CIVIL APPEAL NO 298 OF 2023 LUPEMBE FARMERS CO OPERATIVE JOINT ENTERPRISES LTD VERSUS ALBERTO JOHN MWINAMBI

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: KEREFU, J.A., MGONYA, 3.A. And MLACHA, J.A.^ CIVIL APPEAL NO. 298 OF 2023 LUPEMBE FARMERS' CO-OPERATIVE JOINT ENTERPRISES LIMITED.................................. APPELLANT VERSUS ALBERTO JOHN MWINAMI....................... ....... ..... ............RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Iringa) (Kaiunde, 3.) dated the 13lh day of December, 2022 in Civil Case No. 04 of 20i8 JUDGMENT OF THE COURT 17th& 2&hMarch, 2025. KEREFU, 3.A.: Lupembe Farmers' Co-operative Joint Enterprises Limited, the appellant herein, is challenging the judgment and decree of the High Court of Tanzania at Iringa (Kaiunde, J.) dated 13th December, 2022 in Civil Case No. 04 of 2018. In that case, Alberto John Mwinami, the respondent, sued the appellant for payment of TZS. 69,600,000.00 being the value of the monies paid to the appellant for purchase of 3,480 poles. The respondent also claimed for payment of special damages at the tune of TZS. 339,000,000 as for the loss of profit; interest at the rate of 32% from the date of filing of the suit to the date of judgment; interest on the decretal amount and costs of the suit. The material facts giving rise to the suit and later this appeal, as obtained from the record of appeal, indicate that, the respondent was a businessman involved in the business of buying, harvesting, processing and selling poles, while the appellant is a body cooperate registered and operating under the laws of Tanzania on farming activities. That, sometimes in November, 2011, the appellant and the respondent entered into an oral agreement for the respondent to purchase of 3,900 poles from the appellant at the price of TZS. 20,000.00 per each pole. The total amount paid to the appellant was TZS. 78,000,000.00. However, upon entering into the farm for logging, the respondent managed to harvest only 420 poles valued at TZS. 8,400,000.00. Thereafter, the respondent alleged that there were no more poles to harvest as the appellant entered into similar arrangements with other customers resulting into scramble for the available poles. Having been informed that there were no more poles to harvest, the appellant promised to offer the respondent another farm for logging. However, the said promise was never fulfilled. Subsequently, on 31st May, 2012, the respondent issued a demand notice to the appellant giving her fourteen days to fulfil her promise and implement the terms of their oral agreement, otherwise legal actions would be taken against her. It was the respondent's averment that, even with the demand notice, the appellant did not fulfil her promise, hence the respondent decided to institute a suit vide Civil Case No. 7 of 2012 against the appellant. However, the said suit was withdrawn on 13th July, 2017 with leave to refile, in case the parties fail to resolve their dispute amicably. Thereafter, the respondent called for two meetings but the appellant was still not willing to settle the claim amicably. Thus, the respondent decided to institute another suit vide Civil Case No. 4 of 2018 against the appellant claiming for the above reliefs, which is the subject of this appeal. In her written statement of defence, the appellant disputed the respondent's claim by stating that, the agreement entered was not for selling poles, but the appellant negotiated with the respondent and gave him a farm to harvest the poles on his own arrangements and at his own costs. That, the appellant was not responsible with the process of harvesting and or cutting the poles in the forest. As such, the appellant disputed all reliefs claimed by the respondent and prayed for the dismissal of the respondent's suit with costs. In addition, the appellant raised a notice of preliminary objection challenging the competence of the respondent's suit to the effect that, 'the. trial court had no pecuniary jurisdiction to entertain the matter.' It is on record that, the trial court having heard the parties on the said point of objection, overruled it and the matter proceeded with the hearing on merit. Having heard the parties and considered the evidence adduced before it, the trial court decided the case in favour of the respondent and the appellant was ordered to pay: (i) The sum o f T7S. 69,000,000.00 being the value o f the reminder o f the paid amount for unharvested poles (logs); (it) General damages at the tune o f TZS. 10,000,000.00; (Hi) Interest on the decretal amount at the rate o f 7% per annum from the date o fjudgment to the date o f full payment; and (iv) Costs o f the case. The decision of the trial court prompted the appellant to lodge the current appeal to express its dissatisfaction. In the memorandum of appeal, the appellant raised six grounds which can conveniently be paraphrased as follows; one, failure by the trial court to properly analyze and evaluate the evidence adduced before it, hence arrived into an erroneous decision; two, that, the trial court had no pecuniary jurisdiction to entertain the matter; three, the trial court erred in law to entertain the suit which was hopelessly time barred; four, that, the trial court erred in law to award general damages to the respondent without giving a reasonable cause; five, failure by the respondent to summon material witnesses; and, six, the respondent failed to prove his case on balance of probability. When the appeal was placed before us for hearing, the appellant and the respondent were represented by Messrs. Marco J. Kisakali and Innocent Paulo Mwelelwa, both learned advocates, respectively. Pursuant to rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), Mr, Kisakali had