MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 24781 OF 2024 _____________________________ CLARA EDSON KACHEWA ( suing through next friend LUKRESIA SILVESTA KACHEWA)……….PLAINTIFF VERSUS TANZANIA ELECTRIC SUPPLY COMPANY……...1ST DEFENDANT ATTORNEY GENERAL……………….………………2ND DEFENDANT RULING Date of last order: 17th December 2024 Date of Ruling: 30th January 2025 MTEMBWA, J.: The Plaintiff's claim against the Defendants is for payments of Tanzanian Shillings 5,000,000/= being specific damage, Tanzanian Shillings 500,000,000/= being general damage for breach of duty of care, interest thereof at 7% from the date of judgment to the date of full payment and costs of the suit. Briefly, on 24th April 2017, the Plaintiff and her mother were at their residential house located at Tabata Mtambani within Ilala 1 Municipality in Dar es Salaam Region. While there, suddenly, the electric wires connected to one of the neighbors fell on the Plaintiff's house. Immediately thereafter, LUKRESIA SILVESTA KACHEWA, the Plaintiff’s biological mother, rushed to the 1st Defendant's office at Tabata Liwiti and reported the incident. It could appear that although the incident was so reported, the 1st Defendant never removed or disconnected the power from the fallen electric wire. On 16th September 2017, LUKRESIA SILVESTA KACHEWA again reported to the 1st Defendant, yet the fallen electrical wire was not removed. The facts reveal further that, as of October 2018, the 1st Defendant had not removed the fallen electric wire from the Plaintiff’s House. As a result, LUKRESIA SILVESTA KACHEWA sent a reminder report to the 1st Defendant and was issued with a reporting reference number ILL 10/192018 TB 1198. On 1st November 2018, the fallen electric wire caused an electric shock, thereby causing severe and permanent injuries to the Plaintiff. Immediately after the incident, while unconscious, the Plaintiff was rushed to Tabata ‘A' Clinic for medical treatment and later was transferred to Amana Regional Referral Hospital and then to Muhimbili Nationa Hospital for further medication. 2 On 12th June 2019, Amana Regional Referral Hospital filed a Compensation Form showing the state of injury, and the doctor’s observation was such that the Plaintiff may develop permanent incapacity due to brain damage, loss of memory, and unstable movement. A report from Muhimbili National Hospital revealed that the Plaintiff lost consciousness due to brain injury as a result of an electric shock. The Defendants resisted the Plaintiff's claim. In addition, they raised a preliminary objection that the suit is untenable and bad in law for being hopelessly time-barred, contrary to item 6 of Part I of the Schedule to the Law of Limitation Act, Cap 89, RE 2019 (hereafter “LLA”). When the matter came for orders on 17th December 2024, the Plaintiff was represented by Mr. Issa Chundo, assisted by Ms. Rosalia Ntiruhungwa, both learned counsels, while Ms. Lucy Kimario, the learned state attorney, symbolized the presence of the Defendants. By consent, both counsels agreed to argue the preliminary objection through written submissions. Having passed through the records, I am satisfied that both counsels adhered to the agreed schedule. 3 Launching the missiles, Ms. Grace Lupondo, the learned senior state attorney, referred this Court to the decision of Moto Matiko Maganga vs. Ophir Energy Plc and 6 Others, Civil Appeal No. 119 of 2021, Court of Appeal of Tanzania at Dodoma, where it was observed that the question of time limitation touches on the jurisdiction of the court to determine a matter before it. Based on that, she argued that the Plaintiff's claims are pegged on paragraphs 4 and 10 of the Plaint relating to specific and general damages arising from the breach of duty of care by the 1st Defendant. It was argued in addition that such breach of duty resulted in severe and permanent injury to the Plaintiff due to an electric shock that occurred on 11th November 2018. Under the circumstances, the Plaintiff was obliged to bring her claim on or before 10th November 2021. Since that was not done in a timely manner, the Plaintiff successefully applied for an extension of time to the Minister responsible. Notwithstanding the Minister's extension of time, the Plaintiff should have filed the suit on or before 9th May 2023 and not September 2024. The learned senior state attorney argued further that in view of item 6 of Part I of the schedule to the LLA, the time prescribed for filing the suit based on 4 tort is three years from the day the cause of action arose. Since the incident complained of occurred on 11th November 2018, the suit should have been filed not later than 10th November 2021. The learned senior state attorney referred this Court to section 44(1) of LLA, where it is provided that the Minister if is of the opinion that in view of the circumstances in any case, it is just and equitable so to do, he may, after consultation with the