Prosper Paul Massawe & Another vs Access Microfinance Bank Tanzania Limited & Others (Civil Appeal No. 344 of 2022) [2025] TZCA 1322 (18 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM. (CORAM: LILA, J.A.. KENTE. 3.A And MWAMPASHI. J.A.') CIVIL APPEAL NO. 344 OF 2022 PROSPER PAUL MASSAWE .............................................. 1 st APPELLANT HILDA JOHN M USH I ....................................................2 nd APPELLANT VERSUS ACCESS MICROFINANCE BANK TANZANIA LIMITED ......... 1 st RESPONDENT TULVIN INVESTMENT COMPANY LIMITED . ....................... 2 nd RESPONDENT WILERICK PAUL MASSAWE...............................................3R t >RESPONDENT (Appeal from the ruling and order of the High Court of Tanzania Commercial Division, at Dar es salaam) fMbaawa. J.^ dated the 25th day of May, 2022 in Commercial Case No. 79 of 20193 JUDGMENT OF THE COURT OS'1 November & I8 h December, 2025 MWAMPASHI. 3.A.: This appeal by PROSPER PAUL MASSAWE and HILDA JOHN MUSHI, the appellants herein, is against the ruling and orders of the High Court (Commercial Division) at Dar es salaam (the High Court), in Commercial Case No. 79 of 2013 dated 25.5.2022. In the said impugned decision, the High Court sustained the preliminary objection raised by ACCESS MICROFINANCE BANK TANZANIA LIMITED, the 1s t respondent herein, which was to the effect that, the appellants' counter claim against it and

TULVIN INVESTMENT COMPANY LIMITED, the 2n drespondent herein, was time barred. Before proceeding any further and for better appreciation of the appeal before us, the background of the matter has to be given a/beit\n brief. Initially, in 2013, the 1s t respondent herein, instituted a summary suit vide Commercial Case No. 79 of 2013 against the appellants jointly with one WILERICK PAUL MASSAWE, the 3r d respondent herein. In that suit, the 1s t respondent sought to recover mortgage debts allegedly due to it from the appellants and the 3rd respondent. Since it was a summary suit and as the appellants were desirous of defending it, they had to apply for leave to appear and defend it first. In that respect, the appellants filed Miscellaneous Application No. 69 of 2013 which was however, refused. Having dismissed the application, the High Court proceeded to enter a summary judgment against the appellants as prayed by the 1s t respondent. Aggrieved by the said summary judgment and decree, the appellants successfully appealed against it before the Court vide Civil Appeal No. 39 of 2014. In its judgment dated 22.07.2021, the Court found the summary suit unmaintainable and for that reason, the relevant proceedings were nullified and the summary judgment was set aside.

Most importantly, the Court ordered for the summary suit, that is, Commercial Case No. 79 of 2013, to proceed as an ordinary suit. In compliance with the above order of the Court, based on the same cause of action and seeking for the same reliefs against the appellants as it was in the summary suit, the 1s t respondent instituted an ordinary suit by filing an amended plaint on 25.03.2022. The claims by the 1s t respondent were denied by the appellants who filed a joint written statement of defence on 04.04.2022. Alongside the written statement of defence, the appellants raised a counter claim against the 1s t and 2n d respondents. Notably, in the counter claim, the appellants claimed for exemption from limitation law under Order VII rule 6 of the Civil Procedure Code, Cap. 33 (the CPC). Among other things, the appellants prayed for a declaration that, the seizure and confiscation of their goods was unlawful for want of notice and for the same not being pleaded as a chattel transfer or pledged as a security for the loan, that the whole loan as advanced and its interest have been offset through sale of the confiscated goods and also that they be paid TZS. 1,091,465,200.00 being the value of goods seized and confiscated by the 1s t and 2n d respondents minus the outstanding loan at the date of the confiscation.

