RULING ON OBJECTION SARAM CO LTD VS SAUT 1

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA CIVIL CASE NO. 25875 OF 2024 SARAM COMPANY LIMITED …………………...……………………………. PLAINTIFF VERSUS ST. AUGUSTINE UNIVERSITY OF TANZANIA …………………..…….. DEFENDANT RULING 27th January & 17th March, 2025 KAWISHE, J.: The plaintiff has filed the present suit claiming for breach of contract by the defendant. The plaintiff prays for judgment and decree of this court against the defendant as follows: i. An order that the defendant breached the contractual agreement and addendum therein. ii. Payment of TZS. 40,550,00.00 being the costs of building materials stayed at the site. 1 iii. Payment of TZS. 53,350,000.000 as compensation claim for plant and building equipment stayed idle at site. iv. Payment of TZS. 133,250,000.00 being the costs of labour staying idle at site. v. Payment of TZS. 893,150,000.000 as administrative and runing costs. vi. Payment of TZS. 30,200,000.000 being costs for security from 2018 to the date of filing this suit, which is charge at TZS. 400,000.000 per month. vii. Payment of TZS. 400,000.00 being cost charged from the date of filing the suit to the date of judgment. viii. Payment of TZS. 400,000.00 from the date of judgment to the date of full payment of the decretal sum. ix. Payment of TZS. 15,000,000.00 being the cost of preparing the claim. x. Costs of this this suit. xi. General damages to be assessed by the court. xii. Any other relief(s) this court may deem fit and just to grant. The defendant filed her written statement of defence disputing the plaintiff's claim. The written statement of defence was accompanied by a notice of preliminary objection that the suit is time barred. 2 It is a trite principle that, where there is a preliminary objection on point of law, it must be determined first before the hearing of the suit. This principle finds its legitimacy in the decision of the Court of Appeal in Zahara Kitindi & Another vs. Juma Swalehe & Others, Civil Application No. 04/05 of 2017 (unreported). Therefore, in this suit, the court ordered for the of preliminary objection to be argued first. The parties agreed and prayed to be heard by way of written submission. As a result, the court granted the prayer and issued its order accordingly. Both parties adhered to the schedule of submission. While Mr. Anthony K. Nasimire, learned advocate represented the defendant, Mr. Edmund Rweyemamu Ngemela, learned advocate represented the plaintiff. Arguing in support of the preliminary objection, Mr. Nasimire the defendant’s learned advocate submitted that, this suit is time-barred. His major ground being that, the law clearly stipulates that, suits which originates from contractual agreement must be filed within six years from the date the cause of action arose. He referred this court to section 5 of the Law of Limitation Act (Cap. 89, R.E 2019) and Column 7, Part 1 of the Law of Limitation Act (supra). He argued that, as stated under paragraphs 11, 12 and 13 of the plaint; the cause of action occurred before 16th day of 3 January 2018 and the suit should have been instituted before the 17th day of January, 2024. He added that, according to the records available in the CMS portal, this suit was filed on the 8th day of October, 2024 when it was out of time for 256 days. He averred that, taking into consideration the present suit, the breach of contract is not in the nature of continuing breach. To cement his submission, he relied on the case of Tabeco International Limited vs. Attorney General & Another, Civil Case No. 139 of 2019, (HC) Dar es Salaam District Registry (unreported). He went on submitting that, in our jurisdiction courts have consistently held that the law of limitation does not admit exceptions based on equity or sympathy. The law is applied strictly on the issue of limitation of time to ensure certainty and finality in legal actions and even a single day beyond the limitation period is sufficient to bar the suit. He referred this court to the decision made in the case of M/S. P & O International Ltd vs. The Trustees of Tanzania National Parks (TANAPA), Civil Appeal No. 265 of 2020 (CAT), which quoted with approval the decision made in the case of John Cornel vs. A. Grevo (T) Limited, Civil Case No. 70 of 1998 (unreported). He stated further that, courts of law are enjoined to dismiss suits which are time barred even if the issue of 4 limitation is raised by the parties or not as provided under section 3 (1) of the Law of Limitation Act (supra) and in Joseph Mapunda vs. Shirika la Usafiri Dar es Salaam [1982] TLR 258. Mr. Nasimire submitted further that, the date stated by the plaintiff in the plaint is not the exactly date on which the breach of contract occurred; rather it was the date on which the defendant acknowledged the purported breach of contract and the breach occurred before the date when the defendant acknowledged it. He argued that, failure to specify the exact date of the cause of action contravenes the mandatory provision of Order VII Rule 1 (e) of the Civil Procedure Code (Cap. 33, R.E [2019], as observed in the case of K & A Engineering Com. Ltd vs. The Attorney General & Others, Land Case No. 12 of 2023 – (HC) – Dar es Salaam (unreported) which cited with approval the case of Camel Oil (T) Limited vs. Bahdela Co. Ltd, Land Case No. 104 of 2021 (unreported). In light of the foregoing submission, the defendant’s advocate prayed for this suit to be dismissed for being time bared and the plaintiff be ordered to pay the costs. 5 Responding to the submissions made by the defendant’s advocate, Mr. Ngemela maintained that, the preliminary objection raised by the defendant has no merit and prayed for this court to dismiss it. He argued that, from the plaint, it is clearly stated that, after the expiry of the contractual period the parties agreed to extend the contractual period for one year, that is up to February, 2019 as stated under paragraph 17 of the plaint. He went on arguing that, this suit was instituted in October, 2024 thus, it was not time barred. The plaintiff’s advocate submitted further that, in accordance to the provision of section 7 of the Law of Limitation Act (supra), it is a cardinal principal of law that, when there is continuous breach of contract, the period of limitation began to run from every moment of time during which the breach of contract continued. He contended that, the case laws cited by the defendant’s advocate to that respect are not applicable in this suit. The plaintiff’s advocate insisted that, since the breach of contract occurred in February, 2019 and the suit was filed in October, 2024, it was filed within the prescribed period of time. Lastly, he prayed for the preliminary objection raised by the defendant be dismissed. 