Attorney- General, by order under his hand, extend the period of limitation in respect of any suit by a period not exceeding one-half of the period of limitation prescribed by the Act. She added that the Minister may not extend the time to more than one-half of three years, which is one year and six months. As such, if reckoned from 10th November 2021, time expired on 9th May 2023. She referred this Court to section 44(2) of LLA, where it is insisted that such a later period automatically commences to run immediately upon the expiry of the period prescribed by the Act. Based on the foregoing, the learned senior state attorney considered the Minister’s stance of extending the time from 26th June 2023 to 9th October 2023 illegal and contrary to what the law requires since the time expired by 9th May 2023. She cited the case of Rajabu 5 Hassan Mfaume (The Administrator of the Estate of the Late Hija Omari Kipara vs. Permanent Secretary, Ministry of Health, Community Development, Gender, Elderly and Children & 3 Others, Civil Appeal No. 287 of 2019, Court of Appeal of Tanzania at Mtwara. The learned senior state attorney observed further that, taking into consideration of what the law requires, it is clear that since the matter at hand is founded on tort, its aggregate time limitation, including the time extended by the Minister, should not exceed four and a half years which lapsed on 9th May 2023. Since this suit was filed on 27th September 2024, it is obviously out of time. She was fortified by the decisions of Tanzania Fish Processors Ltd vs. Christopher Luhangula, Civil Appeal No. 161/1994, Court of Appeal of Tanzania at Mwanza and Dr. Ally Shabhay vs. Tanga Bohora Jamaat (1971) TLR 305. In response, the learned counsel for Plaintiff conceded to the import of section 4 of LLA that the limitation period commences from the date the right of action accrues. He, however, reminded of the exception behind the general rule in view of the case of Werema Rwabuhanga vs. Enos Mugeta, Civil Case No. 12056 of 2024, 6 where it was observed that the LLA has put certain circumstances where the limitation period is suspended. He added that the date of accrual of the right of action, which is 11th November 2018, may not always be necessarily the date of commencement of the limitation period. Recapping on what transpired, the learned counsel submitted that the Plaintiff's right of action accrued on 11th November 2018, when she suffered permanent disability resulting in unconsciousness, loss of memory, and unstable movement due to brain damage. The learned counsel further admitted to the very import of section 5 of LLA, which states that the right of action in respect of any proceeding shall accrue on the date the cause of action arises. However, when the person suffers from a disability, the right of action commences from the date when the disability ceases or upon death. He cited section 15 of LLA. Expounding further on the cited provisions, the learned counsel observed that since the Plaintiff experiences unconsciousness, loss of memory, permanent incapacity and unstable movement due to brain damage, time limitation will commence from the date when her disability ceases or upon death. As neither of the two has accrued, time has not started to run, and thus, she has the right to bring the 7 matter to Court at any time. The learned counsel further conceded to the very legal requirement that the grounds for exemption due to legal disability must be expressly shown in the Plaint. He referred this Court to paragraphs 11, 15, 19, 20 and 21 and annexures LC-5, LC-6, LC-7, and LC-9 of the Plaint, which express and signify unconsciousness, loss of memory, permanent incapacity and unstable movement. Even if the Plaint does not show the grounds for the exemption, the correct procedure is to order an amended. He cited Order VII Rule 11(c) of the Civil Procedure Code Cap 33, R.E 2019 (hereinafter “CPC”). In his final note, the learned counsel insisted that the Plaintiff is suffering from a legal disability and, thus, time can not start to run against her. He contended further that the matter was correctly filed within time, only that the Plaintiff did not expressly disclose the ground for exemption for her legal disability. He thus implored this Court to overrule the objection with costs and order an amendment of the Plaint to rectify the anomaly. In rejoinder, the learned senior state attorney reminded on the salutary principle of the law that parties are bound by their pleadings and that no party should be allowed to depart from them. To fortify, 8 the counsel referred this Court to the case of Barclays Bank (T) Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [20201 TZCA 1875 (26th November 2020) and Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11th December 2019). She contested the arguments by the Plaintiff’s counsel that paragraphs 11, 15, 19, 20, and 21 of the Plaint express the grounds of the exemption. On this, she was fortified by the decision of Ali Shabani & Others vs. Tanzania National Roads Agency (Tanroads) & Another (Civil Appeal No. 261 of 2020) [2021] TZCA 243 (10 June 2021). The learned senior state attorney insisted that the suit is time- barred, as expressly admitted by the Plaintiff’s counsel, and section 15 of the LLA can not, unfortunately, serve the day. She considered the arguments an afterthought because nothing was pleaded in the Plaint indicating legal disability as a ground for exemption. As to whether the exemption can be pegged on section 15 of LLA, the learned senior state attorney submitted that the cited section is inapplicable because the Plaintiff is suing through a next friend (her mother). The argument that time never started to run on 11th November 2018 was not pleaded in the Plaint. It can not, 9 therefore, be brought by way of submissions. She cited the case of the Registered Trustees of the Archdiocese of Dar es Salaam vs. the Chairman Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006 (Unreported), where it was observed, inter alia, that submissions are not evidence. Based on that, the learned senior state attorney implored this Court to disregard the reply submissions by the Plaintiff’s counsel and sustain the preliminary objection. Admittedly, the preliminary objection raised by the Defendants’ counsel is worth tackling. The question before me is whether it is meritorious and warrants dismissal of the suit. 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 10 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 cited rule above, the Plaintiff pleaded as follows under paragraph 22 of the Plaint and I quote in verbatim; That the cause of action arose on 11th November, 2018 when the electric wire of the 1st Defendant shocked the Plaintiff. That make the statutory time limit to sue expired hence the Plaintiff applied for extension of time to sue and granted an order of extension of period of limitation dated on 12th July, 2023. Copy of Order of extension dated on 12th July, 2023 is attached hereto and marked as annexure LC-11 and the Plaintiff shall crave leave of the Court to refer to it as part of this Plaint. In view of the above, the Plaintiff Pleaded and conceded to the very fact that the suit has 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 in view of Annexure 11 attached to the Plaint. The learned senior state attorney for the defendants is very aware of the powers of the Minister in view of section 44(1) of LLA, but he or 11 she can not extend the time to more than one-half of the original period prescribed by the law. As such, if reckoned from 11th November 2021, time expired on 9th May 2023. She 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. Before going any further, I shall examine whether the extension of time by the minister is manifestly legal. According to paragraph 10 of the Plaint, the cause of action arose on 11th November 2018 when the fallen electric wire shocked the Plaintiff. Given what has 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 Plaintiff was supposed to file her claim not later than 11th November 2021. That was not done. As a result, the Plaintiff applied and was granted an extension of time by the Minister to file her claim within the period commencing from 26th June 2023 to 9th October 2024. In 12 compliance with the Minister’s order, this suit was filed on 2nd October 2024 (the submission date). 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 shall 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 (The Administrator of the Estate of the Late Hija Omari Kipara (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 13 is made before or after the expiry of the limitation period set by the Act for the suit. 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 11th November 2021 upon expiry of the period of three years prescribed by the Act to 11th May 2023. This is because the original period prescribed by the law, which is three years, expired on 11th November 2021. Respectively, I find the Minister's order purporting to extend the one-half period commencing from 26th June 2023 to 9th October 2024 ultra vires and ineffectual. He had no powers to extend time beyond 11th May 2023. Similarly, being filed on 2nd October 2024, this suit was filed out of time if the Minister’s order of extension of time is pleaded as a ground of exemption. However, by way of submissions, the Plaintiff’s counsel relied on an exemption pegged to section 15 of the LLA. In his submissions, the learned counsel admitted to the very import of section 5 of LLA, which states that the right of action in respect of any proceeding accrues on the date the cause of action arises. However, when the person suffers from a disability, the right of 14 action commences from the date when the disability ceases or when he or she dies. He thus contended that the suit was filed within the prescribed