Mbunge

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CIVIL APPEAL NO. 34 OF 2023 (Originating from Dodoma District Court in Civil Case No. 12 of 2022) YUSUPH RAMADHANI MBUNGE (as Administrator of the Estate of the late Ramadhan Yusuph Ramadhan).................................... APPELLANT VERSUS DESDER ALOYCE MUSHI..........................................1st RESPONDENT LINUS BERNAD TARIMO......................................... 2nd RESPONDENT JUDGMENT Date of last Order: 6th June 2024 Date of Judgment: 2nd July 2024 MASABO, J.:- The appellant herein is aggrieved a ruling of the District Court of Dodoma which dismissed his case at preliminary stages on reasons that it was belatedly filed hence, time-barred. His appeal is based on the following three grounds. One, the dismissal order was against the requirement of the law. Two, the court erred as it failed to consider the orders in Civil Case No. 26 of 2020. Three, the court erred by deciding that the suit was time-barred without considering the exclusion of time provided by the law. In terms of background, the suit from which the present appeal emanates was filed in court on 15th August 2022. The plaintiff who is the appellant Page 1 of 11 herein was suing in the capacity of an administrator of the estate of the late Ramadhan Yusufu Ramadhan who died in a road accident on 9th May 2018. It was alleged that the road accident that terminated Ramadhan's life was caused by the 1st respondent who, while recklessly driving his motor vehicle Make Toyota Volts with registration number T518 DJU along Kondoa Road, knocked Ramadhan who was riding a motorcycle with registration No. MC 917 AIIT make GSM. The 1st respondent was taken to court and was convicted of reckless driving on his own plea of guilty. Thereafter, the appellant, in the capacity of administrator of the deceased's estate, institutes the suit claiming damages to the tune of Tshs 100,000,000/=. When the suit was still at preliminary stages the respondent raised a preliminary objection that it was time-barred and based on it, the suit was dismissed hence the present appeal. The hearing of the appeal proceeded by way of written submissions. The appellant was represented by Mr. Meshak Yona Ngamando learned counsel whereas the respondent was represented by Mr. Christopher Malinga learned counsel. Both parties filed their submissions on time. Submitting in support of the appeal Mr. Ngamando consolidated the first and the second grounds of appeal. He then submitted that the dismissal order was erroneous as while dismissing the case, the trial court did not consider the orders in Civic Case No. 26 of 2020. He then cited the decision of the Court of Appeal in Yahya Khamis vs Hamid Hadi Idd and Another Civil Appeal No. 225 of 2018 and the case of Ngoni Matengo Cooperative Page 2 of 11 Marketing Union Ltd vs Ali Mohamed Osman (1959) E.A 577 where it was held that a dismissal order is distinct from an order striking out a suit as it implies that the suit has been determined to its finality and consequently deprives the aggrieved party of the right to a remedy. Thus, in the present case, the dismissal order deprived the appellant of the right to recover the general damages of Tshs 100,000,000/= which he was claiming from the respondent. Mr. Ngamando argued further that while it is true that the accident occurred on 9th May 2018, the appellant did not sleep over his right. In 2020, he instituted Civil Case No. 26 of 2020 but withdrew it on 26/5/2022 due to technical issues, and he later on refiled it. Thus, it was materially wrong for the trial court to dismiss the claim instead of striking it out. He convinced this court to reverse the dismissal order as it has the implication of abrogating the appellant's right to be heard which is a constitutional right. On the third ground of appeal, it was submitted that the dismissal order offended the provision of section 21(l)of the Law of Limitation Act, Cap 89 R.E. 2019 which provides for the exclusion of the time during which a party was prosecuting another civil proceedings. In further fortification, he cited the case of Kalekwa Ibrahimu Kiletwa vs Chausiku Samwel & 2 Others, Land Case No. 3 of 2022, HC at Mwanza where the court excluded a period of 4 years during which the plaintiff was bonafide prosecuting a case on the same cause of action before a ward tribunal. In the foregoing, Mr. Ngamando invited this court to reverse the trial court's finding with costs. In reply, Mr. Malinga submitted that the appeal has no merit as the finding of the trial court was correctly made and was compliant with the provision Page 3 of 11 of section 3(1) of the Law of Limitation Act which provides that the verdict for a suit filed out of time is dismissal. This provision, he argued, does not give room for the court to strike out a time barred matter. Therefore, the trial court was not at fault. Regarding the submission that the dismissal order was made in disregard of the court order in Civil Case No. 26 of 2020, it was submitted that