Patel Trading Co (1961) Limited vs Kigoma District Council & Another (Civil Appeal No. 588 of 2023) [2025] TZCA 1108 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KOROSSO, 3.A„ KENTE, 3.A. And KHAMIS, J.A.) CIVIL APPEAL NO. 588 OF 2023 PATEL TRADING CO (1961) LIMITED ........................................ APPELLANT VERSUS KIGOMA DISTRICT COUNCIL........................................... 1 st RESPONDENT ATTORNEY GENERAL .... ; .......................................... 2 n d RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania at Mwanza) fMnvukwa, 3.) dated the 28th day of November, 2022 in Civil Case No. 29 of 2022 JUDGMENT OF THE COURT 7th & 15th October, 2025 KENTE. J-A.: This is a first appeal. It arises from the decision of the High Court of Tanzania sitting at Mwanza in Civil Case No. 29 of 2022. The appellant, Patel Trading Company (1961) Limited as the plaintiff, had sued the respondent as the defendants, claiming for among other things, a sum of TZS. 142,551,952.07 allegedly being overdue payments for routine maintenance services and providing replacement spare parts on the first respondent's motor vehicles. That was between the year 2009 and 2014. Whereas the

first respondent was sued as a proper party, the second respondent was sued in his capacity as the Government legal representative hence a necessary party. Along with their joint written statement of defence which was filed on 18thAugust, 2022 the respondents raised a preliminary point of objection to the effect that, the suit which was founded on breach of contract, was time barred for having been filed outside of the prescribed six years period of the accrual of the cause of action. After hearing the parties and going through the pleadings, in her ruling of 28th November, 2022 (now the subject of the present appeal), the learned trial Judge went on sustaining the objection. She held that, indeed the appellant's action was commenced after expiry of the six years period in contravention of item 7 of Part 1 of the Schedule to the Law of Limitation Act, Chapter 89 of the Revised Laws (the Law of Limitation Act) which requires the suits founded on breach of contract to be filed within six years of the alleged breach. Proceeding from the above premise, the learned trial Judge held that, she had no jurisdiction to deal with the. appellant's action and consequently dismissed it in terms of Section 3(1) of the Law of Limitation Act. ■Dissatisfied with the decision of the trial court, the appellant launched the present appeal fronting six grounds which are/ however, closely interwoven. Suffice it to say that, essentially, the appellant's ultimate aim in

this appeal is to fault the learned.trial Judge for holding that the suit before her was barred by limitation and subsequently dismissing it. At the hearing of the appeal, whereas the appellant was represented by Mr. Renatus Shiduki, learned advocate, Ms. Subira Mwandambo, learned Principal State Attorney appeared along with Mr. Lirso Luoga and Mr. Felician Daniel, both learned State Attorneys to represent the respondents. In support of the appeal, Mr. Shiduki relied on the written submissions filed on 17th May, 2023 and further contended that, whereas there were some invoices detailing the services provided by the appellant company to the 1s t respondent indicating the sums due and the specific due dates, other invoices were without a written deadline within which payments were supposed to be effected. It was also submitted that, each invoice for the sum that remained unpaid had a VAT component requiring the appellant to charge VAT on the payments for the services rendered to the first respondent. From the above facts which were hot contested'by the respondents, Mr. Shiduki's argument appears to invite us to hold that, as lorfg as the claimed sums and the accompanying VAT remained unsettled, the first respondent had failed to perform an ongoing contractual obligation hence the claim for being in a continuous breach of contract. To conclude his

submission on this ground which is dispositive of this appeal, the learned counsel posited that, the trial Judge should have considered the above- mentioned facts that showed the appellant had a continuous claim against the 1st respondent and a VAT liability and that, she ought to have allowed the matter to proceed to a full trial. On the other hand, the respondent's perspective on the solitary issue in this appeal as submitted by Ms. Mwandambo was that, the suit before the trial court was time-barred and therefore, the learned trial Judge was on a firm ground to hold and decide accordingly. As regards Mr. Shiduki's argument that some invoices had no payment deadlines, Ms. Mwandambo referred us to paragraphs 5 and 8 of the plaint and repulsed the appellant's claim. The. learned Principal State Attorney submitted that, in that sense, there .could not be a continuous breach of contract as the contracts between the appellant and the first respondent which form the subject of the present dispute, came.to an end in 2014 when the cause of action arose. In response to Mr. Shduki's claim regarding the appellant's failure to meet her tax obligation, Ms. Mwandambo submitted correctly.so in our view that/the appellant's failure to pay VAT, was a result of the first'respondent's failure to meet his contractual obligations and that, in whatever way, it had nothing to do with the accrual of the cause of action. The learned Principal State Attorney was emphatic that, there was no continuous breach of

