CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 14747 OF 2024 (Arising from the Judgment and Decree of the Resident Magistrate’s Court of Dar es Salaam at Kisutu (Hon. R.M. Mbuya, PRM) in Civil Case No. 65 of 2020 dated 12th February 2024) _____________________________ ALLIANCE INSURANCE CORPORATION LTD…………….APPELLANT VERSUS MTUNZI SULEIMAN DAMUZY………..…..……….…1ST RESPONDENT MOHAMED TRANS LIMITED……………….………..2ND RESPONDENT SAMWELI RAMADHANI SHABANI……..…………..3RD RESPONDENT JUDGEMENT Date of last order: 17th December 2024 Date of Judgement: 12th March 2025 MTEMBWA, J.: This Appeal stems from the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Civil Case No. 65 of 2020. The gist of the complaint originates from a tragic motor vehicle accident that occurred on 26th July 2009 along Korogwe-Segera area. The facts reveal that on the fateful date, the 1st Respondent boarded a passenger bus, make Scania registered as T808 AQM owned by the 2nd Respondent, from Arusha to Dar es Salaam. The same was being driven by the 3rd Respondent. 1 As further discerned from the pleadings, upon reaching Korogwe- Segera area, the passenger bus collided with a truck and trailer, resulting in the unfortunate twenty-eight deaths and many other seriously injured passengers. The 1st Respondent was one of the seriously wounded passengers. The untold story is that after the accident, the 1st Respodent was mistakenly presumed dead and placed in the mortuary at Magunga District Hospital. However, it was later discovered that he was still alive. He was then transferred to Bombo Hospital in Tanga and, subsequently, to Muhimbili National Hospital in Dar es Salaam for medication. Upon medical advice, he sought further treatment in India, where he travelled twice in 2010 and 2011. According to the medical reports from Indraprastha Apollo Hospital in New Delhi, the 1st Respodent sustained 45% permanent disability as a result of the accident. Following the accident, the 1st Respondent claimed for a refund of the costs incurred during the trips, amounting to Indian Rupees 1,001,061.8, approximately Tanzanian shillings 39,087,465.60/=; USD 2,668.08, approximately Tanzanian Shillings 6,162,464.00/= for air travel; Tanzanian shillings 1,850,000.00 for the loss of personal property during the accident and Payment of Tanzanian shillings 80,883,000/= for 2 compensation for the disability, general damages for the pain, loss of expectation of good health and loss of future earnings. Having evaluated the evidence presented during hearing, the trial Court resolved in favour of the 1st Respondent. Dissatisfied, the Appellant laid before this Court the following grounds of appeal; 1. The Trial Magistrate made a factual and legal error by failing to determine that the suit was time-barred in terms of Section 44 of the Law of Limitation Act (Cap 89 R.D. 2019). 2. The Trial Magistrate erred in fact and law by shifting liability regarding the motor accident to the Appellant in the absence of privity of contract or other legal relationship between the Appellant and the 1st Respondent. 3. The Trial Magistrate erred in law and fact by failing to correctly apply the insurance principle of indemnity by awarding the 1st Respondent specific damages, to wit transport costs of USD 5,780.00, which were not pleaded nor proved; and general damages not founded on the said principle of indemnity. IN THE ALTENATIVE 4. The Trial Magistrate erred in fact and law by failing to consider that the 1st Respondent was not a third party but rather a passenger in the fateful vehicle, thus falling under the policy limitation stated in the Exhibit - DI. When the matter came for orders on 17th December 2024, the Appellant was represented by Ms. Norah Marah, the learned counsel, while Mr. Masuna G. Kunju represented the 1st Respondent. The 2nd 3 and 3rd Respondents were not present. By consent, the parties agreed to argue this appeal by way of written submissions. Addressing the first ground of appeal, Dr. Alex Thomas Nguruma submitted that the trial Court erred factually and legally by failing to recognize that the suit was time-barred given the import of section 44 of the LLA. He contended that the Law of Limitation Act has been enacted purposely to establish the time limits for legal proceedings. The essence of this law is to provide certainty and finality in legal matters by preventing the indefinite pursuit of claims. It further balances the parties' interests in that the one claiming should not delay in bringing a claim, and the defendant should not face the threat of legal action indefinitely. He referred this Court to the decision of Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021] TZCA 202 (17 May 2021), which referred C. K. Takwani, who wrote in CIVIL PROCEDURE, With Limitation Act, 1963, 7th Edition, Eastern Book Company. Dr. Nguruma also referred this Court to the case of John Cornel vs. A. Grevo (T) Ltd, Civil Case No. 70 of 1998 (unreported), which was quoted with approval in Barclays Bank Tanzania Limited (supra). In this case, the Court