the said case was not pleaded in the plaint. Therefore, it could not have been used as a justification for the exclusion. If the appellant wanted to benefit from that case he ought to have pleaded it in the plaint but he did not. Hence, he cannot blame the court because as per the law, the parties are bound by their pleadings and they are not allowed to depart from them. Similarly, the court is bound by the pleading of the parties and cannot depart from them (See Makori Wassaga vs Mawanakombo & Another [1987] T.L.R 88). Therefore, in determining the preliminary objection, the court had only to examine the pleadings before it. Accordingly, there is nothing to fault the trial court as it examined the pleadings before it and made a correct finding. On the third ground of appeal, it was submitted that the suit was filed beyond the period of three years provided for in item 6 Part I of the Schedule to the Law of Limitation Act which provides a time limit of three years for tortious suits. As per the plaint, the accident occurred on 9th May 2018 whereas the suit was filed on 16th August 2022 which was four years from the date of the occurrence of the cause of action. The suit was therefore time barred and this appeal should be dismissed for want of merit. This was the end of the submissions as the appellant did not file a rejoinder. Page 4 of 11 On my part, having carefully considered the submissions above alongside the trial court's records, I will now proceed to determine the appeal. Considering that the dismissal order being challenged emanated from a preliminary objection, it is apposite to start with the principle guiding preliminary objections. As stated in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd vs West Distributors Ltd [1969] EA 696 and the decisions of the Court of Appeal of Tanzania in such cases as Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasar, Civil Application No. 33 of 2012, CAT (unreported); Britam Insurance Tanzania Limited vs Ezekiel Kingongogo and another (Civil Appeal 125 of 2021) [2021] TZCA 579 (Tanzlii) and Gideon Wasonga & Others vs The Attorney General & Others (Civil Appeal No. 37 of 2018) [2021] TZCA 3534 (Tanzlii), a preliminary objection must raise a pure point of law and must emanate from the pleadings. The court in Mukisa Biscuit Manufacturing Co. Ltd vs West Distributors Ltd (supra) precisely stated so when it held that, a preliminary objection; " .. Consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration." [emphasis is added] It further stated that:- "A preliminary objection is in nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side Page 5 of 11 are correct. It cannot be raised if any fact has to be ascertained or what is the exercise of judicial discretion", [emphasis added] Also relevant at this outset is the provision of item 6 Part 1 of the Law of Limitation Act, Cap 89 R.E 2019, section 3(1) of the same Act which provides for the remedy of a matter filed out of time and section 21(1) which provides for exclusion of the time during which the plaintiff was in good faith prosecuting a civil action on the same cause of action. I will reproduce the last two provisions. Section 3(1) provides that:- 3.-(l) Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence And, section 21(1) provides that: 21.-(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain it. I will come back to these two provisions in the due course. In the meantime, let me first revert to the facts of the suit. Both parties agree that the time Page 6 of 11 started to run against the appellant on 9th May 2018 a date when the accident constituting the course of action occurred. The duration of three years reckoned from this date lapsed on 7th May 2021. Thus, when the appellant instituted his suit in the trial court on 16th August 2022, the duration of 3 years had already lapsed. Accordingly, and since all the parties agree that the suit was of a tortuous nature, there can be no doubt that it was time barred because, as per item 6 Part I of the Schedule to the Law of Limitations Act, such suits need to be commenced within three years after the cause of action. The appellant does not dispute this fact. His major complaint deciphered from the grounds of appeal and his respective submissions are two. The first complaint is that the court ought to have taken into account the time he spent while bonafide prosecuting Civil Case No. 26 of 2020 on the same cause of action. In support thereof, he has relied upon the provision of section 21(1) which I have reproduced above for ease of reference. This submission has been sternly disputed by Mr. Malinga who, while not disputing the provision of section 21(1), has argued that the appellant did not plead such fact in his pleading. Thus, he cannot blame the court. If he wanted to benefit from the exclusion, he ought to have pleaded the fruitless bonafide pursuit of action but he did not. His failure to plead it in the plaint deprived him of an opportunity to benefit from it. Looking at the provision of section 21(1) of the Law of Limitation Act, it is crystal clear that the intention of the law of limitation is not to punish a party who has been vigilantly pursuing his right. By excluding the time spent while Page 7 of 11 bonafide prosecuting a civil action over the same cause of action, the law provides such a party with solid protection against the misery that awaits a party who sleeps over his right. However, as correctly submitted by Mr. Malinga, a party expecting to benefit from this provision need not be docile. He must assist the court to make a finding in his favour. Although it is not specifically stipulated under the Act that the time so spent must be specifically pleaded in the plaint, the importance for disclosure of the bona fide pursuit of the court action and the time so spent, cannot be overstated. The plaintiff intending to benefit from this provision is implicitly bound to specifically plead that fact in his plaint else he will be deemed to have forfeited his right to benefit from the provision of section 21(1) of the Law of Limitation Act because in the event a preliminary objection is raised that the suit is time barred, the court will have no facts to decide in his favour. As stated in Mukisa Biscuits and many other cases, a preliminary objection arises from a point of law which has been explicitly pleaded or which arises by clear implication out of the pleadings and it is argued on assumption that all the facts pleaded by the other side are correct. It does not arise outside the pleadings and does not require additional information or evidence to ascertain. Therefore, in the present case, the preliminary objection that disposed of the appeal ought to have arisen from and to be disposed of by looking at the law and the pleadings not otherwise. In my endeavor to ascertain whether the fact that the appellant was in bonafide pursuit of a civil suit was pleaded, ended futile as the plaint is conspicuously silent about this fact. All it shows is that after the accident, the 1st appellant was charged with a traffic offence in Traffic Case No. 96 of Page 8 of 11 2018. Nothing shows that the appellant instituted or was in pursuit of Civil Case No. 26 of 2020. Even the attachments to the plaint are silent about it. In my further perusal I have observed that the existence of Civil Case No., 26 of 2020 surfaced for the first time on 15/6/2023 when the appellant was submitting in reply to the respondent's submission in chief in support of the preliminary objection. Thus, it was a mere submissions made from the bar. Holding in the appellant's favour by merely relying on this reply submission would have defeated the cardinal legal principles regarding submission from the bar. As stated by the Court of Appeal in the case of Bruno Wenceslaus Nyalifa vs. Permanent Secretary, Ministry of Home Affairs and the Attorney General, Civil Appeal No. 82 of 2017 [2018] TZCA 297, TanzLII:- "Submissions are not evidence submissions are generally meant to reflect the general features of a party's case. They are elaborations on evidence already tendered. They are expected to contain arguments and the applicable law. They are not intended to be a substitute for evidence." Further, and as correctly submitted by Mr. Malinga, apart from the principle above, such a finding would have contravened the rule that parties are bound by their pleadings and should not depart from them. Applying this principle in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) TanzLII, the Court of Appeal stated thus:- "From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded." Page 9 of 11 Cementing the principle in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020), TanzLII, the Court instructively held as follows: We feel compelled, at this point, to restate the time-honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored - see James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported) By way of emphasis, we wish to refer, with approval, to a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings," first published in Current Legal Problems (1960) at p. 174 thus: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not Page 10 of 11 made by the parties. To do so would be to enter upon the realm of speculation." That said, I see no reason to fault the trial court's finding that the suit was time-barred as an adverse finding would gravely offended the above principles. The second argument raised by Mr. Ngamando relates to the remedy. While I appreciate the distinction between dismissal and striking out of a suit, the law as it currently stands, provides a single remedy for a time barred suit and the same is stipulated under section 3(1) of the Law of Limitation Act above cited. In the circumstances, I find no justification to fault the trial court's decision to dismiss the suit. The appeal is, therefore, with no merit and is dismissed. The parties shall bear their respective costs. DATED and DELIVERED at DODOMA this 2nd day of July 2024 J. L. MASABO JUDGE 2/7/2024 Page 11 of 11