20100916 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL CASE. 197 OF 2005 PROTACE MUGONDO ................................ PLAINTIFF

VERSUS THE ATTORNEY GENERAL & ' \\ AN OTHER ...........·...................................... DEFENDANTS ( -~-) Date of last order - 1 6/ 7I201 0 Date of Ruling - 16/ 9/ 2010

RULING Mwarija, ·J. In - this suit, the learned State Attorney raised a preliminary objectiqn which has five grounds as ,follows:- ) 1 ·, •• ) 1. That the plaintiff has not mentioned specific prov1s1ons of articles 12 to 29 of the Constitution which is being or is likely to be contravened in relation to him contrary to the requirement of s.4 of 1 the Basic[Rights] and Duties Enforcement Act, No. 33 of 1994.

2. The suit has been instituted in contravention of the mandatory requirement of the provisions of section 5 of Basic Rights and Duties Enforcement Act No. 33 of 1994. (~ c·J 3. This Hon. Court has no jurisdiction to entertain this matter as it contravenes section 10 of the Basic Rights and Duties Enforcement Act No. 33 of 1994.

4. The plaintiffs plaint contravenes O.VII of the Civil · Procedure Code 5. This matter is time barred. At the hearing of the preliminary objection, Ms. Makondoo, learned State Attorney appeared for the respo_ndents. She was assisted by Ms. Punzi, learned State Attorney. The plaintiff on the other hand appeared in person. 2 .. -: ~ - .~ ·. . ,l)<- .. t - •• ·_ \. : p ·,: .. . . . "":· ..; .?. . - . -~~;... . . :·:J~• Ar-guing the first ground of the preliminary objection, Ms. Makondoo submitted that although the plaintiff has alleged in paragraph 6 of his plaint that the deferidan ts have breached his constitutional rights, he did not cite the specific provision of the Constitution which was breached. Citing the Court of Appeal decisions in the cases of Almasi Iddie Mwinyi v. National Bank of Commerce & Anr, Civil 88 of 1988 (unreported) and Citi Bank (T) Ltd v. TTCL & 4 others, Civil Application No. 64 of 2003 (unreported), the learned State Attorney submitted that, like in the case of an application, non-citation of a constitutional provision is fatal and as such the plain tiff should be taken to have not .- ) :,.__) prope:r;ly moved the -court. In ground two of the preliminarily objection, the learned State Attorney submitted that the claim by the plaintiff should not have been by way of a plaint, rather it ought to have been brought by way of a petition through an 3 -

....... I.:,• •• 4 • originating summons.· She argued· that since s.5 of the Basic Righti and Duties Enforcement Act, Cap.· 3 has been breached, the matter now before the court should be found to be incompetent. As to the third ground., Ms. Makondoo submitted that the c_ourt has no jurisdiction to entertain the claim filed by the plaintiff because under paragraph 6 of the plaint, the claim is based on a breach of constitutional rights provided for under articles 12. ~ 29 of the constitution. According to the learned State Attorney, that· being the case, the proceedings for redress should be made in accordance with the provisions of the Basic Rights and Dutie·s Enforcement Act, and for that matter under s.10 of the said Act the matter ought to be determined by a full bench of this court . .On the fourth and . fifth grounds, the learned State . Attorney argued that since the claim is founEled on the . appeal process and since the plaintiff did not show when . 4 he did file his notice of intention to appeal, by instituting his claim 15 years after the date when he was supposed to have been released from prison, the claim is time barred. She said that given the preferred claim which is in the nature of tort, under the Law of Limitation Act, the plaintiff should have filed his claim within three years. It was /:) "_j further. argued by the learned State Attorney that by filing the

claim out of time and without stating the grounds for the delay, the plaintiff contravened the provisions of 0. VII r. 7 of the Civil Procedure Code and the refore on those grounds the suit ought to be dismissed. o, .,,. Responding to the submissions'by the learned State Attorney, the plaintiff submitted that his claim does not fall with the provisions of articles 12- 29 of the Constitution and the refore according to him, he was not bound to bring it in accordance with the provisions of the Basic Right~and Duties Enforcement Act. He said therefore· that his claim 5 was properly brought by way of a plaint. On the citation of the constitutional provision which he alleged to have been breached, he replied that_ since the court is better placed to know the particular provision, it was not necessary for him to cite it. He added that the court is vested with a duty of determining the case on the relevant provisions of the 8 Constitution and by citing those provi.sions, it w:ould have amounted to teaching the court on how to exercise its function. On the question· of jurisdiction, he. submitted that it was not for the parties to decide whether a case should be presided over by ~ panel of three judges or otherwise. He argued further that his case is .an ordinary suit based on the claim of special and general damages, not one based under the Basic Rights and Duties Enforcement

Act. Finally on the question that his suit is time bared, his response ·was that he was not .provided with a ·copy of the 6 judgment which he intended to appeal against. He said however that he managed to get a copy through his own means, not officially._ In deciding the preliminary objection, I intend to start with grounds three and two jointly. The issue raised in the submissions on the two grounds is whether the claim is one in which the plain tiff is seeking redress under article 30 (3) of the constitution or not. To answer that issue, it is pertinent to reproduce part of paragraph 6 of the plaint. It reads as follows:- "To refuse intentionally to attend · the plaintiff's appeal in the ideal and good time has resulted to (made) the plaintiff to serve his imprisonment to the most and of it without reasonable and · portable cause innocently. But this habit and custom the Government and the High Court of T Tanzania both.· have very · intentionally refused to respect our constitution. · And. have also deliberately refused to respect and protect the life and properties of the plaintiff as it is very described clearly in our constitution to be their duties. It does not matter if the result of the plaintiffs appeal ·' ,1 were good· or bad for him. But it was very necessary to be released in ideal and good time. ·In order to sue the complainant of · that case . in civil case for