period of time. At the outset, by such submissions, he conceded to the objection by the learned senior state attorney that the suit was filed out of time if the Minister’s order of extension of time is set as a ground of exemption. As intimated earlier by the learned senior state attorney, to which I fully subscribe, disability was not pleaded in the Plaint as a ground of exemption under section 15 of the LLA. It was, therefore, an afterthought. Indeed, section 15 of LLA needs no interpolations of any kind. It simply reveals that; If on the date on which a right of action for a suit or an application for the execution of a decree accrues, the person to whom it accrues is under a disability, the action may be brought at any time before the expiry of the period of limitation prescribed for such action computed from the date when the person ceases to be under a disability or dies, whichever event first occurs. The section above encompasses the situation where on the date when the cause of action accrues, but the person to whom the right to commence proceedings is under disability, the action may be brought at any time before the expiry of the period of limitation 15 prescribed for such action computed from the date when the person ceases to be under a disability or dies, whichever event first occurs. Unfortunately, the LLA has not defined the word “disability”. In India, under the Indian Limitation Act, disabled persons include, but are not limited to, insane, minors, and idiots. Addressing section 49 of the Limitations Act of Ireland, which is in parimateria with our section 15 of the LLA, Barron J in Rohan vs. Bord na Mona [1990] 1 IR 425,430 observed; The purpose of the provision is to save a cause of action for someone to whom it has accrued but because of a disability may be unable to pursue it. In Werema Rwabuhanga vs. Enos Mugeta (Civil Case No. 12056 of 2024) [2024] TZHC 8034 (18 September 2024), this Court had this to say; In essence, section 15 identifies a disability as a factor that can suspend the limitation period. However, for purposes of limitations of causes of action, the Law of Limitation Act of Tanzania has neither defined nor classified the term disability. Nevertheless, it is essential to note that in legal terms and in limitation laws, in particular in common law jurisdictions, a recognized disability refers to a situation where an individual is legally incapable of managing their own affairs or exercising specific legal rights, often due to reasons such as 16 minority, mental incapacity, or other circumstances endorsed by law. Conversely, where a person is entitled to institute a suit at the time from which the prescribed period is to be reckoned, is disabled ( say a minor or, insane, or an idiot), he may institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time specified in the third column of the Schedule. In other words, where such a person is, at the time from which the prescribed period is to be reckoned, affected by disabilities, he may institute the suit within the same period after the disabilities have ceased, as would otherwise have been allowed from the time so specified. Where the disability continues up to the death of that person, his legal representative may institute the suit within the same period after the death, as would otherwise have been allowed from the time so specified. Under section 15 of LLA, disability is an exemption if, at the date when the right of action accrues, the person is unable to commence proceedings. It follows, therefore, that time will be excluded to the date when the disability ceases or when the person dies. In other words, time starts to run after the date the disability 17 ceases or upon death. In which case, there can be no suing through a next friend like in the instant case because it is presumed that the disability has ceased. The legal representative will only file the matter if the person dies. In this case, the matter was filed through a next friend because the Plaintiff is facing legal disability as a result of an electric shock that damaged her brain, and thus, she can not suit on her own. That being the case, she can not rely upon or enjoy the benefit of section 15 of LLA because she has not recovered from disability. It is when she recovers from a disability that the Plaintiff can be able to file the suit in her name and not through the next friend. Since the Plaintiff is still under disability up to the date of filing the suit, time is yet to run against her. Based on the above, I agree with the learned senior state attorney that this suit has been filed outside the prescribed period. Since time limitation touches the jurisdiction of this Court, the matter can not be left unattended. Considering the import of section 3(1) of LLA, this suit is hereby dismissed with no order regarding costs. 18 I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 30th January 2025. H.S. MTEMBWA JUDGE 19