The appellants' counter claim was greeted by a notice of preliminary objection raised by the 1s t respondent in her written statement of defence to the counter claim which was filed on 14.04.2022, in that, the claims in the counter claim were time barred and also that the counter claim was improperly instituted. As alluded to earlier, in its ruling on the said preliminary objection dated 25.05.2022, the High Court sustained the objection and dismissed the counter claim with costs for being time barred hence the instant appeal. The appeal is predicated upon the following three grounds of appeal:

1. That the Honourable trialJudge o f the High Court (Commercial Division) erred in law for determining as a preliminary point o f law the facts pleaded by the appellants in the counter claim and denied by the 1st respondent which attracted further and better particulars in evidence.
2. That the Honourable trialJudge o f the High Court (Commercial Division) erred in fact and iaw by holding that the counterclaim raised in the written statement o f defence was time barred.
3. That the Honourable trialJudge o f the High Court (Commercial Division) erred in law for failure to embrace the binding decision

o f the higher court o f the t'and and create unnecessary conflicting decision to the decision o f the Court o f Appeal. Whereas, the appellants were represented by Mr. Thomas Brash, learned advocate, at the hearing of the appeal, the 1s t respondent had the services of Messrs. Humphrey Mwasamboma and Sylvester Mulokozi, both learned advocates. Furthermore, while the 3r d respondent was represented by Mr. Erick Simon, learned advocate, the 2n d respondent, though duly served by publication of the notice of hearing in Mwananchi newspaper on 23.10.2025, did not enter appearance and the hearing proceeded in her absence in terms of rule 112 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We wish to point it out, at this very stage that, having examined the record of appeal and in consideration of the written and oral submissions for and against the appeal, it is our standpoint that, the 1s t ground of appeal suffices to dispose of the appeal. For that reason, we will not delve into the determination of the last two grounds. In support of the 1s t ground of appeal, it was argued in the written submissions which were filed by the appellants in terms of rule 106 (1) of the Rules and which were adopted and amplified by Mr. Brash in his brief oral submissions that, the preliminary objection against the counter claim

was improperly raised by the 1s t respondent and also that the High Court ought to have not entertained it. Mr. Brash expounded that, since in their counter claim, the appellants, in terms of Order VII rule 6 of the CPC, claimed for exemption from limitation law showing and pleading the grounds upon which the exemption was claimed and as the 1s t respondent, in her written statement of defence to the counter claim, denied the facts pleaded by the appellants in that respect, then the objection raised did not qualify to be raised as a preliminary point of objection. Making reference to paragraphs 34 to 37 of the counter claim and paragraphs 15 to 17 of the 1s t respondent's written statement of defence to the counter claim, it was insisted by Mr. Brash that, as the facts pleaded were contested, then evidence was required to prove the same hence rendering the point raised as a preliminary objection, unqualified to be raised as such. To cement the point, Mr. Brash relied on the decision of the Court in the case of Safia Ahmed Okash (As Administratrix of the Estate of the Late Ahmed Okash) v. Sikudhani Amiri and 82 Others [2018] TZCA 521, wherein it was stated, among other things, that, where a preliminary objection raised contains more than a point of law, say facts, it must fail, for factual issues will require proof be it by

affidavit or by oral evidence. Based on the foregoing, Mr, Brash implored the Court to find the 1s t ground of appeal meritorious and hold that the preliminary objection was uncalled for and further that, the High Court erred in entertaining it. He thus, on the basis of the 1s t ground of appeal, prayed for the appeal to be allowed with costs. Having adopted the 1s t respondent's list of authorities filed against the appeal, Mr. Mulokozi, learned advocate for the 1s t respondent, argued that, the preliminary objection was properly raised and the High Court cannot be faulted in entertaining and sustaining it. Placing reliance on the decision of the Court in Ali Shabani & 48 Others v. Tanzania National Road Agency (TANROADS) and The Attorney General [2021] TZCA 243 and Moto Matiko Mabanga v. Ophir Energy PLC and 6 Others [2021] TZCA 599, it was submitted by Mr. Mulokozi that, the objection which was on point of law of limitation was properly raised as a preliminary objection. Mr. Simon, learned advocate for the 3r d respondent did not oppose the appeal. He subscribed to the submissions made by Mr. Brash and prayed for the appeal to be allowed. He however, prayed for the 3r d respondent not to be condemned to costs.

