NBC CASE JUDGMENT SIGNED 11

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 5911 OF 2024 ( C/f Civil case No. 9 of 2023 in the Resident Magistrate’s Court of Dar es Salaam at Kisutu.) NATIONAL BANK OF COMMERCE LIMITED ............................... APPELLANT Vs. EMMANUEL BULAGI MESHACK (as administrator of estate of the late Mwanahamis R. Meshack) .............................................. …….RESPONDENT JUDGMENT Date of last order: 2-12-2024 Date of Judgment: 3-3-2025 B.K.PHILLIP,J Aggrieved by the judgment of the Resident Magistrate’s Court of Dar es Salaam at Kisutu, the appellant herein lodged this appeal on the following grounds reproduced verbatim hereunder; 1 i) The learned trial Magistrate erred in law by entertaining a land matter without being vested with jurisdiction to entertain land matters. ii) The learned trial Magistrate erred in law by entertaining the suit which per the claimed amount was a Commercial dispute. iii) The learned trial Magistrate erred in law by failing to properly evaluate the evidence tendered and as a consequence thereof, her judgment and orders are contrary to law and against the weight of evidence. iv) The learned trial Magistrate erred both in law and fact by awarding TZS. 54,000,000/= as special damages and TZS. 10,000,000/= as general damages in disregard of the law, and without proper consideration of evidence on record. v) v)The learned trial Magistrate erred in law by entertaining a matter which was time-barred 2 Upon being served with the memorandum of appeal, the respondent filed a cross appeal on the following grounds of appeal. - That in granting reliefs, the learned trial Magistrate erred in law and facts by not considering reimbursement of Tshs. 4,000,000/= as purchase price and Tshs.409,954.50 as amount incurred to pay for land rent as additional sum to be granted to the Plaintiff/ Appellant. The learned Advocate Pius Alphonce Musiba and Felix Edward Makene appeared for the appellant and respondent respectively. A brief background to this appeal is important for understanding the coming discussion. The appellant is the administrator of the estate of the late Mwanahamis R. Meshack, who, sometime in May 2005, bought in public auction a property located in Plot No.364, Block”E” Tegeta Kinondoni, Dar es Salaam, for Tshs. 4,000,000/=.(hereinafter referred to as the “ Suit Property”). The Auction was conducted by Comrade Auction Mart, not a party in this appeal, but was the 2nd defendant before the lower court, under the appellant's instruction. Transfer of the suit property ownership to the 3 respondent was processed and finalized. However, the original owner of the suit property refused to give vacant possession of the same. In 2008, the late Mwanahamisi Meshack successfully sued the appellant and the administrator of the estate of the original owner of the suit property, one Juvenary Mugaybuso, vide Land Application No. 47 of 2008 at the District Land and Housing Tribunal of Kinondoni at Mwananyamala, ( hereinafter to be referred to as “ The DLHT”) which was decided in favour of the respondent. Juvenary Mugayabuso was not satisfied with the decision of the DLHT, thus appealed to the High Court of Tanzania, Land Division, against the appellant and the late Mwanahamisi Mechack vide Land Appeal No.83 of 2016, in which the this Court,( Hon. Makuru, J as he then was) declared the auction of the suit property null and void. In paragraph 12 of the plaint, the appellant averred that immediately after the judgment of the High Court aforesaid, the appellant preferred an appeal to the Court of Appeal. However, the appellant has neither proved by showing the respondent the relevant documents initiating an appeal to the Court of Appeal nor taken necessary steps to pursue the appeal. Consequently, on 5th March 2020 and 30th March 2021, the respondent served the appellant with demand letters requiring her to state the way 4 forward in resolving the dispute between them over the sale of the suit property, following the judgment of this court ( Hon. Makuru, J as she then was) which nullified the auction of the suit property. On 4th February 2022, through his advocate, the respondent served the appellant another demand letter requiring her to solve the matter amicably. The appellant did not respond to any of the demand letters aforementioned. Consequently, the respondent lodged a case in court against the appellant and Comrade Auction Mart, the auctioneer who conducted the auction. It is alleged in the plaint that the cause of action arose on 4th February 2022 when the last demand letter was served to the appellant. The respondent prayed for the following reliefs; i) An order that the appellant/1st defendant pay the respondent/plaintiff a sum of Tanzania Shillings One Hundred Twenty Eight Six Hundred Ninety One Eighty Forty Five Thousand Sixty Nine Cents (128,691,845.69) as specific damages, reimbursement, and compensation. ii) Payment of interest on the decretal sum at the rate of 24% per month from the date when the claim accrued until the satisfaction of the decree. 