MUMBA JUMA MUMBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF DODOMA AT DODOMA CIVIL CASE NO. 9370 OF 2024 MUMBA JUMA MUMBA t/a MUMBA CIVIL AND BUILDING CONTRACTORS............................................... PLAINTIFF VERSUS CHEMBA DISTRICT COUNCIL.......................................... 1st DEFENDANT ATTORNEY GENERAL....................................................... 2nd DEFENDANT RULING Date of last Order: 27/8/2024 Date of Ruling: 30/9/2024 KHALFAN, J. This is a ruling on preliminary objections raised by the defendants to the effect that: 1. The suit is hopelessly time barred for contravening item 7 of the column 1 ofpart one to the schedule of the Law of Limitation Act [Cap 89 R.E 2019]. 2. That the suit is incompetent for contravening section 6(2) of the Government Proceedings Act [Cap 5 R.E 2019] The above preliminary objections were argued by way of written submissions. Where Ms. Kumbukeni Kondo, learned State Attorney represented the defendants while the plaintiff was represented by Mr. Samwel Mcharo, learned Advocate. In her submission in support of the preliminary objections, Ms. Kondo abandoned the 2nd preliminary objection and argued the 1st preliminary objection. In her submission on the 1st preliminary objection, Ms. Kondo argued that, in the instant matter, the cause of action is breach of contract. She maintained that, in terms of item 7 column one of the 1st schedules to the Law of Limitation Act [Cap 89 R.E 2019], (hereinafter referred to as the "LLA") a suit founded on the breach of contract has to be filed within 6 years. She argued that looking at the plaint filed in the instant matter, it is clear that the suit was filed on 7/5/2024. Thus, counting from the date the contract was concluded, then this suit was filed after lapse of one year and 2 months. She argued that counting from the date the defect liability expired, this suit would be time barred for 12 days. 2 She reiterated her stance that this suit was strictly required to be filed within 6 months. To buttress her arguments, the learned State Attorney referred the decision of this court to the case of M/S Jameson Investment vs. Bahi District Council and another Civil Case No. 14 of 2023. She submitted that, going through the plaint, the plaintiff wrote several correspondences requesting to be paid by the 1st defendant in vain. She argued that out of court negotiations do not stop running of time. She referred the case of M/S P. O International Ltd vs. The Trustees of Tanzania National Park (TANAPA) Civil Appeal No. 265 of 2020 which was referred to the case of M/S Jameson Investment vs. Bahi District Council and another (supra). She therefore urged the court to dismiss the case under section 3(1) of the LLA. In reply, Mr. Mcharo argued that the cause of action arose when the 1st defendant received the letter dated 5/9/2018 but failed to pay the plaintiff the outstanding amount which was supposed to be paid after the expiry of the defect liability period that ended in April 2018. He averred that the accrual cause of action could be reckoned when the plaintiff issued a 90 days' notice and still the defendants failed to honour their obligation. He argued that the suit was filed through online filing system on 22/4/2024 as 3 required by Judicature and Application of Laws (Electronic Filing) Rules 2018 (hereinafter referred to as the Rules) and it was stamped on 7/5/2024. He referred to the decision of this court in the case of Mohamed Hashil vs. NMB Labour Revision No. 106 of 2016 (unreported) in which it was observed that where document has been filed though electronic filing system is considered to be filed in court on the date it was filed. He also argued that the decisions referred to by the learned State Attorney are distinguishable with the circumstance of this matter. He therefore urged the court to overrule the preliminary objection with costs. In rejoinder, Ms. Kondo essentially reiterated her submission in chief. Having gone through the parties' rival submissions and the record before me, the sole issue for my determination is whether the instant suit is time barred. According to the plaint filed in the instant case, the plaintiff claimed that he entered into an agreement with the 1st defendant for construction of Msaada secondary school. According to the plaint, the total contractual price was TZS 220,859,184/=. According to the plaint, 10% of the contractual price which is equivalent to TZS 21,306,115.40 was to be retained as defect liability price. On paragraph 7 of the plaint, the plaintiff claimed that after completion of the construction works on 5/9/2018 he informed the defendant about the 10% and it was agreed that such amount would have been paid in two instalments of 5% each, although such claim is sternly disputed by the defendants in the joint written statement of defence. From the plaint, the period for the defect liability price ended on 24/4/2018. Therefore, it means that the plaintiff was required to claim the money after expiry of the period which the plaint speaks in no ambiguous terms that, such period expired on 24/4/2018. This means that, the cause action arose 24/4/2018. Since such claim arises from the contract, as rightly argued by the learned state attorney in terms of item 7 column one of the 1st schedules to the LLA such suit should have been filed with six years. In his argument, the learned advocate for the plaintiff maintained that, this suit was filed through online system on 22/4/2024. Hence, in terms of the Rules, this matter is deemed to have been duly filed after it was filed through online system. With respect, I have gone through the online filing system and it shows that the matter was filed online on 29/4/2024, while the hard copy was presented for filing on 7/5/2024 contrary to the plaintiff's argument that the matter was filed through online system on 22/4/2024. 5 7 Therefore, since the matter was filed online on 29/4/2024 the same is time barred by 5 days. It is for that reason I find merits in the 1st preliminary objection and I sustain it. Consequently, this matter is hereby dismissed under section 3(1) of the LLA for being time barred. In the circumstances, I make no order as to costs. It is so ordered. Delivered at Dodoma this 30th day of September, 2024. 30/9/2024 6