SULEIMAN RWEHUMBIZA TILWI Vs

IN THE HIGH COURT OF TANZANIA DODOMA SUB – REGISTRY AT DODOMA CIVIL APPEAL NO. 17782 OF 2024 (Arising from the Judgment of Resident Magistrate Court of Singida at Singida in Civil Case No. 06 of 2023) SULEIMAN RWEHUMBIZA TILWI……..……………………………………APPELLANT VERSUS NATIONAL MICROFINANCE BANK (NMB) PLC..……………………..RESPONDENT JUDGMENT Date of last Order: 15/01/2025 Date of Judgment: 21/02/2025 E.E. KAKOLAKI, J. This is an appeal by the appellant against the decision of the Resident Magistrate Court of Singida at Singida in Civil Case No. 6 of 2023 handed down on 22/03/2024, that dismissed his suit against the respondent for being preferred outside the specified time limitation. Before the trial Court the appellant had sued the respondent for tortious actions of false 1 imprisonment and defamation following her acts of associating him with forgery of documents that led to theft of money from one of the bank branches located at Itigi District, Singida Region and initiation of criminal proceedings against him for reporting the said crime, the acts that caused his arrest on 08/06/2017 and incarcerated in the police cell for three (3) days before he was released on bail on 10/06/2017 as per paragraphs 3, 4, 5 and 8 of the plaint. And that, he continued to report at police for a long time until when other suspects were arraigned before the Resident Magistrate Court for Singida region at Singida in Criminal Case No. 127 of 2017 that was terminated on 30/06/2021 as he was not charged by the prosecution. In defence the respondent raised a preliminary point of objection on the ground that the suit purely defective for being time barred, the ground which was sustained by the trial court after hearing both parties and reasoned that, the cause of action accrue on 08/06/2017 when the appellant was accused reported at police to have committed the said forgery, arrested and incarcerated in the police cell as he was released on 10/06/2017, the period which is almost six years passed as the suit was filed in June, 2023. The suit was therefore dismissed for being time barred as per the requirement of section 3 of the Law of Limitation Act, [Cap. 89 R.E 2019] (the LLA). Not 2 amused the appellant is before this Court seeking to displace the said decision expressing his grievances in two grounds going thus: 1. That, the trial Court erred in fact and law in making a finding that the cause of action arose on the date the appellant was arrested and put under police custody and not when he ceased to report to police, as such the suit is time barred. 2. That, the trial Court erred in fact and law in not holding that, the issue of limitation as raised by the Respondent in this matter was wrongly raised it was based in unascertained facts. At the hearing of the appeal both parties appeared represented and were ordered to argue the appeal by way of written submission which order they complied with as the appellant indicated to the Court expressly that would not wish to make a rejoinder submission. The appellant enjoyed the services of Mr. Godwill Fredrick Benda, learned advocate from Kidumage & Associates while the respondent represented by Ms. Vannessa Mlugwana Msangi, learned advocate. In his address regarding the first ground of appeal Mr. Benda faulted the trial court’s finding that the cause of action arose when the accused was arrested 3 and incarcerated in the police cell as it ought to have taken into consideration the fact that the appellant continued to report at police for a long period which was not stated in the plaint, thus a date of accrual of cause of action could only be established by evidence during the trial as facts establishing it were unascertained. In view of that submission the Court was invited to find merit in this ground and allow the appeal. On the second ground he said as the ascertainment of the date of accrual of cause of action called in evidence the raised ground did not qualify to be an objection on the point of law. To fortify his stance the Court was referred to the case of Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd [1969] 1 EA 696 and COTWU (T) OTTU Union & Another Vs. Hon. Idd Simba, Minister of Industries And Trade & 7 Others [2000] T.L.R 88 where it was held that, a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, like the situation obtained in this case Mr. Benda stressed. He thus urged the Court to uphold this ground of appeal too. 4 In response Ms. Msangi resisted the submission by the appellant that, the trial court should have relied on undisclosed dates of cessation of his reporting to police despite of the fact that no criminal charges were preferred against him as in terms of the provision of Order VII Rule 1(e) of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC) appellant’s plaint ought to have stated the facts constituting the cause of action and when it arose. To her therefore, the appellant cannot be excused for not stating the time or date when the cause of action arose. She however argued further that, since the claimed cause of action by the appellant were false imprisonment committed when there is wrongful restrain or denial of person’s liberty and defamation in which a written or spoken statement referring to the complainant must be false and communicated or published thereby causing him injury, and given the fact that the alleged tortious actions are claimed to have been committed in 2017, the trial Court was justified to dismiss the suit filed in 2023 more than 5 years and 10 months passed as under item 6 Part I of the schedule to the LLA, the time limitation for suit founded on tort is 3 years only. As to the second ground of appeal she contended the submission by the appellant that the raised ground of objection was not on pure point of law is 5 misleading as preliminary objection arises from pleaded facts or those arising out by clear implication of pleadings as held in the case of Karata Ernest and others Vs. Attorney General Civil Revision No. 10 of 2010 the cited in the case of Ali Shaban and 48 others Vs. Tanzania National Roads Agency and the Attorney General Civil Appeal no. 261 of 2020 ( TANZLII page 7-8). In this case she explained, the trial court was satisfied after relying on the pleaded facts in the plaint that, there was no unascertained facts calling for evidence for determination of the raised preliminary objection, hence correctly ruled that the suit was preferred outside the time limitation as the objection was based on pure point of law. She thus pressed the Court to find the appellant is unmerited hence dismiss it. I have carefully followed the rivalry submission by the parties and took time to revisit the pleadings