observed that the 4 Law of Limitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those caught in its web. Based on that, the learned counsel observed that it would be inequitable if the Court allows one party to a tortious matter to disregard time in instituting a complaint against the other party. The learned counsel argued further that the motor vehicle accident in question occurred on 26th July 2012. As this is a suit founded in tort, it falls under a three (3) year limitation period, as per Part 1, Item 6 of the First Schedule of the LLA. The suit was initiated by the 1st Respondent on 21st February 2020, well beyond the expiration of the prescribed three (3) year limitation period. Although the 1st Respondent claimed that the Minister extended the time for filing the suit under the authority granted by Section 44(1) of the LLA, it is crucial to note that any extension granted by the Minister must not exceed “one half of the period of limitation prescribed” for such a suit. He was fortified by the decision of Rajabu Hassan Mfaume vs. Permanent Secretary Ministry of Health Community Development, Gender, Elderly and Children & 3 Others, Civil Appeal No. 287 of 2019. Stretching further, Dr. Nguruma observed that the original three-year limitation period expired on 25th July 2015. Therefore, the 5 commencement of the extension period, as authorized by the Minister, would begin immediately thereafter. Given that the Minister is allowed to extend the period by no more than one and a half years, the extended period would have concluded by January 2017. Thus, the suit filed on 21st February 2020 was initiated six (6) years after the expiration of the extended period. This substantial delay renders the suit time-barred, and as such, it should have been dismissed by the trial Court. He cited the case of Stephen Masato Wasira vs. Joseph Sinde Warioba and the Attorney General [1999] TLR 334. In this case, the leave to serve a notice of appeal out of time was dismissed due to the lapse of the limitation period. The Court of Appeal emphasized that under Section 3(1) of the Law of Limitation Act 1971, the High Court has only the power to dismiss a time-barred application, not to strike it out. He added that under the circumstances, given the import of section 3 of the LLA, the proceeding instituted after the prescribed period must be dismissed. To bolster his argument, he cited the cases of CI Group Marketing Solution vs. Sijaona Koba (Civil Appeal No. 18 of 2021) [2023] TZCA 17626 (8 September 2023) and Hashim vs. Minister for Industry and Trade and Others, Civil Appeal No. 27 of 2003 (unreported). 6 Based on the foregoing arguments and cited authorities, Dr. Nguruma implored this Court to rectify the lower court's error by quashing and setting aside the judgment and decree giving rise to this Appeal. In response to the first ground of appeal on behalf of the 1st Respondent, Mr. Mashaka Ngole argued that the decision of the Minister's request to extend the period was a subject of determination in Misc. Civil Application No. 349 of 2021, and this Court is fanctus-officio to the finding of this Court in that Application. He added that the Appellant is attempting to circumvent the findings of the Court by inviting this Court to come out with its decision on the issue of the extension of time by the minister. He contended that the minister’s decision was apparent and that the Respondent should lodge the suit within one and a half years, starting on 22nd February 2019. It needed no interpolations of any kind. The complaint by the Appellant that the Minister has extended time beyond the power cannot be entertained by this court as the High Court confirmed the said decision by dismissing the Judicial review application. He thus invited this Court to be guided by the same decision. In his final analysis, Mr. Ngole invited this Court to disregard the misplaced argument that this suit was filed out of time only because the 7 time extended by the Minister began to run on a date other than the expiry date of the period of limitation provided by the law. Close to that, he argued that neither the trial court nor the Respondent would have the power to invalidate a clear decision of the Minister extending time to lodge the suit. Lastly, he submitted that the Minister’s decision to extend time for the 1st Respondent to lodge a suit can not be corrected by the High Court in this Appeal where neither the Minister nor the Attorney General is a part. Having carefully considered the parties' rival arguments, the question would be whether the first ground of appeal is meritorious. In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision and that it may coincide with the trial Court or may be different altogether. While guided by the above principle, it is also a trite law that whoever alleges the existence of any fact bears the duty to prove the same. This principle is gathered from sections 110, 112, and 115 of the Evidence Act, Cap 6 RE 2022 8 and judicial precedents, including Manager NBC Tarime vs. Enock M. Chacha (1993) TLR 228. According to Order VII Rule 6 of the CPC where the suit is instituted after the expiration of the period prescribed by the law of limitation, the Plaint shall show the ground upon which exemption from such law is claimed. In Fortunatus Lwanyantika Masha & Another vs. Claver Woshi Limited (Civil Appeal No. 144 of 2019) [2022] TZCA 433 (18th July 2022), quoting with approval the case of M/ P & International Ltd vs. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020, the Court, having considered the applicability of the cited law, had this to say; To bring into play exemption under Order VII Rule 6 of the CPC, the Plaintiff must state in the Plaint that his suit is time barred and state facts showing the grounds upon which he relies to exempt him from limitation. In compliance with the law above, the 1st Respondent pleaded and conceded to the very fact that the suit had been instituted after the expiration of the period prescribed by the law of limitation. The ground upon which exemption from such law is claimed is the extension of time granted by the Minister responsible for constitutional and legal affairs attached to the Plaint. Dr. Nguruma is very much aware of the powers of 9 the Minister in view of section 44(1) of LLA. Still, he contended that such powers are never endless because he can not extend the time to more than one-half of the original period prescribed by the law. As such, if reckoned from 26th July 2009, the original period expired on 26th July 2012. He also referred this Court to section 44(2) of LLA, which stipulates that such a later period automatically commences to run immediately upon the expiry of the original period prescribed by the law. In that respect, the Minister had no mandate to extend the period of time to more than four years and six months commencing from 26th July 2009. On his part, Mr. Ngole did not find purchase of the argument that the suit was filed out of time and that the Minister’s extension of time was unjustifiably illegal as it offended section 44(1) of LLA. He argued further that the decision of the Minister's request to extend the period was a subject of determination by this Court in Misc. Civil Application No. 349 of 2021, and this Court is fanctus-officio to the finding of this Court in that Application. Close to that, he submitted that neither the trial court nor the Appellant would have the power to invalidate a clear decision of the Minister extending time to lodge the suit. Lastly, he submitted that this Court can not correct the Minister’s decision 10 to extend time at this stage where neither the Minister nor the Attorney General is a part. Before going any further, I shall examine whether the Minister's extension of time is manifestly legal. However, I should first consider whether this Court is functus officio to its decision in Misc. Civil Application No. 349 of 2021 as alleged by Mr. Ngole. Indeed, I went through the case of Alliance Insurance Corporation Ltd vs Hon. Minister for Constitutional and Legal Affairs & 2 Others (349 of 2021) [2022] TZHC 11781 (15 July 2022) and noted that the Appellant herein filed an Application to this Court for extension of time to apply for leave to apply for writ of certiorari against an order of the Hon. Minister for Constitutional and Legal Affairs, dated 22nd February 2019. In a particular order, the Minister granted an extension of time for the 1st Respondent to commence a suit against the Appellant and two others. The Application was by way of chamber summons made under section 14(1) and (2) of the LLA. On 15th July 2022, this Court (Hon. Mango, J) dismissed the Application for failure by the Appellant to account for all periods of delay. In the circumstances, I disagree with Mr. Ngole that the Minister's power to extend time was a subject of determination in Misc. 11 Civil Application No. 349 of 2021. Even for the sake of argument that it was, the Application itself was not an Application for judicial review. It was an Application for an extension of time to file leave for judicial review, which was dismissed for failure to account for the days of delay. Similarly, therefore, nothing was issued by this Court regarding the minister's powers, which would have been posed as a bar, thereby restricting this Court from re-attending its earlier decision. In the premises, I consider Mr. Ngole’s submissions wanting of merit. That said, I will consider whether the suit before the trial Court was filed out of time or whether the minister’s extension of time was unjustifiably illegal. According to the record, the accident giving rise to this appeal happened on 26th July 2009. Given what had been pleaded in the Plaint and the prayer clause, the claim falls under tort. In view of item 6 of part I of the Schedule to LLA, the period of time prescribed by the law for the commencement of tortious claims is three years, reckoned from the day when the cause of action arose. Mathematically, therefore, the 1st Respondent was supposed to file his claim not later than 26th July 2012. That was not done. As a result, the Plaintiff applied for and was granted an extension of time by the Minister to file his claim within the period commencing 22nd February 2019 under section 44(1) of the LLA. In 12 compliance with the Minister’s order, this suit was filed on 21st February 2020. It must be noted that, in view of section 44(2) of LLA, where the minister so grants an extension of time in relation to any suit, the provisions of the law apply to such suit as if references to the period of limitation were references to the aggregate of the period of limitation prescribed for such suit and the period specified in such order, such later period commencing to run immediately upon the expiry of the period prescribed by this Act. Simply put, the one-half period or such later period granted by the Minister commences to run immediately after the expiry of the original period prescribed by the law. It does not matter whether the minister extends the time before or after the expiry of such original period. That means the suit being founded on tort, the aggregate period (original period prescribed by the law and the one-half period) is four and half years. In Rajabu Hassan Mfaume (Supra), the Court noted; Secondly and more importantly, subsection (2) stipulates in clear terms that the period of extension so granted must commence to run immediately upon the expiry of the period prescribed by this Act. It does not matter whether the grant is made before or after the expiry of the limitation period set by the Act for the suit. 13 In the circumstance, I am of the settled mind that the Minister's extension of the limitation period by one and a half years must be deemed to have commenced on 26th July 2012 upon expiry of the period of three years prescribed by the Act to 26th January 2014. This is because the original period prescribed by the law, which is three years, expired on 26th July 2012. Respectively, I find the Minister's order purporting to extend the one-half period commencing from 22nd February 2019 ultra vires and ineffectual. He had no powers to extend time beyond 26th January 2014. Again, in Rajabu Hassan Mfaume (supra), the Court observed that; ...the minister had powers under section 44 (1) of the Act to extend a limitation period by a period not exceeding one-half of the prescribed period of such suit. However, in terms of section 44 (2) of the Act, the period extended by the minister, whether so extended before or after the prescribed period had elapsed, must commence to run immediately upon expiry of the period prescribed by the Act. By way of emphasis, we wish to restate, with approval, what the High Court held in Seiemani Mohamed Mtoni (supra) that the minister has no power to extend the period of limitation prescribed by the Act for a suit where the allowable period of one-half of the said period of limitation set by the Act has already elapsed. 14 Since I have already resolved that the Minister's order purporting to extend the one-half period commencing from 22nd February 2019 was ultra vires and ineffectual, it follows that the extension was nothing and useless before the eyes of the law. It could not enable the 1st Respondent to file the suit before the trial Court on 21st February 2020, purportedly under the auspice of the minister’s order. Had the trial Court directed its mind to the law, it could have sustained the preliminary objection raised initially by the Appellant on time limitation and dismissed the suit under section 3(1) of the LLA. It suffices to note that the suit was filed out of time before the trial Court. Mr. Ngole vigorously argued that this Court has no mandate to question or correct the Minister’s order of extension of time at this stage, even if it was ultra vires. His argument was based on the fact that the Minister and the Attorney General are not parties to this appeal. With respect, I find the argument manifestly flawed. If I can borrow the experience in Rajabu Hassan Mfaume (supra), the Minister for Constitutional and Legal Affairs was not a part to the proceedings. However, this Court still determined the objection in Civil Case No. 1 of 2019 in the High Court of Tanzania at Mtwara and the subsequent Civil Appeal No. 287 of 2019 in the Court of Appeal of Tanzania at Mtwara. 15 Surprisingly, the Attorney General, represented by the Solicitor General, supported the objection. From such experience, I don’t think if this Court should barely sleep on the illegalities simply because the responsible minister and Attorney General are not parties to this Appeal. In the upshot, I find the first ground of appeal meritorious and proceed to allow it. Since time limitation touches the jurisdiction of the Court, I find it too academic to address the remaining grounds of appeal. In the premises, the proceedings and the resultant Judgement and Decree of the trial Court are hereby quashed and set aside. Considering the circumstances, there will be no order as to costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 12th March 2025. H.S. MTEMBWA JUDGE 16