From the competing submissions by the counsel for the appellants and the 1s t respondent as restated above and having examined the record of appeal, the issues for our determination are firstly, whether, taking into consideration the pleadings by the appellants in their counter claim and that of the 1s t respondent in her written statement of defence to the counter claim regarding the appellants' claim for exemption from the law of limitation, the preliminary objection raised by the 1s t respondent against the appellants' counter claim was proper and in order and secondly, whether the High Court was justified in entertaining it. In tackling the above posed issues, we think, our starting point should be on a reflection of the position of the law regarding the nature and circumstances under which a preliminary objection may be raised. It is settled that, a preliminary objection must raise a pure point of law based on ascertained facts. See- COTWU (T) OTTU UNION and Another v. Hon. Iddi Simba, Minister of Industries and Trade and 7 Others [2000] TZCA 14. Furthermore, in the cerebrated case of Mukisa Biscuit Manufacturing Ltd v. West End Distributors Ltd (1969) EA 696, the defunct Court of Appeal for Eastern Africa stated what a preliminary objection should consist, thus: "So far as I am aware, a preliminary objection consists o fa point ofiaw which has been pleaded,

or which arise by dear implication out o f pleadings, and which if argued as a preliminary point may dispose o f the suit Examples are an objection o f the Court or a plea o f limitation, or submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration" It was further stated that: "A preliminary point o f objection is in the nature o f what used to be a demurrer. It raises a pure point o f law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f judicial discretion". Again, in the case of Safia Ahmed Okash (supra), this Court emphasized that: "...a preliminary objection may only be raised on a pure question o f law. To discern and determine that point, the court must be satisfied that there is no proper contest as to the point. The facts pleaded by the party against whom the objection has been raised must be assumed to be correct and agreed as they are prima facie presented in the pleadings on record"

In the instant case, the facts constituting the appellants' claim of exemption from limitation law under Order VII rule 6 of the CPC, were pleaded in their counter claim under paragraphs 29, 30, 31 and 32 thus: "29. This claim arising out o f tortious liability was not instituted within time from the date o f occurrence o fseizure and confiscation o fgoods on 21st June, 2013 because the 1st defendant on 15t h July, 2013 instituted Commercial Case No. 79 o f 2013 under summary suit against the plaintiffs for recovery o f the very loan under dispute and for an order o f execution o f the mortgagedproperty and confiscated goods, the action which was challenged by the plaintiffs by filing an application for leave to defend the suit under summary suit 30. The plaintiffs had intended to file the present counter claim upon being granted leave to defence the summary suit but the leave was refused by this court and entered judgment and decree in favour o f the 1st defendant as prayed without even offsetting the value o f confiscated goods. Copies o f the decree and ruling are attached hereto as annexures 'S". 31. Theplaintiffs were aggrievedby the said ruling and decree and appealed to the Court o f Appeal o f Tanzania in Civil Appeal No. 39 o f 2014. Upon hearing, the Court o f Appeal on 22Pd July, 2022

allowed the appeal and ordered the case to proceed as a normalsuit before the court. Copy o f the Judgment and order is attached hereto as annexure "T". 32. AH the time the plaintiffs have been prosecuting with due diligence this case before this court and before the Court o f Appeal against the sameparties and the reliefs claimed is founded upon the sane cause o f action. The time in which the plaintiffs have bees in court with good faith prosecuting this matter if excluded, the suit shall be within time. Copy o f the affidavit o f the plaintiffs to show the intention to file counterclaim upon obtaining the leave is attached hereto as annexure n U". The above reproduced facts as pleaded by the appellants in their counter claim were denied by the 1s t respondent in her written statement of defence to the counter claim appearing at page 799 of the record of appeal, where it was averred under paragraphs 16, 17 and 18, thus: "16. The contents o fparagraphs 29 and 30 o f the counter claim are strongly denied, the 1st Defendant further states that the fact that the 1st Defendant initially instituted Commercial Case No. 79 o f 2013, a summary suit against the Plaintiffs whereas the Plaintiffs' attempt to seek leave to ii

defend the said suit was denied, does not automaticallygrant the Plaintiffs a right to file their claims out o f time without following due process o fseeking extension o f time to file their claims out o f time. In further denial the 1st Defendant state that; 16.5 The Plaintiffs were under the legal obligation to first seek an extension o f time to file their tortuous claims against the 1st Defendant outside the prescribed time limit and state the said averments as their reasons for the late filing o f their claims. The Plaintiffs are therefore put to strict proof o f a ll the averment stated under paragraphs 29 and 30 o f the Counter Claim. 17. The contents o f paragraph 31 o f the Counter Claim are noted to the extent that the Plaintiffs appealed against the decision o f the High Court and that the Court o f Appeal ordered the suit to be retried as a normal civil suit. 18. The contents o f paragraph 32 o f the Counter Claim are strongly disputed by the 1st Defendant Contrary to the averment o f the Plaintiffs, the 1st Defendant further state that; 17.1. The fact that the Plaintiffs'claims against the 1st Defendant in the Conter Claim are founded upon the same parties and involving the same