6 In his rejoinder submission, the defendant’s counsel contested the plaintiff’s counsel submission that there was a continuous breach of contract in the present suit. He also faulted the plaintiff’s claim that the cause of action arose in February, 2019. He was in a stance that the cause of action arose on 14th March, 2018 as there was no continuous breach of contract. He bolstered his stance by citing the case of Tabeco International Limited vs. Attorney General & Another (supra), which he cited earlier in his submission in chief. He went on reiterating his submission in chief that, each breach of contract constitutes a separate and complete cause of action and cannot be the continuation of the former. The defendant’s counsel further reiterated his submission in chief and submitted that, the plaintiff has failed to show the exactly date in which the cause of action arose and invited this curt to dismissed this suit with costs. I have careful read and considered the submissions made by both parties in respect of the raised point of preliminary objection. This court is now duty bound to decide on its merits or otherwise. In order to determine this objection, this court raised one issue, whether the suit is time barred. It is the defendant’s learned counsel claim that, the suit is time barred. His major ground being that, all suits of contractual nature must be 7 instituted within six years from the date of breach. According to him, in this suit the alleged contract was executed on 26th January, 2017 and it was for one year only. He contended that, by any means, this suit was to be institute before the 17th day of January, 2024 and not on 08th October, 2024 when the suit was already time barred for almost 256 days. The plaintiff’s learned counsel has passionately argued that, the suit is not time barred as there was a continuing breach and that the same expired on 16th January, 2019. His argument was that, after the extension of the contractual period for one year from February, 2018, which was also breached by the defendant made the time limitation to begin to run from February, 2019 and not January, 2018 as submitted by the learned counsel for the defendant. Having observed the contents of the plaint and its annextures, the facts show clearly that, on 07th February, 2018, the parties to this suit had a meeting in which among others, the defendant acknowledged to have breached the contractual terms. According to the annextures it was agreed in the said meeting that the defendant must prepare a letter which will give the way forward in respect to the contract which was already breached by the defendant. It is clear that, through a letter dated 12th day of February, 8 2018, the defendant extended the contract for a period of one year. I wish to quote part of a letter written by the defendant which provides that: “We wish to request that we extend the project time for at least one year due to financial constrains and unexpected problems in cash flow as it was communicated to you in the meeting.” As stated earlier herein above, the requirement for writing the letter was among the resolutions reached by the plaintiff and the defendant in their meeting held on the 07th day of February, 2018. It follows that, after the meeting there were communications going on between the parties as shown in the correspondence letters and the plaintiff submitted a revised work program to the defendant on 14th March, 2018. The defendant’s learned counsel in his rejoinder submission averred that, the acknowledgement of the breach by the defendant does not transform the initial breaches into continuous acts. He averred so as the plaintiff’s learned counsel referred to paragraph 17 of the plaint referring to the plaintiff and defendant’s meeting which resulted in the defendant’s extending the contract period. Given the extension of time which was suggested by the defendant through her letter dated 12th February, 2018 directed to the plaintiff but was not honoured, I agree with the plaintiff’s learned counsel that, there was continuous breach of contract and the 9 provisions of section 7 of the Law of Limitation Act (supra) must come into its operation. The section provides that: “Where there is a continuing breach of contract or a continuing wrong independent of contract a fresh period of limitation shall begin to run at every moment of the time during which the breach or the wrong, as the case may be, continues”. In my view, in this suit, the limitation period started to run from the date when the extended period of one year expired and not after the expiry of the first contractual terms. In the case of Tabeco International Limited vs. Attorney General & Another (supra) which was cited by the defendant’s counsel, the court refused to apply the provisions of section 7 of the Law of Limitation Act (supra) since there was no proof of continuous breach. The plaintiff just issued invoices and demand notices which did not amount to extension of time as in the case at hand. The period spent waiting for the payment of the invoice was considered to be an independent event with its limitation period. Consequently, the circumstances of the cited case are distinguishable to the circumstances of the present case in which it was clearly stated that, the contractual agreement was extended for a period of one year. Its limitation period started to run after the expiry of the extended period. 10 As a result, I find it is difficult to hold that the suit is time barred. The suit is within the prescribed time and the point of preliminary objection is without merit and it is hereby dismissed with costs. It is so ordered. DATED and DELIVERED at SONGEA this 17th March, 2025. E. L. KAWISHE JUDGE 17/03/2025 COURT: Ruling delivered in the presence of Mr. Edmund Mnyawami learned counsel holding brief for both the plaintiff’s and defendant’s learned counsel. E. L. KAWISHE JUDGE 17/03/2025 11