in trial court record with view of resolving the issue as to whether the trial Court was justified to dismiss appellant’s suit or not. In responding to this issue I will be addressing the two grounds of appeal as raised by the appellant starting with the first one in which the issue is when did the cause of action arise in the present matter. The cause of action is defined by the Court of Appeal in the case of John Mwombeki 6 Byombalirwa Vs. Agency Maritime Internationale (Tanzania) Limited [1983] TLR 1 to mean essentially the facts which is necessary for the Plaintiff to prove before he can succeed in the suit. In the present case Mr. Benda took the view that, the issue as to when did the cause of action arise ought to be answered at the end of the trial after receiving evidence from both parties as according to him cause of action arose when the appellant ceased to report at police after being bailed out, the date which was not stated in the plaint and not on the date when the alleged forgery was reported by the respondent at Police hence his arrest and incarceration in the police cell. Contrary position was taken by Ms. Msangi who argued that, the fact not pleaded could not be relied by the trial Court to determine as to when the cause of action arose given the requirement of the law to have the facts constituting cause of action and when it arose to be stated in the plaint in terms of Order VII Rule 1(e) of the CPC. Glancing at the plaint in paragraphs 3, 4, 5 and 8 it is uncontroverted fact that appellant’s cause of action is premised on tortious actions of false imprisonment and defamation as he is claiming to have been seriously injured by respondent’s act of reporting him at police as criminal accusing him of forging documents leading to theft hence arrested and locked up in 7 the police cells for three days from 08/06/2017 to 10/06/2017. False imprisonment as defined by the learned authors Winfield and Jolowicsz on Tort 15th Edition by W.V.H. Rogers Page 69, means "wrongful restraint, denying a person his liberty’’. And the tort of defamation as a common law term is described in the case of Peter Keasi Vs. The Editor, Mawio Newspaper and Another, Civil Case No. 145 of 2014, Tanzlii, to be a false statement be it spoken or written, published or communicated against or referring to the plaintiff hence causing him injury. Now applying the above definition to the fact of this case it is the finding of this Court that, regarding the act of false imprisonment the cause of action arose when the appellant was incarcerated for three days in the police custody and released on 10/06/2017. As for the tort of defamation the same arose when the alleged false statement or accusation against the appellant that he was involved in forgery of documents leading to theft of money from one of the respondent’s branches at Itigi District was communicated at Police resulting into his arrest and incarceration in the police lock ups. I disassociate with Mr. Benda’s proposition that it ought to be the date when the appellant ceased to report at police for two reasons. One, the date in which he ceased to report at police is not pleaded and therefore cannot be relied on by the 8 Court in determination of the raised point of objection as the principle stated in Mukisa Biscuit (supra) is that, a preliminary objection comes from a point which has been pleaded, or which arise by clear implication out of the pleadings. Second, appellant’s act of continued reporting at police after release from police, if any, in itself does not constitute any type of tortious action since it is a resultant effect of the tort of defamation after communication to police appellant’s alleged false accusations concerning his involvement in theft through forgery of documents. In view of the above I find myself without any convincing reasons to fault the trial Court’s findings instead upholding it on the ground that, under section 5 of the LLA the right of action in respect of any proceeding, shall accrue on the date on which the cause of action arises, which in this case it was on 08/06/2017 for the tort of defamation and on 10/06/2017 for false imprisonment. As the suit was brought in Court in June, 2023 more than 5 years and 10 months passed since accrual of cause of action, it was proper for the trial Court to dismiss the said suit under section 3(1) of the LLA for being filed outside the prescribed time limitation of three years in terms of Item 6 Part 1 to the schedule of the LLA as it was also held by this Court in the case of Hamis Ramadhani Chuma Vs. TANAPA, Civil Case No. 3 of 2020 at page 4 9 (Tanzlii). The raised issue above is therefore answered in affirmative in that, the trial Court was justified to dismiss the suit for being time barred. Next for determination is the second ground of appeal which I think need not detain this Court much basing on the affirmative findings of the first ground of appeal. I so view as the issue here for determination is whether the raised preliminary objection raised was based on unascertained facts in which its findings as already determined in the first ground of appeal is that, there was no any unascertained facts that needed to be proved as claimed by Mr. Benda, before the issue as to whether the suit by the appellant was time barred or not could be determined, since the cause of action as pleaded in paragraph 3,4, 5 and 8 of the plaint accrued when the appellant was allegedly falsely imprisoned on 08/06/2017 and defamed ,before he was released on bail on 10/06/2017. Much as the alleged dates in which the appellant stopped reporting at police were not pleaded it cannot be said that they constituted facts not ascertained to disqualify the raise preliminary objection from being object on point of law, as a preliminary objection must be free from facts calling for proof or requiring evidence to be adduced for its verification. See the cases of The Soitasambu Village Council Vs. Tanzania Breweries Ltd and Another, Civil Appeal No. 105 of 2011 and 10 Shoshe Sinare Vs. Stanbic Bank Tanzania Limited and Another, Civil Appeal No. 89 of 2020 (CAT-unreported). Thus this ground of appeal is also wanting in merit. All said and done, the appeal I find is unmerited and proceed to dismiss it in its entirety. Given the nature of the case, I order each party to bear own costs. It is so ordered. Dated at Dodoma this 21st day of February, 2025. E. E. KAKOLAKI JUGDE 21/02/2025. Court: The Judgment has been delivered at Dodoma today on 21st day of February, 2025, in the presence of Mr. Godwill Benda, advocate for the Appellant and Ms. Vanessa Msangi, advocate for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 21/02/2025. 11