cause o f action and that the Plaintiffs have been a ii along with good faith prosecuting under the originai suit does not automaticaiiy exciude the time that lapsed ever since the cause o f action occurred to the date o f filing this Counter Claim. 17.2. The fact that the Court o f Appeal held that the Commercial Case No. 79 o f 2013 should proceed as a normal suit and the fact that the Plaintiffs' Counter Claim was not originally prosecuted under Commercial Case No. 79 o f 2013, it is trite that such an order does not cover this fresh Counter Claim that was not originally prosecuted by the Plaintiffs''. As alluded to earlier, the question is whether in consideration of the above reproduced contentious pleadings regarding the appellant's claim for exemption from limitation law under Order VII rule 6 of the CPC, a preliminary objection could, in terms of Mukisa Biscuit Manufacturing Ltd (supra), be properly raised that the counter claim is time barred. The answer to the above question is not hard to find. It is crystal clear from the above reproduced pleadings that, the facts regarding the appellants' explanation on why they could not institute their claims against the 1s t and 2n d respondents within the prescribed period of time which prompted 13

them to claim for exemption from limitation law, were strongly disputed by the 1s t respondent. In that regard, since the relevant pleadings were contested, the preliminary objection as raised by the 1s t respondent was not based on a pure point of law but on mixed issues of facts and law. The appellants' pleadings that their claims were not time barred on the basis that they were entitled to exemption from limitation law under Order VII rule 6 of the CPC, were, as alluded to above, contested and they thus, required to be ascertained by evidence. In the case of Safia Ahmed Okash (supra), wherein the High Court entertained and sustained a preliminary objection not based on a pure point of law, it was stated that: "On the state o f the pleadings, the High Court cieariy erred in entertaining and determining the preliminary objection which was based on mixed issues o f fact and iaw without taking evidence". In his endeavours to concretize his argument that the point of objection raised against the counter claim was in order, Mr. Mulokozi cited the decisions of the Court in Ali Shabani & 48 Others and Moto Matiko Mabanga (supra). In the said decision, among other things, the Court restated the position of the iaw that, an objection on account of limitation is one of the preliminary objection which courts have held to be based on 14

pure point of law whose determination does not require ascertainment of facts or evidence. The Court did not state that, that should be the position in every case even where an objection based on limitation is raised but the relevant facts pleaded, require proof. The cited decisions are distinguishable because in the instant case, the relevant pleadings by the appellants were disputed by the 1s t respondent. Based on the above, we firmly find that the preliminary objection that the counter claim was time barred, as raised by the 1s t respondent, ought not to have been raised as such because it was not based on a pure point of law. There were contentious facts that required to be ascertained by evidence. The preliminary objection was improperly raised and the High Court erred in entertaining and determining it as a preliminary point of objection. The High Court was not justified in dismissing the appellants' counter claim upon sustaining the improper preliminary objection that the counter claim was time barred. We thus, find merit in the 1s t ground of appeal, which we accordingly uphold. Since the 1s t ground of appeal suffices to dispose of the appeal, as we have alluded to earlier, we allow the appeal on that basis. Consequently, we set aside the order by the High Court dismissing the appellants' counter claim and remit the record to the High Court for it to 15

proceed with the hearing and determination of the suit and the counter claim on their merits by another Judge of competent jurisdiction. We also direct that whether the appellants' counter claim is time barred or not, should form part of the issues framed for determination by the High Court. Costs shall abide by the final outcome of the suit. DATED at DAR ES SALAAM this 18th day of December, 2025. S. A. LILA JUSTICE OF APPEA P. M. KENTE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Judgment delivered this 18th day of December, 2025 in the presence of Mr. Thomas Brash, learned counsel for the appellant and Ms. Violeth Mipawa, learned counsel for the 1s t respondent, through Virtual, and absence of 2n d and 3rd respondents and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 16