earlier on lodged his written submissions. On his part, Mr. Mwelelwa did not file any written submission. He opted to addressed the Court in terms of rule 106 (10) (b) of the Rules. We, however hasten to remark, at the outset that, we will not recite each and every fact comprised in Mr. Kisakali's submissions, but we will only consider those matters which are relevant to the determination of the grounds of appeal before us, starting with the grounds of appeal touching on the procedural irregularities and the jurisdiction of the trial court to entertain the matter. Amplifying on the third ground, Mr. Kisalika argued that, according to the pleadings lodged by the appellant before the High Court, it is clear that, before the High Court, the respondent's claim was based on the oral agreement entered between the parties sometimes in November, 2011, for purchase of 3,900 poles. He contended that, a claim for recovery on the breach of contract or agreement, is falling under section 3 and item 7 of the Schedule to the Law of Limitation Act, Cap. 89 (the Law of Limitation Act), which prescribe the time limitation of instituting suits founded on contract to be six (6) years from the date when the cause of action accrued. To clarify on this point, the learned counsel, referred us to paragraphs 7 and 13 of the respondent's plaint at page 9 of the record of appeal, read together with Annexture 'G', where the respondent indicated that, the appellant orally promised to refund the sum of TZS. 69,000,000.00 being a total of the money which remained unutilized by the respondent. That, the said promise was never fulfilled despite several demands. Thus, on 31st May, 2012, the respondent issued a demand notice to the appellant giving her fourteen days to fulfil her promise and implement the terms of the oral agreement, otherwise legal actions would be taken against her. It was his argument that, since the said demand notice expired on 14th June, 2012, the cause of action started on 15th June, 2012, but the respondent instituted his suit, before the High Court, on 3rd August, 2018, after lapse of six years and two months which is far beyond the period of six (6) years prescribed by the Law of Limitation Act and thus rendering the suit hopelessly time barred warranting an order for its dismissal under section 3 (1) of the said Act. In the premises, Mr. Kisalika urged us to find that the High Court did not have the requisite jurisdiction to entertain the matter and nullity the proceedings, quash the judgment and set aside the decree of the High Court which will also result in striking out the instant appeal with costs for being incompetent. In his response, although, Mr. Mwelelwa readily conceded that, the demand notice was issued by the respondent on 31st May, 2012 and expired on 14th June, 2012, he contended that the suit was not time barred. To support his proposition, he referred us to paragraph 14 of the plaint at page 9 of the record of appeal and argued that, in 2012, the respondent filed a suit against the appellant and the said suit was withdrawn on 13th July, 2017, as the parties agreed to settle the matter, amicably, out of the court. That, there have been several meetings, correspondences and negotiations between the parties which was geared to settle the dispute amicably but, to no avail. That, when the said negotiations failed, that is when they decided to re-institute the suit. It was his argument that, if the Court will consider the time spent through negotiations and or administrative measures pursued by the respondent to try to settle the dispute amicably, would find that the suit was not time barred. Based on his submission, Mr. Mwelelwa urged us to find that, under such circumstances, the suit was not time barred. In a brief rejoinder, Mr. Kisakali reiterated his previous submission and insisted that the suit was time barred. On our part, having considered the submissions made by the parties in the light of the record of appeal before us, it is clear to us that both (earned counsel for the parties are at one on the applicable time limitation of instituting suits founded on contract to be six (6) years from the date when the cause of action accrued, as prescribed under under item 7 of the Schedule to the Law of Limitation Act. We, respectfully, share similar views and we wish to emphasize that pursuant to the said provisions, the prescribed time limit for recovery of a claim founded on contract, is six (6) years from the date when the cause of action accrued and not otherwise. Therefore, to ascertain the time when the cause of action accrued against the appellant, we have scrutinized the contents of the plaint and we agree with Mr. Kisakali that, a closer look at paragraphs 7 and 13 of the respondent's plaint, read together with Annexture 'G/ it is clear that, the suit was filed out of the prescribed time. We shall let paragraphs 7 and 13 of the plaint to speak for themselves: V. That, the defendant orally promised to refund the plaintiff's sum o f TZS. 69,000,000.00 as sum o f the money which has remained unutilized by the plaintiff in respect o f the 3,480 logs remaining. The said promises have never been fulfilled to date despite several efforts by the plaintiff to have the remaining sum o f money paid back; and 13. That, on 31/5/201, the plaintiff through his attorneys, Basil Mkwate Advocate wrote to the defendant a demand notice with Ref. No. MK/ADV/DN/.3,14149, which was served to the respondent Then, Annexture 'G' which is attached to paragraph 13 above, clearly indicated that, the appellant was given fourteen days to fulfil her promises and implement the terms of their oral agreement, otherwise legal actions would be taken against her. It is therefore clear to us that, the