CIVIL APPEAL NO 183 OF 2022 FELICIAN ITEMBA VS THE BORD OF TRUSTEES OF ELCT EASTERN AND COASTAL DIOCES

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. 3.A.. MAIGE. J.A., And MURUKE, J.A.) CIVIL APPEAL NO. 183 OF 2022 FELICIAN B, ITEMBA............................................... ................. APPELLANT VERSUS THE BOARD OF TRUSTEES OF ELCT-EASTERN AND COASTAL DIOCES...........................................................RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, at Dar es Salaam) (Kakolaki. J.l dated the 18th day of February, 2022 in Civil Case No. 22 of 2021 JUDGMENT OF THE COURT n th & 27th March 2025 MURUKE. 3.A.: The appellant, Felician B. Itemba, entered into a consultancy agreement with the respondent, The Board of Trustee of ELCT- Eastern and Coastal Diocese, on 1st April 2013, for preparation of a feasibility study for Kunduchi Trinity Towers project at a contract price of TZS. 300,000,000. The agreement provided that the contract price would be paid in four equal quarterly installments and completed within one year from the execution of the contract. The appellant completed the feasibility study and submitted the final report in April 2013. However, the respondent only paid TZS. 57,000,000 leaving an outstaying balance of TZS. 242,200,000. Despite repeated demands, the respondent failed to pay the balance. In December 2018, the respondent formally informed the appellant that it would not honor the outstanding payments, reason being lack of priority for the project. Formal reply by the respondent triggered filling of a suit on 25th January 2021, seeking payments of outstanding amount, general damages, and interest. Respondent apart from filling WSD raised notice of preliminary objection that the claim was time barred as the six years limitation period expired on 22nd November 2020. The High Court upheld the objection and dismissed the suit. Being dissatisfied, the appellant filed the present appeal raising three ground of appeal reflected in the memorandum of appeal filed on 12th May 2022. Both parties filed written submissions in support of their case in terms of Rule 106 of Court of Appeal Rules, 2009. At the hearing of the appeal, the appellant was present in person not represented while the respondent was represented by Ms. Mutabuzi learned counsel. At the outset, the respondent's counsel informed the Court that the respondent is conceding to the appeal, thus withdrawing the submission earlier filed, insisting that the case be heard on merit, prayer that was welcomed by the appellant. Our starting point to lay foundation for our decision is well known case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. [1969] E.A 696 at page 701 where Sir Charles Newbold, P. states as follows:- " A Preliminary Objection is in the nature o f what used to be a demurrer. It raises a pure point o f iaw which is argued on the assumption that ai! the facts pleaded by the other sides are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f judicial discretion". From the holding above, it is clear to us that, a Preliminary Objection should be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate facts, such an issue cannot be raised as preliminary objection on point of law. The Court insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as preliminary objections only those points that are pure points of law, unstained by facts or evidence, especially disputed points of facts as evidence. The objector should not condescend to the affidavits or other disputed documents accompanying the pleadings to support the objection such as exhibits. Referring to the above observation and in line with Mukisa Biscuit (Supra) this Court in Soitsambu Village Council v. Tanzania Breweries Ltd and Tanzania Conservation Limited, Civil Appeal No. 105 of 2011 [2012] TZCA 255 (17 May, 2012 TanzLII) stated as follows: "A Preliminary Objection should be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a Court needs to investigate facts, such an issue cannot be raised as a Preliminary Objection on a point o f law. The Court must therefore insist on the adoption o f the proper procedure for entertaining applications for preliminary objections. It will treat as preliminary objections only those points that are pure law, un ascertained by facts or evidence, especially disputed points o f facts or evidence. The objector should not condescend to the affidavits or other documents accompanying the pleadings to support the objection such as exhibits". The above being the trite law regarding what would be the nature of a preliminary objection raised in the High Court that, thecontention that the suit was time barred could not have been ascertained without evidence in the circumstances of this case. In upholding the preliminary objection the trial court Judge grounded his ruling at page 163 of the record that: "Again this court finds there is no proof by the plaintiff that, the three letters allegedly written by the plaintiff to the defendant making reference to the claimed undated letter from the Defendant o f December, 2018 were served to the defendant as a proof that there was live communication between the two parties. It is so found as one would expect to find them bearing official receipt stamp o f the defendant or exhibited by dispatch book duly signed by the defendant, which proof undoubtedly is missing in this matter. In absence o f such evidence to exhibit that there was communication, discussions, negotiations and/or promises from the defendant, implying that, there existed continued contractual relationship between the parties to the extent o f renewing the initially expired cause o f action which expired on 22/11/2014, when the one year o f payment o f the due contract price ended, and since this suit was filed on 21/01/2021 exactly two months and three (3) days after expiry o f the six (6) years in which the plaintiff was supposed to file this suit, I am satisfied that this suit was filed outside the prescribed period o f time. The issue is therefore answered in affirmative". The evidence to exhibit that there was communications, discussion, negotiations and/or promise from the defendant, implying that, there existed continued contractual relationship between the parties to the extent of renewing the initially expired cause of action expired on 22/11/2014, were not tendered at the trial Court. The above are pertinent questions because they make the objection not legally allowable in the eyes of the law. The raised preliminary objection is not free from facts or evidence calling for proof. Looking at the pleadings, as they are, it was not possible for the trial court to adjudicate upon whether the suit was time barred or not. It should have been dealt with at the end, and not at the beginning of the trial. An objection whose disposal requires proving or disproving of facts or evidence ceases to be a preliminary point of law. Consequently, exercising our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141, we nullify the proceedings and the decision of the High Court which dismissed the appellant's suit and make an order that hearing of Civil Case No. 22 of 2021 at the stage reached before hearing of preliminary objections should proceed accordingly. It is so ordered. DATED at DAR ES SALAAM this 26th day of March, 2025. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2025 in the presence of Ms. Joani Mwesigwa, learned counsel for the respondent and also holding brief for Ms. Fauzia Akonaay, learned counsel for the appellant; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL