20101022 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR CIVIL APPEAL NO. 15 OF 2009 ( CORAM: MSOFFE,J.A, LUANDA J,A. And MANDIA J.A.) . YUSSUF VUAI ZYUMA ......................................................................APPELLANT VERSUS 1. MKUU WA JESHI LA ULINZI TPOF 2.KAMANDA MKUU BRIGEDIA YA NYUKI- ZANZIBAR 3. KATIBU MKUU WIZARA YA ULINZI NA JESHI LA KUJENGA TAIFA ......................................... RESPONDENTS {An Appeal from a decision of the High Court of Zanzibar) {Mwampashi,, J.) dated 17th day of June,2008 in Civil Appeal No. 25 of 2007) 1 JUDGMENT OF THE COU RT 8th December, 2009 & 23 rd November, 2010 LUANDA, J.A: The above named appellant who completed his term of service with the Tanzania Peoples Defence Forces (hereinafter referred to by its acronym TPDF) filed a suit in the Regional Court of Zanzibar at Yuga against the respondents in a claim of a sum of money Tsh. 2,500,000/= being gratuity for the extra period of one year he had rendered services to the said TPDF after completion of his term of service, costs and other reliefs the court may deem fit to grant. 2 At the end of the trial, the court dismissed the suit after it was satisfied that the appellant failed to establish h,is claim. Dissatisfied, he appealed to the High Court of Zanzibar where it was also dismissed. Still aggrieved he has come to this Court on appeal. Before the date of hearing of the appeal, the respondents filed a preliminary objection consisting two points the notice of which was served upon the appellant as dictated by Rule 100 of the then Court of Appeal Rules, 1979 (henceforth the Rules). The points raised are:- 1) The Appeal is bad in law for being grounded on the suit which was determined by the court which had no Jurisdiction to try it. 2) The Appeal is incompetent for being grounded on the suit which was hopelessly time barre~ thus warranted the court to dismiss it suo motu instead of determining the incompetency which ousted even the court Jurisdiction to try it for being time barred. In this appeal Mr. Gabriel Malata learned State Attorney from the Chambers of the Attorney General of the Government of the United 3 Republic assisted by Captain Christina Ilahuka from the office of the Judge Advocate General of the Defence Forces represented the respondents; while the appellant appeared in person and unrepresented. In the course of arguing the points of preliminary objection raised, Mr. Malata informed the Court that the second point should be considered in the alternative to the first one. With regard to the first point, Mr. Malata told the Court that the appellant was an employee of the Government of the United Republic of Tanzania in the Ministry of Defence. Per item 3 of the 1st schedule to the. Constitution of the United Republic of Tanzania, the Ministry of Defence is one of the Union Matters listed therein. He went on to say the law governing this dispute is the National Defence Act, Cap 192. And Section 2 states clearly that the Act is applicable to Tanzania Mainland as well as Tanzania Zanzibar. So, the competent court to try the dispute, according to Mr. Malata is either the High Court of the United Republic of Tanzania or the High Court of Zanzibar which has concurrent Jurisdiction with the former to adjudicate union matters. He submitted that the Regional Court of Zanzibar had no jurisdiction to adjudicate the suit. He referred us to 4 Articles 108 (1) and 115 (2) of the Constitution of the United Republic of Tanzania. Turning to the second point, which is an alternative to the first, Mr. Malata told this Court that in case the Regional Court had jurisdiction, the suit the appellant he had instituted was lodged outside the prescribed time of six (6) Months as provided under section 63 of the National Defence Act, Cap 192. Elaborating, he said the cause of action arose from 22/12/1997 the date when the appellant's claim was refused as per Exht PS; while he filed the suit on 5/10/2003. The appellant was late by five years and ten months. He thus prayed that the appeal be dismissed with costs. As earlier said, the appellant was unrepresented. He had nothing useful to say to the points of law raised. We have given a deep thought to the submissions made by Mr. Malata. We are however of the considered opinion that the question of time limit should take preference over the issue of jurisdiction. This is because a suit which is time barred cannot be entertained in any court. So, we shall discuss the issue of time limit first. . 5 It is not in dispute that the appellant completed his term of service with TPDF with the rank of a Sergeant and was stationed at Zanzibar. Further, it is also not in dispute that matters of defence falls under union affairs as per item 3 of the 1st schedule to the Constitution of the United Republic of Tanzania. The item reads:- 3. Defence and Security. And further that matters of defence including recruitment and retirement of career soldiers like the appellant are governed by the National Defence Act, Cap.192 which law is applicable both to Tanzania Mainland and Tanzania Zanzibar. As regards to the question of time limit, it is Mr. Malata's contention that the appellant did not lodge his suit within the prescribed time of six months from the date his claim was refused as per Exh. PS. He filed after a period of more than five years. Exh P.5 a letter from TPDF Headquarters shows the appellant's claim was refused. The letter is dated 22/12/1997. The appellant instituted the suit in the Regional Court of Zanzibar on 8/10/2003 a period of more than five years. Under section 63 of the National Defence Act, Cap 192 read 6 together with section 3 (1) and 29 (b) of the Limitation Decree Cap. 12 of the Law of Zanzibar such a claim ought to have been instituted within six (6) months as correctly stated by Mr. Malata from the date of the cause of action. 63. No suit or other civil proceedings shall lie against any person for an act done in pursuance of execution or intended execution of this Act or any defence Forces Regulations or of any service or departmental duty or authority, or in respect of any alleged neglect or default in execution of this Act, Defence Forces Regulations or such duty or authority, unless it is commenced within six months next after the act,· Neglect or default complained of, or in the case of any continuing injury or damage, within six months after it ceases. We entirely agree with Mr. Malata. The appellant did not institute the suit within the prescribed time of six months. By instituting the suit beyond the time allowed by law, the appellant was time barred. The courts below ought not to have entertained the matter. The lower courts proceedings were a nullity. 7 Having reached that conclusion, we do not think it is necessary to consider the issue of jurisdiction though Mr. Malata has raised very interesting points of law. In sum, we declare a nullity the proceedings, judgments and decree of both lower courts. We quash them ad set aside all orders arising from those proceedings. We also strike out the appeal for being incompetent. We make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 22 nd day of October, 2010. J. H. MSOFFE JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a tru