Said Baragash & Another vs Soud Mohamed Barakati (Civil Appeal No. 344 of 2023) [2026] TZCA 334 (23 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A.. MASHAKA. J.A. And ISSA. J.A.I CIVIL APPEAL NO. 344 OF 2023 SAID BARAGASH ........... ....................................................1 st APPELLANT LULUA INVESTMENT LTD .................................................... 2 n d APPELLANT VERSUS SOUD MOHAMED BARAKATI (Suing as Legal Representative of the Late MOHAMED ISLAM BARAKAT) ................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Dar es Salaam District Registry at Dar s Salaam) fNkwabi. J.> dated the 13th day of February, 2023 in Land Case No. 20 of 2019 JUDGMENT OF THE COURT 8th October, 2025 & 23rd March, 2026 MASHAKA. J.A: The respondent instituted Land Case No. 20 of 2019 before the High Court of Tanzania (Land Division) against the appellants for a fundamental breach of contract. The judgment was entered in favor of the respondent and awarded general damages to the tune of TZS. 90,000,000.00. Aggrieved, the appellants lodged the present appeal. A brief background to the appeal is that, on 16th July 2007, Lulua Investment Ltd, the 2n d appellant and Said Baragash, the 1s t appellant and Chief Executive Officer of the 2n d appellant entered into a Construction i

Agreement with Amour Mohamed Barakat, the then-administrator of the estate of the late Mohamed Islam Barakat, to construct a new 10 -11 storey apartment building on Plot No. 997 along Mfaume road at Upanga, Dar es Salaam. There was an existing one-storey building on the same plot with tenants living in the said building. According to the terms of the agreement, the 2n d appellant would bear all construction costs which was to commence within 3 months after obtaining a building permit and to be completed within 24 months. It was also agreed that upon completion, the family of the owner of the said plot would own 4 apartments, and the 2n d appellant would own the remaining apartments. Further, it was agreed that the ownership of the plot would be transferred from the sole name of the administrator of the estate to the joint names of the said administrator and the 2n d appellant. The 2n d appellant had agreed to pay USD 250,000.00 to the administrator of the estate as part of the agreement as per the mode of payment. A building permit was obtained on 26th June 2009 and the appellants demolished the existing building and commenced construction. However, after the foundation and first-floor slab were completed, construction works stalled. Despite demands from the respondent including a formal notice in 2016 and administrative intervention by the Regional Commissioner of Dar

es Salaam in 2018, the appellants failed to complete construction of the building. The project has remained in its preliminary stage for over a decade. After the fruitless efforts, the respondent instituted Land Case No. 20 of 2019 on 11th April 2019 at the High Court alleging a fundamental breach of contract. After a full trial, the High Court entered judgment in favor of the respondent on the ground that, a valid contract between the parties existed and the appellants were in breach for failing to complete construction of the building within the agreed timeframe, notwithstanding excuses such as the respondent's failure to register shares and internal family disputes were not valid under the contract terms. It therefore declared that the appellants had breached the construction contract and ordered the removal of the 2n d appellant's name from the Certificate of Title No. 186177/40 for Plot No. 997, Upanga reverting sole ownership to the administrator of the estate. It further awarded TZS 90,000,000.00 as general damages for the breach of contract. The appellants were dissatisfied with the decision of the High Court and are before the Court raising seven grounds of appeal which we will not narrate them for reasons to be addressed shortly. On the other side, the respondent had filed a notice of preliminary objection on 11th April 2025 raising two points and before hearing of the appeal could proceed in earnest, Mr. Kennedy Alex Mgongolwa, the learned counsel representing the respondent informed the Court that he had no

further intention of arguing the preliminary objection and prayed to abandon it. Mr. Ngassa Ganja Mboje, learned counsel for the appellant had no qualms and we accordingly recorded the notice of preliminary objection abandoned. On 3r d October, 2025, the appellants prayed for leave of the Court pursuant to rule 113 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to add a new ground of appeal the prayer which was not objected by Mr. Mgongolwa and we allowed it. The new ground reads:- "That the trial court erred in law to entertain the suit which was hopelessly time barred hence the court lacked jurisdiction to entertain the su it " During hearing of the appeal, Mr. Mboje commenced with a prayer to abandon grounds 1, 2, 3, 4 and 5 of appeal and proceed to argue grounds 6, 7 and the new ground of appeal in support of the appeal. He argued first the new ground of appeal that according to paragraphs 5, 6, 9 and 13 of the plaint, there is no dispute that a construction contract existed between the parties which was entered on 16th July, 2009 in accordance with the conditions specified at paragraph 13 of the same. He submitted that the construction was to commence on 26th September, 2009 after securing the building permit and cleaning up the construction site. The construction was to be completed within two years; that is on 26th September, 2011, according to paragraph 13 of the plaint. He argued that under the Law of Limitation

Act, item 7 (1) provides that any suit on breach of contract has to be instituted within six (6) years. It was his contention that the six years which commenced on 26th September, 2011 ended on 26th September, 2017. He demonstrated that the respondent instituted the suit on 11th April, 2019 (p. 12). To bolster his argument, Mr. Mboje referred us to the case of NBC Limited and Another v. Bruno Swalo, (Civil Appeal No. 331 of 2019) [2021] TZCA 122. Mr. Mgongolwa in reply, submitted that in reference to the plaint, the appellants entered into a joint venture and construction agreement with the respondent for demolition of a one storey building located on landed property situate on Plot No. 997, LO No. 21946 with Title No. 186177/40 along Mfaume Street at Upanga, Ilala Municipality in Dar es Salaam and to erect a 11-storey building dated and signed on 16thJuly, 2007. He submitted that as agreed at paragraph 9 of the plaint that the appellants would obtain a building permit and all other necessary license from relevant authorities and demolish the pre-existing structure and commence construction of the newly agreed 11 storey building within three (3) months after acquiring the said permit. As per clause 7 of the construction agreement, the appellants being the investor guaranteed to complete construction within twenty-four months after obtaining the building permit. 5

As to when the time commenced to accrue, the learned counsel asserted that it was after the 21 days of the issuance of the demand notice dated 14th September 2011. He referred to the testimony of DW1 that there was issuance of another building permit in 2011, hence the construction was supposed to be complete on 2013, and it was when the time limitation starts to accrue. Therefore, the suit was not time barred. In a brief rejoinder, Mr. Mboje argued that the demand notice cannot bar the accrued cause of action as it is not the law and as parties are bound by their pleadings; the time commenced after the 1s t building permit as there was no 2n d building permit tendered in evidence. He thus maintained his earlier position that the suit was time barred. In resolving the appeal, we have taken the course to determine first the additional new ground of a' ppeal which the appellants complain that the trial court had no jurisdiction to determine the suit. We shall, in the circumstance, revert to their respective submissions relevant to the issue under our consideration only. We first subscribe to the settled position that parties are bound by their agreements they freely enter into; this is a cardinal principle of the law of contract. See, Simon Kichele Chacha v. Aveline M. Kilawe, Civil Appeal No. 160 of 2018 [2021] TZCA 43 and Francis Vicent @ Mahimbo v. The

National Microfinance Bank PLC, Civil Appeal No. 120 of 2023 [2024] TZCA 355. Likewise, as correctly asserted by Mr. Mboje, parties are bound by their pleadings. See for instance, Maria Amandus Kavishe v. Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023) and NBC Limited and Another v. Bruno Swalo {supra). In a case where the plaintiff's claim is for breach of contract for instance, the pleading should set out the terms of the contract, its date, the parties involved and the breach with all the necessary details. The particulars as to when the cause of action arose must be pleaded in the plaint. The significance of this is that from the date given the Court will know whether or not the suit is barred by the law of limitation, and the defendant will be under no illusion as to the date or time the events took place. Section 3 of the Limitation Act is to the effect that no action founded in contract shall be brought after the expiration of six (6) years from which the cause of action arose. Now the issue before us is when did the cause of action arise. Generally, the right of action accrues on the date on which the cause of action arises, that is, the right of action accrues when the breach occurs. However, there are circumstances where the computation of the period for

limitation may be excluded such as when the defendant had been outside of the United Republic of Tanzania or when there had been a continuing breach. See, RADI Services Limited v. STANBIC Bank T. Limited (Civil Appeal No.260 of 2020) [2023] TZCA 17492 (11 August 2023). It is clear to us that both learned counsel for the parties are at one on the applicable time limitation of instituting suits on contract to be six (6) years from the date when the cause of action accrued, as prescribed under item 7 of the Schedule to the Law of Limitation Act. We, respectfully, share similar views and we wish to emphasize that pursuant to the said provisions, the prescribed time limit for recovery of a claim founded on breach of contract, is six (6) years from the date when the cause of action accrued and not otherwise. Reverting to the plaint in line with the principle that parties are bound by the terms of the contract they freely signed and parties are bound by their pleadings, we shall refer to clause 13 of the plaint which provides as to when the cause of action accrues. It reads: - "That as per the clause 4(c) (d) and (e) o f the Joint venture and construction agreement it was a conditional term o f the agreement that after obtaining o f a building permit on 2&h June 2009 the construction had to start on 20h day o f September, 8

2009 and construction completion on the 2&h September 2011 but to date no development o f whatsoever has been made by the defendants." In light of the above, it is clear now to us that after obtaining of the building permit, construction ought to be have been completed on 26th September, 2011 hence the cause of action arose in 2011. Mr. Mgongoiwa tried to impress us that the cause of action starts to accrue after issuance of a demand notice and after the expiry of the second building permit on 2013, which we do not agree as none of the clause in the plaint support his submissions. We therefore subscribe to the submission of Mr. Mboje that the cause of action does not accrue from the date of the issuance of the demand notice. Therefore, it is our settled view that, the cause of action accrued on 26th September 2011 while the suit was instituted on 11th April 2019, which is after a lapse of six years, hence time barred. Since the suit before the High Court was time barred, it did not have the requisite jurisdiction to adjudicate on the matter and pronounce a judgment from which an appeal could lie to this Court. As such, we find the additional new ground of appeal to have merit. The findings on this ground alone suffices to dispose of the appeal, thus the remaining grounds 6 and 7 of appeal are inconsequential. 9

Consequently, we hereby nullify the entire proceedings before the High Court in Civil Case No. 20 of 2019, quash the judgment and set aside the decree, In fine, the incompetent appeal is struck out with costs. DATED at DODOMA this 19th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. IS5A JUSTICE OF APPEAL Judgment delivered this 23r d day of March, 2026 via video link in the presence of Mr. Ngassa Ganja Mboje, learned counsel for the Appellants, Mr. Kennedy Alex Mgongolwa, learned counsel for the Respondent and Mr. 10