5 iii) Payment of interests on the decretal amount at 22% per annum until full payment. iv) An order for payment of general damages as may be assessed by this Honourable Court. v) Costs of the suit be provided for. vi) Any other relief(s) that this Honourable Court may deem fit and just grant. In her written statement of defence the appellant denied the respondent’s claims. She averred that the respondent’s cause of action arose in 2005 when the suit property was bought by the late Mwanahamis Meshack through the public auction conducted by the Comrade Auction Mart, under the appellant's instructions. The appellant had transferred the suit property to the late Mwanahamis Meshack since 2016, hence the property was under the respondent’s possession save for the eviction process blocked by the case pending in court. Following the decision of this Court ( Hon. Makuru, J as she then was ), which overturned the judgment of LHT, the appellant lodged an appeal before the Court of Appeal, which has not yet been determined. The decision of the Court of Appeal has an impact on the case at hand. She, (the appellant ) prayed for the dismissal of the case. 6 The court’s records reveal that Comrade Auction Mart did not file any defence; thus, the matter proceeded ex-parte against her. Upon hearing the case, the trial court entered judgment in favour of the respondent against the 1st appellant as follows; i) Payment of Tshs.54,000,000/=. ii) Payment of Tshs.3,000,0000/= per month. iii) Payment of interests on the decretal sum at 5% per annum until full payment. iv) Payment of general damages to the tune of Ten Million (10,000,000/=). v) Payment of the costs of the case. This appeal has been disposed of through written submissions. Having reviewed the grounds of appeal and cross appeal, I have noted that the fifth ground of appeal concerns the time limit on the institution of cases. The appellant alleges that the case was filed out of time. I will start dealing with the fifth ground of appeal because the Law of Limitation Act, [Cap. 89 7 R.E.2019], ( Hereinafter referred to as “LLA”) clearly states that cases filed out of time must be dismissed. (See section 3 of the LLA). Therefore, determining the remaining grounds of appeal depends on the outcome of the 5th ground of appeal because a case filed out of time ought not to be entertained by the court. Submitting the fifth ground of appeal, Mr. Musiba argued that every suit has its own time limitation to institute it pursuant to the LLA. The cause of action in this case is founded on the contract of sale of the suit property. The respondent purchased the suit property through an auction authorized by the appellant, and that being the case, the time limit for institution of the case is six years. To cement his argument, he referred this court to the first column of the Schedule, Part I, Item 7 of the LLA. He contended that this case was filed seventeen (17) years from when the cause of action arose in 2005. Further, Mr. Musiba contended that given that the suit is time-barred both in limitation of time for a suit founded on Contract and land which has a limitation period of 12 years as per the LLA, this court should invoke the provisions of Section 3 (1) of the LLA and allow this appeal and order dismiss 8 the respondent’s the case. He cited the case of NBC Limited & Another VS Bruno Vitus Swalo, Civil Appeal No. 331 of 2019, ( (unreported ) , in which the Court of Appeal held as follows; “…..The trial High Court, on the authorities above cited, lacked jurisdiction to determine the suit. And, with respect, had the learned judge properly directed her mind she would have realized that fact and in terms of section 3(1) of the LLA would have sustained the preliminary objection in that respect and dismissed the suit. We therefore find ground two (2) of appeal meritorious and allow it ” Mr. Musiba implored this court to hold that the trial court erred in entertaining the appellant’s