facts disclosed in the above paragraphs of the respondent's plaint, they mean nothing less than demonstrating that the respondent's claim or the cause of action against the appellant, was founded on contract which is falling under section 3 and item 7 of the Schedule to the Law of Limitation Act, which prescribe the time [imitation of instituting suits founded on contract to be six (6) years from the date when the cause of action accrued. In this appeal, the cause of action started on 15th June, 2012 upon expiry of the demand notice. Thus, by filling the suit on 3rd August, 2018, after a lapse of six years and two months, it is clear that the respondent's suit before the High Court was filed contrary to item 7 of the Schedule to the Law of Limitation Act, which require claims on breach of contract to be brought within six (6) years from the date when the course of action accrued. We are mindful of the fact that, in his submission, Mr. Mweielwa referred us to paragraph 14 of the said plaint and urged us to find that, the time limitation on the suit stopped due the time spent for communications and negotiations between the parties to try to settle the dispute amicably. With profound respect, we find the argument by Mr. Mwelelwa untenable. It is settled that, communications and or negotiations between the parties is not a ground for stopping the running of the time of limitation. Therefore, to rescue the suit, the appellant was required to comply with the requirement of Order VII Rule 6 of the Civil Procedure Code, Cap. 33 (the CPC) which provides that: "Where the suit is instituted after the expiration o f the period prescribed by the law o f limitation, the plaint shall show the ground upon which exemption from such law is claimed, " [Emphasis added]. Furthermore, in Consolidated Holding Corporation v. Rajan Industries Ltd &. Another, Civit Appeal No. 2 of 2003 [2005] 77CA 142: [24 February 2005: TanzLII], the Court stated clearly that the time taken in negotiations does not fail under the specified ground warranting exemption from limitation. In that case, the Court sought inspiration from the decision of the High Court at Dar es Salaam Registry in Makamba Kigome & Another v. Ubungo Farm implements Limited & PRSC, Civil Case No. 109 of 2005 (unreported) where Kalegeya, 3. (as he then was) made the following observations: "Negotiations or communications between parties since 1998 did not impact on limitation o f time. An intending litigant, however honest and genuine, who allows himself to be lured into futile negotiations by a shrewd wrong doer, plunging him beyond the period provided by law within which to mount an action for the actionable wrong, does so at his own risk and cannot front the situation as defence when it comes to limitation o f time." In the instant appeal, even if we assume, for the sake of argument, that negotiation or correspondence fell within grounds for seeking exemption envisaged under Order VII Rule 6 of the CPC, still the respondent would not have succeeded on that aspect, because apart from narrating the historical and factual background on what transpired between him and the appellant, there is nothing in the plaint supporting Mr. Mwelelwa's contention to justify the delay. This is so, because, the respondent has never considered himself that he was time barred, so as to include a ground in the plaint to plead exemption from limitation. In M/S P & O International Ltd v. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020 [2021] TZCA 248: (9 June 2021: TanzLII), the Court when considering the applicability of Order VII Rule 6 of the CPC stated that: "To bring into piay exemption under Order VII Rule 6 o f the CPC, the plaintiff must state in the ptaint that his suit is time barred and state facts showing the grounds upon which he relies to exempt him from limitation. With respect, the plaintiff has done neither:"[Emphasis added]. Likewise, in the instant appeal, since the respondent did not bring the suit, which was time barred, within the ambit of Order VII Rule 6 of the CPC, we agree with Mr. Kisakali that the suit should have been dismissed by the High Court under section 3 (1) of the Law of Limitation Act for being time barred. In Barclays Bank Tanzania Limited v. Phylisiah Hussein Mchemi, Civil Appeal No. 19 of 2016 [2021] TZCA 202: (17 May 2021: TanzLII), the Court when considered the consequences brought by time limitation to institute a suit, it was inspired by unreported decisionof the High Court Dar es Salaam Registry in John Cornel v. A. Grevo (T) Limited, Civil Case No. 70 of 1998 (unreported) where it was stated that: "However, unfortunate it may be for the plaintiff; the law o f limitation is on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web." It is therefore our settled view that, since the suit before the High Court was time barred, that court did not have the requisite jurisdiction to adjudicate on the matter and pronounce a judgment from which an appeal could lie to this Court. As such, we find the third ground of appeal to have merit. Since the findings on this ground suffice to dispose of the appeal, the need for considering the other remaining grounds of appeal does not arise. Consequently, we hereby nullify the entire proceedings before the High Court in Civil Case No. 04 of 2018, quash the judgment and set aside the resultant decree. In the event, the incompetent appeal is hereby struck out with costs. DATED at IRINGA this 25th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2025 in the presence of Mr. Rutebuka Samson Anthony holding brief for Mr. Marco J. Kisakali, learned counsel for the appellant and in the absence of the respondent; is he ' 'ginal. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL