CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 24810 OF 2024 ___________________ MAGELE BARNABAS MAHUBE T/A MAHUBE STATIONARY & GENERAL SUPPLIES ………………………. PLAINTIFF VERSUS PERMANENT SECRETARY MINISTRY OF EDUCATION, SCIENCE AND TECHNOLOGY……….1ST DEFENDANT THE ATTORNEY GENERAL………………..……………….2ND DEFENDANT RULING Date of last Order: 19th February 2025 Date of Ruling: 10th March 2025 MTEMBWA, J.: As discerned from the pleadings, in 2014 and 2015, the Plaintiff entered into an oral agreement with the first Defendant to print standard seven Mock examinations for twenty District Councils within Kigoma, Shinyanga, Geita, Mwanza, and Kagera Regions through a government department working under the first Defendant. In honoring the agreement, the Plaintiff supplied the exams and other printed and written materials to the designated district councils promptly and to the agreed standards. 1 The facts reveal further that the payment terms were such that the first Defendant should affect payment immediately after being served with the invoices. Upon being served with the invoices worth Tanzania Shillings 197,423,000.00/=, the first Defendant was required to pay the Plaintiff immediately. Despite being served with the invoices, it could appear that the first Defendant never honoured them. On 12th February 2019, while acknowledging the Plaintiff’s claim in writing, the first Defendant wrote to the Permanent Secretary, President’s Office - Regional Administration & Local Government, for him to remind and instruct all Regional Administrative Secretaries to ensure they effect such payments. In response, on 27th June 2019, the Permanent Secretary, President’s Office - Regional Administration & Local Government wrote a letter to the Regional Administrative Secretaries of Kigoma, Shinyanga, Geita, Mwanza and Kagera Regions directing and demanding them to make good, among others, of the Plaintiff’s claim before 30th August 2019 to avoid unnecessary legal actions. Despite such directives, no payment was made in favor of the Plaintiff. As a result, the Plaintiff served to the first and second Defendants demand letters of intention to sue. Following such refusal, the Plaintiff claims for a declaration order that the Defendants have breached the agreement for failure to effect full 2 payment of the agreed sum of Tanzania Shillings 197,423,000.00/= being the amount the Defendants owe the Plaintiff; general damages as shall be assessed and determined by this Honorable Court as compensation for mental anguish, disturbance and inconveniences; interest on the decretal amount at 21% per annum from when the cause of action arose to the Plaintiff to the date of filing this suit; interest thereof at 21% per annum from the date of filing this suit to the date of Judgment; interest on the decretal amount at the prescribed Court rate of 7% per annum from the date of delivery of Judgment to the date of final payment or satisfaction of the entire decretal sum; and costs of the suit. The Defendants vigorously resisted the claim and, in addition, raised a preliminary objection that the suit is time-barred. When the matter came for orders on 19th February 2025, the Plaintiff was represented by Mr. Francis Mchonvu, the learned counsel, while Ms. Lucy Kimaryo, the learned state attorney, symbolized the Defendants' presence. By consent, parties agreed to argue the preliminary objection by way of written submissions. Arguing on the preliminary objection, the learned state attorney referred this Court to paragraph 5 of the Plaint where the Plaintiff alleges, in the years 2014 and 2015, he entered into an oral contract with the first Defendant to print standard seven (Mock) examinations. According to 3 paragraph 8 of the Plaint, it was agreed between the parties that the first Defendant should effect payment to the Plaintiff immediately after service of the invoices. Consequently, the Plaintiff issued eight (8) invoices in 2015 for payment pursuant to Annexures MSGS 1 and MSGS 2, which have never been attended to by the first Defendant. She contended that by filing this suit on 2nd October 2024, nine (9) years have passed without referring the dispute to the Court. The learned state attorney argued further that the cause of action arose in 2015. According to Part I of the Schedule to the Law of Limitation Act, Cap 89 R.E. 2019 (herein “the LLA), precisely item 7, the time limit for suits founded on a Contract is six (6) years. She faulted the Plaintiff for not acknowledging anywhere in his complaint that his claim was time-barred or pleading any exemption from which he filed it out of time. He did not even give the reason for the delay. She was fortified by the decisions of Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni, Civil Application No. 19 of 2016, Court of Appeal of Tanzania at Dar es Salaam and Tumaini S. Habimana vs Bulyanhulu Gold Mine Ltd, Civil Case No.151 of 2011, High Court of Tanzania at Dar es Salaam. Based on the foregoing, the learned state attorney implored this Court to sustain the objection. 4 On his part, Mr. Mchomvu considered the preliminary objection misconceived. In his further submissions, the learned counsel referred this Court to paragraph 10 and annexure MSGS3 attached to the Plaint and argued further that on 12th February 2019, the first Defendant acknowledged a debt owed to the Plaintiff and directed her counterparty to act to ensure that the claimed sum is paid. Paragraph 11 of the Plaint, if read together with Annexure MSGS4, plainly indicates that her counterparty worked on the directions. Based on that, the learned counsel observed that time started to run on 12th February 2019 when the first Defendant acknowledged the debt, which was within the time limit of March 2021. Close to that, the learned counsel insisted that since the acknowledgement of the debt in writing was made before the expiration of the time limit of 6 years, the act gave rise to a fresh cause of action. That means the new cause of action started to count from February 2019 onward because, in law, once a debtor acknowledges the debt, the date of acknowledgment becomes the new date of accrual of the claim. He was fortified with section 27(3) of the LLA, which provides as follows; Where a right of action has accrued to recover a debt or other pecuniary claim, or to recover any other movable property whatsoever, or to recover any sum of money or other property under a decree or order of a court and the person liable or accountable therefor acknowledges the claim or makes any 5 payment in respect of it, the right of action in respect of such debt, pecuniary claim or movable property, or as the case may be, the right of action in respect of an application for the execution of the decree or the enforcement of the order, shall be deemed to have accrued on and not before the date of the acknowledgement or, as the case may be, the date of the last payment. The learned counsel observed that in view of section 28 (4) of LLA, the acknowledgment to pay must have been made before the expiration of the initial limitation period prescribed for the claim. Since the cause of action arose in March 2015, six years expired on 29th March 2021, and since the acknowledgment of debt was made on 12th February 2019, this suit was filed within time. In that respect, the first Defendant is bound by the acknowledgement in view of section 29(5) of the LLA. To fortify his arguments, the learned counsel cited the cases of N.K. IMPEX and Another vs. Daissy General Traders and Others (Civil Case No. 22 of 2023) [2024] TZHC 235 (9 February 2024), Standard Chartered Bank (T) Ltd vs. Pharmaceutical Investments Ltd & 2 Others (Commercial Case No. 44 of 2012) [20131 TZHC ComD 12 (5 February 2013) and J.C. Budhraja vs. Chairman Orissa Mining Corporation Ltd. and Others (2008) 2 SCC 444 or AIR 2008. Based on that, the learned counsel implored this Court to overrule the preliminary objection. 6 Indeed, according to section 5 of the LLA, the right of action in respect of any proceeding accrues on the date the cause of action arises. Section 3 (1) provides that the accrual of rights of action in most cases is be deemed to have accrued on the date on which the last transaction relating to the matter in respect of which the account is claimed took place. In that respect, every proceeding described in the first column of the Schedule to the Act and instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defense. According to item 7 of the first schedule to LLA, any suit founded on a contract not otherwise explicitly provided for, its time limit is six years. According to David W. Oughton, John P. Lawway and Robert M. Merkin in their Book titled “Limitation of Action”, London, 1998; Once time start to run, it does so continuously from the date of accrual unless there is some special rule which indicates otherwise. Time stops running as soon as the plaintiff commences legal proceedings in respect of his cause of action, but only does so in respect of the action in respect of which proceedings are brought. In search of a proper way to handle this matter, I consulted T. Prime and G.P. Scanlan in their book titled “the Morden Law of 7 Limitation” Butterworth, London, 1993. They both agree at page 40 that; The general principle applicable to the ruling of time is that once begun, it continues and will not be suspended. ………..the courts were encouraged to take the view that only statutory exemptions to the basic principle were permissible ………. The restrictive approach could thus be based both on statutory interpretation and policy. From the above scholarly works, I do not doubt that time starts to run from the day the right of action accrues. Once it begins to run, it does so continuously until the Plaintiff commences proceedings with respect to the cause of action. However, there are exemptions to the general rule, including when the Defendant acknowledges the debt. In such circumstances, the time from when the cause of action accrued to the date when the acknowledgment is made is excluded. That means time will start afresh. In this case, there is no dispute that the cause of action is founded on contract; thus, the time limitation prescribed by the law is six years from when the same accrued. From the Plaint and submissions by the parties, the cause of action arose in 2015. Similarly, the parties agree that, originally, this suit should have been filed by Mach 2021. According to the learned state attorney, filing this matter on 2nd October 2024 means it was filed 8 within nine (9) years. She considered the suit to have been filed out of time and in blatant violation of the LLA. On his part, Mr. Mchomvu was not far from conceding that the cause of action arose in 2015. Thus, being funded on contract, this suit was supposed to be filed in Court by March 2021. However, he pleaded exemption under section 27(3) of the LLA. He insisted that since the debt was acknowledged in writing before the expiration of the time limit of 6 years, the act gave rise to a fresh cause of action. That means the new cause of action started to count from February 2019 onward because, in law, once a debtor acknowledges the debt, the date of acknowledgment becomes the latest date of accrual of the claim. The LLA prescribes six years as the period of limitation for recovery of debts arising from the contract. However, section 27(3) of the Act provides that an acknowledgment to pay the debt, if made in writing, extends the period of limitation prescribed for recovery of the debt. Once a debtor acknowledges the debt, the date of acknowledgment becomes the new accrual date of the claim. However, to rely on the acknowledgment to pay as an extension of the limitation period, such acknowledgment must have been made before the expiration of the initial limitation period prescribed for the claim. Admittedly, an Acknowledgement is an admission of the debt and 9 must be one from which an absolute promise to pay can be inferred, an unconditional promise to pay the specific debt, or a conditional promise to pay the debt and evidence that the condition has been performed. The effect of the acknowledgment of the debt under section 27 (3) of the Act is that, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. The section is based on the principle that the bar of limitation should not be allowed to operate in cases where persons under the liability acknowledge the existence of a claim. Every acknowledgement affords a new proof of the existence of debt. Thus, the section does not enlarge the limitation period, but a fresh period begins to run from the date of acknowledgement. Acknowledgement of liability by the Defendant interrupts limitation, which means that it cancels the already elapsed portion of the limitation period and allows a fresh period of limitation from the date of such 10 interruption. Such an acknowledgement, however, does not extinguish the original cause of action nor create a new one. In this case, the Plaintiff relies heavily on an exemption pegged on section 27 (3) of LLA, claiming that the Defendant acknowledged the debt in writing on 12th February 2019 before the expiration of the time limit of 6 years. As such, he claimed for a fresh counting of the accrual of the right of action. That means the new cause of action accrued on 12th February 2019 and thus, the limitation bar changed to February 2025. In order to reconcile with what the Plaintiff is alleging, I should first scrutinize the letter dated 12th February 2019. It was prepared by the first Defendant to TAMISEMI. The body language speaks as follows; Kutokana na madeni hayo, Wizara imepokea kusudio la kushitakiwa na mtoa huduma wa Kituo cha Kisomo cha Taifa, Mwanza aitwaye Mahube Stationary & Genera Supplies ambave alikikopesha Kituo cha Kusoma cha Taifa Mwanza vifaa vva uchapaji ili kiweze kumudu kuchapa mitihani hiyo. Naleta kwako jambo hili ili hatua stahili za ulipaji wa madeni hayo ufanyike kuepusha Wizara kuingia kwenye mashitaka yanayoweza kuepukwa. Naambatisha barua zilizopelekwa kwa makatibu tawala na kusudio la kushitakiwa Wizara kwa rejea. With respect to Mr. Mchomvu, the Plaintiff can not rely on the letter above as an acknowledgment of the debt. First, it was not directed to the 11 Plaintiff or copied to him. Second, even for the sake of argument that it was an acknowledgment to pay the debt, it did not specify the amount of money claimed or acknowledged. In fact, the letter was an internal government communication between one ministry and another. I wonder how the same got to the Plaintiff’s hands. Had the letter been directed to the Plaintiff or copies to him, I would have concluded that it was an express confirmation or acknowledgement of the debt. If the first Defendant intended to acknowledge the debt, he would have made the Plaintiff aware of the letter by copying him. To consider confidential internal correspondences of the government as acknowledgement of debt will cause inconveniences and may resume or perpetrate insider dealings. To that end, I disagree with the Plaintiff’s counsel that the letter dated 12th February 2019 acknowledged the debt. In that respect, the Plaintiff cannot seek refuge under section 27(3) of the LLA. This suit, therefore, should have been filed by March 2021, and an exemption, if any, would have been pleaded in the Plaint. If the Plaintiff thinks he has a genuine claim against the Defendants, he may apply for an extension of time to the Minister in view of section 44 (1) of LLA. In the upshot, the preliminary objection is hereby sustained. In terms of section 3(1) of LLA, this suit is hereby dismissed for having been filed 12 out of time. Considering the circumstances, there will be no order as to costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 10th March 2025. H.S. MTEMBWA JUDGE 13