contract in this matter as the series of the contracts giving rise to the suit before the High Court were entered into by the appellant and the 1s t respondent effective from the year 2009 to 2014. The position taken by Ms. Mwandambo was on the footing of what we had stated and decided in the cases of Zaidi Baraka & Others v. Exim Bank Tanzania Limited, Civil Appeal No. 194 of 2016 [2020] TZCA (9 October 2020), URU Central Cooperative Society Limited v. Laitolya Tours & Safari Limited, Civil Appeal No. 204 of 2020 [2023] TZCA 17918 (11 December 2023), Stanbic Bank Tanzania Limited v. M/s Tradexim Company Limited, Civil Appeal No. 75 of 2019 [2022] TZCA 757 (30 November 2022) and Radi Services Limited v. Stanbic Tanzania Limited, Civil Appeal No. 260 of 2020 [2023] TZCA 18029 (11 August 2023). . In all these authorities, apart from discoursing at length on what constitutes a continuous breach of contract in terms of section 7 of the Law of Limitation Act, we underscored the legal position that, a contract which does not require performance of any obligation on a periodic basis, cannot give rise to a continuous breach. ; / We have scrupulously considered the grounds of appeal which, as we intimated earlier in this judgment, on a proper view, they boil down to faulting the learned trial Judge for holding that the suit before her was barred'by limitation;

On our part, we must be quick to observe that, going by the facts that •were pleaded by the appellant and not disputed by the first respondent, we entirely agree with the learned trial Judge that indeed there was no continuous breach of contract in this matter. If we can state again, the .appellant's argument in support of the proposition that there was a continuous breach of contract, is basically twofold. One; that, some of the invoices that were not honoured by the 1s t respondent had no payment deadline and two; that, because of the 1s t respondent's failure to meet its contractual obligations, the appellant was thrown into a state of perpetual t^x liability. As (it can be seen atbnce and, and as correctly submitted by Ms. Mwandambo,-the first limb of the appellant's argument is bound to Tail as it flies in the teeth of its owri pleading where, in paragraph' 8 of its plaint, it was categorically pleaded that: "After rendering the service to the 1st defendant's . motor vehicles, the plaintiff raised and delivered to the 1stdefendant various tax invoices for settlement o f the charges for the services. The 1s? defendant ignored, refused and failed to settle the invoices totalling TZS. 142,551,952.07. The 1st defendant was contractually bound to settle the said invoices within a period of 30 days from the respective dateof each invoice../'

[Emphasis supplied] The second limb of the appellant's argument that there was a continuous breach of contract because the 1s t respondent's failure or neglect to discharge its contractual obligations, led the appellant's continued tax liability must also fail. This is because, as correctly observed by the learned trial Judge whose reasoning we totally accept, the appellant's failure to charge VAT.and pay it to the Government is not proof but a mere result of the 1s t respondent's failure to pay for the rendered services. When the above facts and analysis are considered, we do not see how the 1s t respondent can be said to have been in a continuous breach of contract up to the year 2022 when the suit subject of this appeal was lodged in court. To best illustrate what constitutes a continuous breach of contract, we think in our opinion that, a continuous breach of contract would occur for instance, in the circumstances such where, in a tenancy agreement, a tenant consistently fails to pay rent on a monthly basis as required by the agreement. In this situation, the breach is not a single event but a failure to perform a periodic obligation that continuous overtime, with a new breach occurring each month the rent is not paid, Another example is where a company has a contract to. provide monthly or weekly services to another company or institution but it stops providing them altogether while the contract is still subsisting. This is a continuous breach because the company

is failing to fulfil its obligation to provide the required services every month or week, depending on the terms of the agreement. On this point, we take inspiration from the persuasive decision of the Commercial Division of the High Court in the case of Brookside Dairy Tanzania Ltd v. Liberty International Limited and Another, Commercial Case No. 42 of 2020 where, Nangela, J (as he then was) cited with approval an old English case of Holes V. Card Union (1994) I Ch. D 293 in which the Chancery Division of the High Court of England held that: " A continuing cause o f action arises from a . repetition o f act: or omissions similar to-those in respect o f which the action is brought Lindieiy said "what is a continuing cause o f action? Speaking accurately, there was no such thing, but what is called a continuing cause o f action is a cause o f action which arises from the repetition o f acts or omissions o f the same kind as that for which the action was brought/' Upon the above exposition of the law and having considered the grounds of appeal in their wholeness,, we find them wanting in merit. Put in other words, the trial court was correct to hold and for the reasons it gave, that the suit filed by the appellant more than eight years after accrual of the cause of action, was time barred. 8

. There is therefore no basis in law or on the trial court's findings of fact which entitles this Court to interfere, on appeal, with the impugned decision of the trial court. The appeal should and, is hereby dismissed with costs. DATED at MWANZA this 13th day of October, 2025. Judgment delivered this 15th day of October, 2025 in the presence of Mr. Lubango Shiduki, learned counsel for the appellant, Ms. Subira Mwandambo, learned Principal State Attorney for the 1st and 2n d Respondents/Republic and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A S. KHAMIS JUSTICE OF APPEAL 9