Civil Case 6 of 2023 Ruling Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUM BAWAN GA CIVIL CASE NO. 6 OF 2023 LIMI LUCHOMA............... ....... ........... ........... PLAINTIFF

VERSUS REGIONAL POLICE COMMANDER KATAVI........... 1st DEFENDANT

THE PERMANENT SECRETARY MINISTRY OF HOME AFFAIRS............................. ^DEFENDANT THE ATTORNEY GENERAL........ . .............h............ 3rd DEFENDANT

RULING id'July& 2d August, 2024 // MRISHA, J. The plaintiff Limi Luchome sued the\defendants namely Regional Police Commander of Katavi, The Permanent Secretary Ministry of Home Affairs and The Attorney General and. claimed for the following relief:- J -■ • :1 iy: , i. Payment of a sum of Tshs. 215,813,000/= as the compensation of her choppedoffright hand. ii. Payment of sum of USD 1066 as annua! income to a middle economic country citizen x Tshs. 2300/= @ USD equivalent to Tshs. 2,451,800/= i @ day x 35 years expected to live herein after equal to Tshs. 85,813,000/= as a loss of year earning. Hi. Caring of her children on giving them education for their Mother is no longer able to facilitate them on educating them. iv. Buy her a modern artificial hand. v. Payment of a general damages. y 3-y.- vi. Payment of a sum Tshs. 5,000,000/= as loss ofamenities. A,... vii. Any other relief that the court may deem fit to grant. The defendants refuted the claim and raised the.preliminary objection on points > .s, tf.J-f.- ,s of law to the effect that: '■'i- /,i„> ft S.j V.. ' ' 1. This suit is hopelessly time barred. By parties' consent, the preliminary objection was heard by way of written submissions. The plaintiff's submission was drawn and filed by Mr. Gadiel Sindamenyaz learned Advocate while the on by the defendants'/ was drawn and filed by Mr. Mjahidi Kamugfcha,. learned State

Attorney. Both parties complied with the scheduled order of the court by filing their respective written submissions oh time. 2 In support of the preliminary objection, the learned State Attorney argued that, in terms of paragraphs 5 and 7 of the plaint, the plaintiff averred that the cause of action in this matter arose from negligence. A suit founded on tort is required to be filed within three (3) years. This means the limitation period for filing a claim based on tort of negligence which apparently occurred on 14th July, 2013 and lapsed on 14th July, 2015. This indeed is the position of the law stipulated under item 6 of the First Scheduled to the Law of LimitationAct [Cap 89 R.E. 2019]. He further submitted that, the consequence of filing a case out of time is that the court will dismiss the case with costs. To buttress his submission he cited the :: • <•?<.'J.- '•■'L. case of Barclays Bank Tanzania Limited v Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016 CAT (unreported), the Court of Appeal held that: "However unfortunate it may be from the plaintiff, the taw of limitation, knows no sympathy or equity. It is a merciless sword that cuts across a deep into all those who get caught in its web." He wound up his submission by referring Order VII, Rule 6 of the Civil Procedure Code [Cap 33 R.E. 2019] and submitted that the plaintiff did not plead in her 3 plaint the

grounds upon which she claims exceptional circumstances from the law of Limitation. On the opposite side, the learned advocate for plaintiff asserted that the preliminary objection raised by the defendants is baseless. The defendants' argument was based on item 6 of the First Schedule of the Law of Limitation, but for his opinion, that is a critically wrong assertion.. Heargued ttiat the offence was committed on 14th July, 2015; the investigation was conducted whereby six accused persons were arrested and arraigned before the Court of law for attempted murder. ' r,*•'’£■ ! He added that on 23rd October, 2019 the five accused persons were convicted and sentenced to life imprisonment. He added that, it was impossible for him to institute a civil case in a Court of law on the same parties while the criminal case was still pending. After being convicted, the plaintiff manage to gather evidence on negligence of the Police Officer in-charge of Criminal Investigation of Katavi Region for failure to perform his duty of protecting the civilians and their properties. Moreover, Mr. Sindamenya added there were sixty days of appeal after judgment delivered which ended on 23rd December, 2019. Again, he added that it is a 4 cardinal principle for all murder cases that the decision of the trial court must be approved by the Court of Appeal. Thus, he argued that the time for instituting a suit

of tort against the defendants is still open. More so, he argued that on 8th February, 2021 they issued a ninety (90) days' notice to the defendants, therefore, counting from the time of judgment to the time he instituted the suit, it means the suit was filed within time. As if that is not enough, Mr. Sindamenya further implored this court to be bound by the provisions of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania and avoid being tied up with technicalities which denies substantive justice. To . buttress his position, he cited the cases of Khaki Camera Prix (1970) HCD 235 and South British Insurance Ltd v Mohamed Taibje (1973) E.A.210.Finally, he prayed to this court to dismiss the preliminary objection with: costs and proceed to hear and determine the matter on merits. J In brief rejoinder, the learned State Attorney reiterated on what he submitted on submission in chief. He argued that the cause of action arose run on 14th July, 2015, for suit based on tort, the period of three years lapsed on 14th July, 2018. Thus, the plaintiff was required to file his suit before three years expired. 5 Essentially, the plaintiff was required to apply for extension of time to the Cabinet Minister for Justice, before instituting the case, this is provided under section 44 of the Law of Limitation Act. Regarding Article 107A (2) of the United Republic Tanzania

