AGATHA JUDGMENT 2 1 for tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA PC CIVIL APPEAL NO. 1709 OF 2024 (Originating from the decision of Geita District Court Civil Appeal No. 5824/2024 before N. R Bigirwa-SRM.) AGATHA FRANCIS---------------------------------- APPELLANT

VERSUS SIMEO PIUS--------------------------------------- RESPONDENT

JUDGMENT Date of the last order: 11 February 2025 Date of the Judgment: 14 February 2025. K. D. MHINA, J. This is an appeal against the judgment and decree of the District Court of Geita in Civil Appeal No. 25858 of 2024 that upheld the decision of Nyankumbu Primary Court in Civil Case No. 36 of 2024 and accordingly dismissed the appellant's appeal. The facts leading to the present appeal are such that; on 6 March 2024, the appellant filed a suit against the respondent at the Primary Court 1 claiming for TZS. 2,000,000/= as compensation for the food crops which the appellant claimed the respondent stole from her. While composing the judgment the trial court suo motu raised a point of law on whether the suit before it was time-barred or not. When the parties were invited to address the court on that issue, both submitted that they did not know the time limit to file that suit. In its decision dated 17 September 2024, the trial court held that the course of action arose in 2009, therefore according to paragraph 5 (a) to the schedule of the Magistrate’s Courts (Limitation of Proceedings Under Customary Law) Rules G.N No 311 of 1964 (“hereinafter to be referred to as the Rules”), the suit was time-barred. Under that law, the time limit for filing a civil suit at the Primary Court is six (6) years, thus by filing the suit in 2024, while the cause of action arose in 2009, the

appellant was out of time. Consequently, it dismissed the suit for being time-barred. Undaunted, she unsuccessfully appealed to the District Court. In upholding the Primary Court’s findings, the District Court on 23 December 2 2024, confirmed that the suit was filed at the primary court while it was time- barred and thus offended paragraph 5 (a) to the schedule of the Rules. Still dissatisfied, the appellant lodged the present second appeal challenging the concurrent findings of the trial court and the 1st appellate court on four grounds of appeal which are: i. THAT, The District Court erred in law and in fact without taking into account the exhibit ‘’KE2’’ which was not objected to by the respondent (here I attach the exhibit renamed ‘’K and ‘’N’’ to form part of this appeal) ii. THAT, The Magistrate erred in law to rule out that the Civil case No. 36/2024 was filled out of time without taking into account that the respondent was nowhere to be found, the reason which took a long time for the appellant to file the case within time limit. iii. THAT, The District Court of Geita erred in law and in fact by failing to observe that the Trial court has returned the respondent’s exhibits to the appellant, the court intended to destroy the appellant’s proceeding and evidence adduced before it, hence miscarriage of justice on part of the appellant. iv. THAT, The court erred in law

without taking into account that the appellant’s witness, Joseph Msoma who was the Mtaa Chairman failed to appear in court to testify about 3 exhibits ‘’KE1’’ and ‘’KE2’’, however, the witness Enos Cherehani adduced uncompleted evidence concerning exhibits ‘’KE1’’ and ‘’KE2’’ hence miscarriage of justice on part of the appellant. The appeal was argued orally and both appeared in person, unrepresented. At the hearing despite the court reminding the parties of the grounds of appeal which they were supposed to argue for and against, but this is what they submitted. On her side, the appellant submitted as follows at the trial, the exhibits were removed from the court file and returned to her and one of the exhibits was the document indicating that the respondent wanted to murder her. Further, she stated the respondent escaped and was nowhere to be found, therefore she failed to file the case within time. The appellant also raised the issue that the respondent sold her properties and whenever she harvested, the respondent sold the produce. Also, she prayed for her relatives to be called because the respondent claimed to be her son while he was the son of her younger sister. Therefore, 4 he should return to his homestead. Also, they wanted to sell her plot to the church. In response, the respondent submitted that previously, the case was dismissed for lack of evidence in 2019 but

there was no evidence. Then the appellant claimed he bribed, and after that, the appellant disappeared. After five years, the appellant returned to Geita from Arusha region claiming that her plot was invaded while in fact the plot was never invaded and the appellant was never beaten by anyone. In rejoinder, the appellant stated that she never filed any case in 2019 as the period of 2018 and 2019 she was at Dodoma. She returned to Geita last year. In the determination of the appeal, I will start with the 2nd ground of appeal regarding the limitation of the appellant to file the civil suit at the Primary Court, as it touches the issue of jurisdiction. At the trial, while composing the judgment, the trial magistrate discovered that there was a controversy on the issue of limitation. The issue raised and canvassed was whether the suit was filed within time. 5 The trial court placed the issue on record and on 17 September 2024, invited the parties to address the court. On her side, the appellant stated that the claims arose in 2010 when she entered an agreement with the respondent as compensation after the respondent stole her properties in 2009. Further, she did not know the time limit for filing a suit. On his side, the respondent stated that he did not know the time limit for filing a suit. In its decision dated 17 September 2024, the trial court found that the course of action

