CONSTATINO NZUMI & THERESIA NZUMI v THE CRDB BANK (T) LTD & MORIS MBILINYI & HAIBE MOHAMED ABDALA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA CIVIL CASE NO. 000002006 OF 2026 CONSTATINO NZUMI .............................. COMPLAINANT / APPELLANT / APPLICANT THERESIA NZUMI .............................. COMPLAINANT / APPELLANT / APPLICANT / / PLAINTIFF PLAINTIFF VERSUS THE CRDB BANK (T) LTD .............................. RESPONDENT / DEFENDANT MORIS MBILINYI & HAIBE MOHAMED ABDALA .............................. RESPONDENT / DEFENDANT RULING MWENEMPAZI, J The plaintiffs filed a suit against the defendants, claiming against the 1st defendant the sum of Tshs. 514,808,000/= (Tanzania shillings five hundred fourteen million eight hundred thousand and eighty thousand), being a specific amount, the 1st defendant’s client collected from the tenants to whom they leased houses, Plot No. 120 Block KK with 11 rooms and Plot No. 99 Block KK with 16 rooms, after the 1st Defendant illegally sold them. Paragraph 4 of the amended plaint refers the case back to 1997, when the plaintiffs had a loan advanced to them by the 1st Defendant. In a bid to repay the same, the plaintiffs were occasioned with difficulties which made them fail to reimburse the loan as required; hence, the 1st Defendant sold their (collateral). The suit has encountered a stumbling block in the notice of preliminary Page. 1 objection, with two points. First, that the suit is time-barred; hence, this court has no jurisdiction; and second, that the case is res judicata. The 3rd defendant has also raised three points of objection, namely: one, that the plaintiff has no cause of action against the 2nd defendant per paragraph 3 of the plaint and roman one of the reliefs prayed; two, that the 2nd plaintiff has no locus standi to sue for failure to attach the letter of administration (instrument constituting the appointment); and three, that the suit is premature for failure to exhaust the pre-statutory process as required under section 13 of the Civil Procedure Code [Cap 33 R.E 2023]. As a matter of procedure, once a notice of preliminary objection has been filed in a suit, the other processes at the stage of the hearing of the suit are stayed, and the objections must be heard and determined to clear the way for the suit to proceed. The objections in this case were scheduled for hearing on 3 September 2026. It is commendable that the counsel for the plaintiff, after reviewing the objections raised, consulted with her clients and advised them, enabling her to concede, as one of the points directly touches the jurisdiction of this court in handling this matter. Thus, although there are other points of objection, the learned counsel based her consultation and advice to her client only on the point of jurisdiction. Therefore, at the hearing, Ms Neema Charles, learned advocate for the plaintiff, informed this court that they were conceding the objection raised on the point that this suit was filed way out of time and prayed for the same to be struck out without order as to costs. Counsel for the 1st defendant, Mr Baraka Mbwilo, Advocate, and Counsel for the 3rd defendant, Mr Peter Kamyalile, learned Advocate, did not oppose the submission. Both counsels for the defendants prayed that, since the objection is attached to the time limitation, Section 3(1) of the Limitation Act [Cap 89 R.E 2023] provides that the proper remedy is a dismissal order, not striking out. Mr Baraka Mbwilo added a prayer for costs. Counsel waived the item on an order for costs for the 3rd defendant, Mr Peter Kamyalile. As for the remedy of dismissing the suit, counsel relied on the cases of Roserita Kingamkono Vs. Yusufu Nyahori, Civil Appeal No. 122 of 2021 [2025] TZCA 105 (27 February 2025) and Ronlick E.L. Mchami Vs The Registered Trustees of the Evangelical Page. 2 Lutheran Church in Tanzania and another (Civil Appeal No. 171 of 2022) [2025] TZCA 614 (24 June 2025). The key holding in the cited cases is that section 3(1) of the Limitation of Limitation Act provides that any matter filed out of time should be dismissed. That position was emphatically stated in the case of Roserita Kingamkono Vs Yusuf Nyahori (supra) at page 5 that: “We subscribe to the submission of Mr Ngole that the words used in Section 3(1) of the Limitation Act, “shall be dismissed whether or not limitation has been set up as a defence”, impose a duty on the court to dismiss any matter which is time-barred. The law directs the matter to be dismissed. There is no room for striking which may lead so different outcomes”. Therefore, they insisted the suit should be dismissed and not struck out as prayed by the counsel for the plaintiff. At this point, and before pronouncing my verdict, I feel the need to justify the disposal of the case on one point, leaving other points raised in the notice of preliminary objection. The issue raised by the objection on time limit touches the jurisdiction of the court. Thus, it deserves precedence over other points, as it ranks higher among the points of objection. In Makamba Kagoma and Others v. Ubungo Farm Implements Limited and Another (Civil Appeal No. 92 of 2008) [2012] at page 12, it was held: ” The question of the court’s jurisdiction was also raised as one of the preliminary objections. Still, the learned trial judge decided to dispose of the matter on the basis of limitation. We are decidedly of the view that this was tactically wrong for three reasons. First, jurisdiction is always paramount. It is always in issue. Whenever it is raised, and where there are other objections, it must be determined first. The court must always be satisfied that it has jurisdiction before proceeding to decide anything else before it. Once it finds that it has no jurisdiction, it ends there. Secondly, in this case there was the question of limitation. As was the case here in most cases of such a nature, to decide on the issue of limitation the court is often drawn into the need to investigate some facts averred by parties, and that presupposes that the court had jurisdiction finally determines the rights of the parties, so the court purporting to do so must have jurisdiction. On the matter in the first place”. Now, whether this suit should be struck out as prayed by the plaintiff’s counsel or be Page. 3 dismissed as prayed by counsel or be dismissed as prayed by counsels for the defendants. The answer is not far. This is the case of Roserita Kingamkono v. Yusuph Nyahori (supra) and Ronlick E.K. Mchani v. The Registered Trustees of the Evangelical Lutheran Church in Tanzania and Another (supra). They both held that section 3(1) of the Limitation Act (supra) provides that any matter filed out of time should be dismissed. I therefore dismiss the plaint. As to costs, I do not accede to counsel for the 1st defendant; given the plaintiff's concession, I issue no order as to costs. It is ordered accordingly. Dated at SUMBAWANGA this 7th of September 2026 . T. M MWENEMPAZI JUDGE OF THE HIGH COURT Page. 4