case because it was filed out of time. In rebuttal, Mr. Makene argued that Mr. Musiba is unsure which law she relies on to gauge the time limit for this case. He contended that Mr. Musiba has submitted on two different laws. One is the law of contract, which supports his argument that the time limit for filing a claim founded on contract is six years. Two, the land law, which he referred to, support his argument that the time limit for filing a case on land matters is 12 years. Mr. 9 Makene maintained that Mr. Musiba’s approach is unacceptable as it leaves the duty to this Court to select the correct argument, which turns the court into a litigant by stepping into the appellant’s shoes, thus defeating the principle of impartiality. On the merit of the fifth ground of appeal, Mr. Makene argued that it is an undisputed fact from the parties’ pleadings before the trial court that the subject matter which caused the respondent to claim for reimbursement and/or compensation has been a subject of several cases in courts to date. The appellant has promised the respondent to recover and re-possess the suit property but in vain. He invited this court to review the parties’ pleadings to see the truth regarding time limitation. He referred this court to paragraphs 7,8, and 9 of the written statement of defence and the whole plaint. He maintained that the cause of action arose on the 4 th day of February 2022 following the appellant’s non-response to the respondent’s request for negotiation to settle the matter amicably, thus the case was not time barred. 10 Moreover, Mr. Makene argued that parties are bound by their pleadings as a settled principle in the rule of pleadings. He cited the cases of James Funke Gwagilo Vs. The Attorney General (2004) T.L.R 161 and Mtomekela Vs. Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019, (unreported). Having analyzed the rival submissions made by the learned Advocates, let me determine the merit of the fifth ground of appeal. Earlier in this judgment, I stated that the pleadings reveal that the respondent in her plaint averred that the cause of action arose on 4th February 2022 when the appellant ignored the respondent's demand letters from his advocate for negotiations for amicable settlement of the case. In contrast, in her written statement of defence, the appellant alleged that the cause of action arose in 2005 when the suit property was sold to the respondent. Thus, it is obvious that there is a dispute between the parties on the date of accrual of the cause of action, that is, when the cause of action arose. It is common knowledge that issues are drawn by reading the pleadings between the lines and picking what is alleged by the plaintiff and disputed by the defendant. However, in this case, despite the pleadings revealing a dispute on the accrual date of the cause of action, the trial court did not frame any issue on when the cause of action 11 accrued and whether or not the case was time barred. Let me say outright here, the trial court erred for omission to frame an issue on the date of accrual of cause of action and whether or not the case was filed out of time. As per the pleadings, the issue on the accrual date of the cause of action required evidence from the parties, thus, it qualified to be the first issue to be determined by the trial court to establish whether or not the case was proper before the court. The pertinent question is, what is the remedy under the circumstances? Since the issue on time limit was not dealt with by the trial court whereas it was apparent on the pleadings, and in this appeal it has been raised, it is imperative that the same has be to be determined by the trial court as it involves mixed issue of law and fact, to ascertain when did the cause of action arose. [ See the case of Ibrahim Abdallah (the Administrator of the estate of the late Hamis Abdallah ) Vs Seleman Hamisi ( the administrator of the estate of the late Hamis Abdallah ,) Civil Appeal No. 314 of 2020, (unreported)]. From the foregoing, this court finds a fatal irregularity in the lower court's proceedings. Due to the failure to frame issues properly, the trial court 12 omitted an important issue regarding whether or not the case was timebarred. Therefore, I hereby quash and nullify the lower court’s proceedings, set aside the lower court's judgment and order that this case be tried de novo before another Magistrate. Each party will bear her/his costs. Dated at Dar es Salaam this 3rd of March 2025 B.K.PHILLIP JUDGE 13