Constitution, the learned State Attorney submitted that the issue of time limit under Item 6 of Part I of Schedule to the Law of Limitation Act, is not technicalities. He distinguished the cases cited by the learned advocate, and argued that the plaintiff filed the suit out of time without being granted extension of time. It is undisputed fact that this is a tort case, and the plaintiff filed a suit claiming compensation from the defendants of such amount of Tshs 215,813,000/= for being chopped off her/ right hand due to negligence of the 1st Defendant. That being the case, the issue/is . whether the suit instituted by the plaintiff is time barred, 'f; a/ This is indeed the center of contention between the parties in this preliminary objection on point of law where the defendants contend that the suit is hopelessly time barred. On the other side, the plaintiff has contended that the preliminary objection is baseless and the suit is within time. 6 The learned counsels for defendants and the plaintiff are in agreement that this suit is based on a tort of negligence and is time limit to file the same is three years. This indeed is the position of the law under item 6 of'Part I of the Schedule to the Law of Limitation Act. However, the issue is whether the plaintiff's claim is time barred. The answer to the issue is provided in the plaintiff's plaint. The plaint Under paragraphs

five and seven reads as follows: The Plaintiff claim against . the Defendant's is for a total of Tshs. 215,813,000/= being the Compensation for the material injury of L1MI LUCHOMA'S chopped of right hand bn14/7/2015 the act which left her with a permanent disability." % Again, in paragraph 7 of the plaint the plaintiff has stated that: "7. That, as it can be evidencedon records in a copy of Judgment that a monthor.more before the calamity, the police officer in charge was informed ofgroup of people hunting for Limi, yet he did not play his role attracting an action of negligence which he committed by not conforming with his duty of care "Kulinda raia na maiizao"hence did not take trouble to protect tier and the Albino body parts hunter later on executed their mission and her hand was chopped off. " It is unequivocal that the plaintiff's claim against the defendant is for compensation for negligence of failure to protect her from not been chopped off 7 her hand. Moreover, the plaint reveals that the cause of action arose on 14th July, 2015 whereas the suit was instituted on 17th July, 2023 which indicates that six years lapsed. Therefore, the plaintiff was required to institute the suit within three years from when the cause of action arose. However, the plaintiff in her submission excluded the time of hearing of criminal case and date of sentence, also she excluded time for

appealing to the Court of Appeal and ninety days' notice for an individual who wants institute a suit against the Government. Considering the above-mentioned scheduled dates, hence, she is of the view that her claim is within time. On .opposite side, the defendants have argued that the plaintiff did not plead the fact that she could have claimed exceptional circumstances from the limitation law. ' X?.. ’X?'. It is a position of the. lay/ that where the suit is instituted after the expiration of the period prescribed by the law, the plaintiff must show in the plaint the ground 'W^:' of exception from such law, is claimed. The Court of Appeal made the above position in the case of Tanzania Road Agency and Attorney General v Jonas Kinyangula, Civil Appeal No. 471 of 2020, where the Court of Appeal held that: 8 "'Where the suit is instituted after expiration of the period prescribed by the Law of Limitation, the plaint shall show the ground upon which exemption from such law is claimed". From the above position of the law, I took liberty to read the plaint which was filed on 17th July, 2023 and discovered that there is no paragraph in the plaint in which the plaintiff has pleaded facts for which to ground the exemption of the Law of Limitation. Even if I take her submission that she delayed to file her suit because she was waiting sufficient evidence from the criminal case

prosecuted in criminal court, in my opinion, that ground does not hold water for this court agree with it. • ;; I do not see underThe/circumstanca/as^how she could have preferred waiting 7<:- for the criminal case to be prosecuted while parties to the said criminal case are ;"<T' not the same to those in the present case. The law is very clear that a victim in ' ■■ criminal casejs not barred from seeking further reliefs or compensatory orders in civil courts as criminal court is not a proper forum for determining rights of the party seeking for damages or other related claims. (See; the case of Tatu Kingwe v Kassim Madai [2005] TLR 405 and Benedict Gregory Mkasa v Mbaruku Selmanu & 3 Others, Land Case No. 04 of 2021. 9 I am satisfied and therefore embraced with the submission of the learned State Attorney that the plaintiff did not plead in her plaint any grounds upon which she could have claimed exception from the Law of Limitation. I therefore hold that the plaintiff has not stated the ground upon which exemption from such law is claimed. Mr. Sindamenya has cited Article 107A (2)(e) of the United Republic Tanzania ■Cv., Constitution which denies application of technicalities to struggle substantive justice. Whilst, I fully agree that the issue of time limitation as provided in item 6 of Part I of the Law of Limitation Act is not a technicality, it is a matter of prescribing

the law. More so, the issue of time-limit is more serious as all other serious violations. (See; thecase; of China Henan International Cooperation Group v Salvand K.A. Rwegasira [2006] TLR 220. In the said S', case the/Court considered the fact that the wrong citation of the law has fatal effect thanba mere technicality. It was held that: "Worse still error in citing a wrong and Inapplicable rule in support of the application is not in our view, a technicality falling with the scope and purview of Article 107A(2)(e) of the Constitution. It is a matter which goes to the very root of the matter....." io From the above position, the issue of time limit it is a matter that goes to the very root of the matter and jurisdiction of the court. It is my conviction that the issue of time limit does not fall within the scope and purview of Article 107A(2)(e) of the Constitution. In view of the foregoing reasons, I sustain the preliminary objection and hold that the suit is time barred. Consequently, I dismiss this suit with costs. Order accordingly. 26.08.2024 DATED at SUMBAWANGA this 26th day of August, 2024.

HA JUD 26.08.2024 li