. He further added that

the preliminary objection canvassed by Mr. Alien is not a pure point of law

as it requires proof.

The issue before me is therefore, whether the trial court was

justified to dismiss the appellant's claim under paragraph 7 (viii) of the

plaint on the reason that the same was time barred as it contravenes item

7 of Part 1 of the schedule to the Act.

I am alive of the law of Law of Limitation (supra) if an action filed

out of the prescribed period in the District Court or that of Resident

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Magistrate Court or this court, the consequential order is: no other than

an order dismissing a suit or an appeal Or an application pursuant to

section 3 (1) of the Law of Limitation Act (supra) which provides:

"3(1) Subject to the provisions of this Act, every

proceeding described in the first column of the Schedule
to this Act and which is instituted after the period of
limitation prescribed therefore opposite there to in the
second column, shall be dismissed whether or not
limitation has been set up as a defence".

This position of the law has been consistently been stressed in

various judicial decisions, for instance in Soza Plastic Industries v.

Scolastica Chawalla, Labour Revision No. 73 of 2012 (unreported-

Labour Division) where it was held inter alia that, the remedy for a time

barred application filed without condonation is dismissal. The Law of

Limitation was essentially enacted to prevent a party from coming to a

court at any time of his or her own choice and therefore maintenance of

Speedy administration of justice.

In our case, the part of the appellants claims contained in the Para.

7 (viii) of the plaint though emanates from previous business in the name

of Hook up, however the plaintiff did not specify the period when it was

closed nor did the defendants specifically state when it was closed save

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to his general denial of the appellant's claims under paragraph 7 of the

plaint.

Moreover, there is no copy of the parties' contract that was

appended to their pleadings to enable the trial court to justly and

opportunely rely in its decision sustaining the respondents' preliminary

objection on limitation of time, the said lapse of six years is either scantly

pleaded or not all pleaded as opposed to the case Zaidi Baraka and two

others vs. Exirri Bank (supra) where the cause of action arose once

after the appellants had defaulted to repay the overdraft facility.

In my considered view, the respondents' preliminary objection is not

maintainable in law as the same need ascertainment of some facts for

example when exactly the said Hook up was closed, when the contract

between the appellant and the said Hook up was entered into and when

specifically the appellant supplied beverages in favour of the respondents

for the last time. Preliminary objection must be based on a pure point of

law which, if argued and determined, will dispose of the matter. This legal

position was emphasized by the court (late Rweyemamu, 1 may her

soul rests in peace) in Musanga Ng'andwa vs. Chief Japhet Wanzagi

and 8 others (2006) TLR 352 where she held among other things that;

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 The expression preliminary objection has been used in our
jurisdiction to refer to objection to the jurisdiction of the
Court, a plea of limitation and the like; it contains a point
of law which, if argued as a preliminary point, may dispose
of the suit; a preliminary objection cannot be raised if any
fact has to be ascertained, that is, it cannot be based on
unascertained factual matters"

(See also the most famous judicial prudence in the case of Mukisa

Biscuits Manufacturing Company LTD vS. West End Distributors

LTD (1969) EA 696).

In our instant suit, there are facts which require proof as earlier

explained, the parties' pleadings leave a lot to be ascertained during

hearing of the matter on merit rather than at the stage of preliminary

hearing. Therefore, the learned trial magistrate ought to have declined

sustaining the respondents' PO.

I have also considered the appellant's pleaded fact especially the

fact that, the respondents managed to pay only four million (Tsh. 4, 000,

000/=) out of the claimed sum of money (Tshs. 22, 327, 800/=) through

cheque No. 000460 dated 5th March 2020. This appellant's pleading

presupposes that, the respondents in a certain period of time (5/3/2020)

acknowledged the appellant's claim by paying a part--of the claim.

According to law of limitation, if a party, debtor makes a part payment of

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a debt, then accrual of an action used to statutorily start afresh pursuant

to section 27 (.3) of the Law of Limitation (supra) which provides;

"27 (3) Where a right of action has accrued to recover a

debt or other pecuniary claim, or to recover any other
movable property whatsoever, or to recover any sum of
money or other property under a decree or order of a court
and the person liable or accountable acknowledges the
claim or makes any payment in respect of It, the right of
action in respect of such debt, pecuniary claim or movable
property, or as the case may be, the right of action in
respect of an application for the execution of the decree
or the enforcement of the order, shall be deemed to have
accrued on and not before the date of the
acknowledgement or payment, as the case may be, the
date of the last payment (emphasis supplied)".

The appellant has also plainly pleaded an acknowledgment by the

respondents of his outstanding debt through a copy of letter dated 22nd

July 2020, the pleading which is capable of justifying statutory exclusion

of accrual of a right of an action as per section 27 of the Act. More so, a

cause of action for breach of unspecific contract accrues at the moment

the contract is breached and not when the contract was entered into as

correctly argued by the appellant's counsel. Worse still, it is evident from

the appellant's plaint, that, the alleged breach is of 2019: and not of either

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2014 or 2015 (See Para.7 (i)-vii) save to viii where she plainly seeks

statutory exclusion of the accrual right of action as alluded above.

For the foregoing reasons, the appellant's appeal is hereby allowed.

The decision of the trial court sustaining the respondents' PO on limitation

of time is quashed and set aside. The matter be remitted to the trial court

for hearing and determination on merit including Paragraph 7 (viii) of the

plaint and be given first the priority as far as expeditious hearing and

determination of the same is concern. For avoidance of unnecessary

apprehension of bias by the appellant which may lead to further delay of

disposal of the matter, the matter be re-assigned to another Resident

Magistrate with a competent jurisdiction. Costs of this appeal shall be in

the course.

Order accordingly.

JUDGE
21/04/2022

Court: Delivered in the presence of the parties' advocates namely; Mr.

Bwemelo for the appellant and in the respondent's absence.

JUDGE
21/04/2022