arose in 2009 while the suit was filed in 2024. Therefore, it dismissed the suit for being time-barred as per paragraph 5 (a) to the schedule of the Magistrate’s Courts (Limitation of Proceedings Under Customary Law) Rules G.N No 311 of 1964, which provides a time of six (6) years to file the civil suit at the Primary Court. On the same reasoning, the first appellate Court upheld and confirmed the trial court’s decision. From the above information from the records of the two courts below, it is clear that the trial court rightly raised the issue of limitation suo motu after discovering the controversy. As alluded to earlier, the issue of time 6 limitation goes to the jurisdiction of the court, thus it can be raised at any stage as it is a bedrock on which the court's authority and competence to entertain and decide matters rests. This is the position of law as held in many cases by the Court of Appeal and this Court. In Yusuf Khamis Hamza vs. Juma Ali Abdallah, Civil Appeal No. 25 of 2020 (Tanzlii), the Court of Appeal held that:- “Of course, we are alive with the settled position of the law that time limitation goes to the jurisdictional issue of the court and that it can be raised at any time, even at the appellate stage by the court, but for it to be noted and raised it would require material evidence to be placed before the Court”. Further, after raising the matter of

controversy suo motu, the parties were afforded the right to be heard. That was very important because one; for the issue raised suo motu to be noted and raised it requires evidence/ facts to be placed before the court raising it for it to hear the parties. See Kumbwandumi Ndemfoo Ndossi vs. Mtei Bus Services Ltd, Civil Appeal No. 257 of 2018 (Tanzlii) it was held that; "... issue raised should be placed on record, and parties must be given an opportunity to be heard by the Court". 7 Two, the right to be heard is not only a constitutional right but also a rule of natural justice. On this, the Court of Appeal in Mwajuma Bakari (Administratrix of the Estate of the Late Bakari Mohamed) vs. Julita Semgeni and another, Civil Appeal No. 71 of 2022 (Tanzlii), held that; "Giving a party a sufficient opportunity to be heard is consistent with the principles of fair hearing as envisaged under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time. The said article directs that, when rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to among others, a fair and full hearing". Therefore, the two courts below rightly handled the procedure of raising a matter suo motu and affording the parties the right to be heard. Regarding the holding, in which the two courts below

found that the appellant’s suit was time-barred, this should not detain me long. As per the records, the appellant filed the civil suit in 2024 for the course of action that arose in 2009. On the other hand, the law of limitation applicable for civil suits in relation to contracts in primary court i.e Magistrate’s Courts (Limitation of 8 Proceedings Under Customary Law) Rules G.N No 311 of 1964, under paragraph 5 of the schedule provides that; “Proceedings for damages for breach of contract or to enforcement of contracts, other than contracts of or relating to marriage, separation or divorce (a) If the contract is in writing -6 years (b) If the contract is not in writing years”. The narration above indicates that when the appellate filed her case in 2024, the suit was time-barred. From 2009 to 2024 is about 15 years while the appellant was allowed to file her case within six (6) years from the date of course of action. In the grounds of appeal and submission, the appellant raised issues that; one, she did not know the time limit for filing a suit and two, the respondent was nowhere to be found. As per the law, the two issues raised are devoid of merits because One, is because of the legal maxim that ignorance of law excuses not (ignorantia juris non excusat), which implies that a person cannot claim to be unaware of a law and escape liability for violating it merely by

being 9 unaware of its content. This is also a position in in Yusuph Masalu Jiduvi and three others vs. the Republic, Criminal Application No. 112/03 of 2019, (Tanzlii), where the Court of Appeal held that; “It is a trite position that ignorance of the law does not constitute good cause”. Therefore, the plea of ignorance pleaded by the appellant, could not shield her from the failure to file the suit beyond the prescribed time limit. Two, there is no law which prohibits a party from filing a case if the other opponent escapes and his whereabouts remain unknown. This is because there are procedures of service/ notifications and court orders to notify a party of the presence of the suit after the suit has been filed. From the above analysis, the court was correct in dismissing the suit for being time-barred. Equally, the 1st appellate court also was correct in upholding the trial court’s decision that the suit was time barred. Thus, the reason advanced by the appellant in the 2nd ground of appeal is devoid of merits and I proceed to dismiss it. Since the 2nd ground of appeal disposed of the appeal, I don’t see the necessity of determining the remaining grounds of appeal because; 10 One, the remaining grounds will not change the outcome of the decision. This is because the 2nd ground which touches the issue of jurisdiction of the Primary Court is a decisive ground in this appeal.

And the law is clear when the Court in determining the appeal may address the decisive ground only. See Malmo Montage Konsult AB Tanzania Branch vs. Margret Gama, Civil Appeal No.86 of 2001 (unreported). Two, the remaining ground raised complaints on the merits of the application while the matter at the primary court was disposed of based on the ground of limitation. Therefore, it was improper to raise in this appeal the grounds on issues which were canvassed and determined by the lower court. Flowing from above, this appeal is dismissed for being devoid of merits. Further, parties to this appeal are relatives, thus I order no costs. It is so ordered. K. D. MHINA

JUDGE 14/02/2025 11 Court: The right to appeal is fully explained to the parties. K. D. MHINA

JUDGE 14/02/2025 12 13