damages or to appeal further to Tanzariia Court of Appeal. . As their duties which are very described clearly 1n the constitution. They intentionally betrayed and cheated · the plaintiff completely in actions ·contra:ry ,· to what are stated clearly in our constitution 8 (by refusing to attend the plaintiffs as appeal in good and ideal time)... therefore they intentionally broke our constitu_tion which is a legitimate and legal. contract between the plaintiff and them". · As can be gathered from that part of the plaint ) ( ) which was not drafted by ·a.fl advocate, reference to the Constitution was intended to emphasi~e the allegations of irresponsibility on the part of the officials who. according to the plaintiff failed to supply him with the necessary documents to enable him file his appeal.. He is emphasing that, had the said officials performed· their duties in accordance with the requirements of the Constitution, he would not have failed to get the documents promptly. 9 ·,· . ·:· :. :j/' ' But notwithstand the above stated position, a · wholistic reading of the plaint clearly shows that what is claimed by - the plaintiff is special and general damages resulting from the alleged delay or denial of necessary documents including a copy of '. judgment to enable him appeal against his (~) · conviction, the result of which he had to remain in prison until completion of his

sentence. As·· correctly put by Ms. Makondoo in her argument in ground No.· 4 · of the preliminary objection, the plairi tiffs claim· was in the nature of ·a tortious liability. In my considered view, the plaintiff was rQ not claiming for a redress as a result of breach of Constitution rights under articles 12 - 29 of the Constitution but for damages as stipulated -under . . paragraph 7 of his plai·n t. For the reasons stated 10 above therefore, I find the 2 nd and 3rd grounds to be lacking in merit and hereby overrule them. Having answered grounds No. 2 and 3rd in the negative, the first ground need not detain me. Apart from the fact, as found above, that the claim by the plain tiff is not governed by the Basic Rights and Duties Enforcement Act, non-citation of a provision of a Constitution or law in a paragraph of -a plaint cannot } in my view} render a claim incompetent. This 1s because a paragraph is merely a part of a plaint. Unlike an application, a plaint does not require citation of a specific provision of the law apart from its contents as provided for under O.VII r.1 of the CPC. On that basis that ground fails as well. Turning now to grounds No. 4 and 5 of the preliminary objection, the issue on these grounds is 11 . - :..J•. lj ~•¾f) I .. whether the claim is time barred or otherwise. As · correctly submitted by the learned State Attorney, the plaintiffs claim which

is found~d. in .tort was supposed to have been brought within 3 years from . . the time of accrual of the cause of action. That · period of limitation is provided for upder item 6 of F~ ·-·· the· schedµle to the Law of Limitation Act, Cap. 89 RE 2002. By bringing this suit after about 17 years - from the date of his conviction and 15 years after completing his sentence, the suit is undoubtedly time barred. In his submissions however, the plaintiff gave· 8 an explanation to the delay. He. contended that the _ delay was occasioned by the fact that he was denied a copy of the judgment until when, through·· his. own means,· unofficially obtained one. In essence,· what was submitted by the plaintiff is that he had a 12 ~ ground for failing to file his suit .within time and thus his suit is exempted from the time of limitation. That. being the plaintiffs reply, if he thought that such is a sound ground upon which the suit can be exempted from the period of limitation, he must have shown so in his plaint. I had an occasion to consider a similar I situation 1n the case of Mampashe Matatizo v. National Microfinance Bank & 2 others, Civil Case No. 155 of 2006. In that case the plaintiff filed his claim out of time prescribed by law for claims arising out of tort. Since he did not state in the plaint the grounds upon which he intended to be exempted from the period of limitation, his

plaint was rejected. The requirement to show the ground for exemption of the time of limitation is provided 13 .., •. for under O.VII r. 6 of the CPC cited by the learned. · State Attorney. That provision states as follows: "Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint sh<1.ll show the ground upon which exemption from such law is claimed. " Since compliance with the above cited prov1s1on 1s mandatory, a suit filed out of the pre~.c:r_-ibe~l ~period of Jjmitation without stating the · ground upon which that· period . of limitation can be exempted, becomes time barred. . In the case of Alfons. Mohamed Chilumba v. Dar es 0 () Salaam Small Industries Development Cooperative Society ( 198 6) TLR 91, this court, Mapigano, J. (as he then was) held as follows regarding a suit filed out of tirrie without statement of the ground for exemption of the time of limitation. 14 : ,i-. ·.·: ~ :--- ·, -:- • '!: : •· I " Order 7 rule 6 CPC provides that where the suit is instituted after the expiry of the period · prescribed by law of limitation, the plaint shall show the ground upoh which exemption from such law is claimed. In other words, where but for some ground of exemption from the law of limitation, a suit would pri.me f acie be barred by limitation, it is necessary for the plaintiff to show in his plaint such ground of

exemption. If such ground is not shown in the plaint, it is liable to be rejected under rule 11 (c) of the same Order. " · On the basis of the above stated position of the law since the plaint was filed out of time and because the plaintiff did not state in his plaint the grounds upon which 15 II exemption from the time of limitation is claimed, the suit ought to be rejected. Accordingly the suit is hereby rejected under 0.7 r. 11 (c) of the CPC. I make no order as to costs. A.G.Mwarija

JUDGE 16/9/2010 Date: 16/9/2010 Coram: A.G. _Mwarija, J. For the Plaintiff - Present in person For the Defendant - Ms. Makondoo, State Attorney CC: Butahe . Ruling delivered ;' --.) "~./ \ ·--~--/ A. G1fl_Warija

JUDGE 16/9/2010 16