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Judgment

• \IN THE HIGH COURT OF TANZANIA A'l' DAR E.8 SAL/-1 . .AN CIVIL CASE NO. 201 OF 1998 MWITA r'JAKURI QQGOOOOOOOGooooeo& pr,;, HlT I FF Versus ATTORNEY GENEI{AL OOOOGC'CIO•ooo·ooe DEFENDANT R UL r'""N .G ~~-, SUBJECT: Preliminary objection '~~ .. KATITI, ,J. One MWITA MA.KORI, an ex nrmy officer, and a retiree, hence to be ; . General called the Plaintiff/ SU..LHis l,!le Government as represented by th· Attorney/ claiming a total sum of Shs.54,486,846/=, mainly constituted by damages for pain and suffering, salaries,· sandry allowRnces, pension and Dar es .Salaam Sirali transport costs, incidental to alleged unlaviful or wrongful termination of his employmente The learned State Attorney, Mr. Ngwembe, - appearing on behalf of the Attorney General,has via, a written statement of defence, demurred,- and raised two preliminary obje tions, namely:

That the suit is hopelessly time barred, a.nd should be dismissed under .Section 3 of the :raw. of Limitation. 2e That the plaintiff, has no cause of action against the defendant, as he was legally released from the Defence Force, according to Defence Forces Reg;ulc:1tions, By consensual agreement, it was agreed that, the above objections had to be prosecuted by way of written submissions. Dutifully the same have been filcdo As I see it,the rnge has been p/und~~garound the first objection. But the antecedents of the ca.se ,which we should have first yield the following facts. The plaintiff,was released from the Defence Forces, on the 30/4/1991, Annexture 11 A-;, an Identification letter from the Army, that the plaintiff had been released, ,;kuachishwa· utumishi" from the army as from 30/4/1991, v1hen and that he filed this action on the 22/7/1998/over seven years had gone hy, and the learned State Attorney contended, the action was time barred. . of six yeaxs under Pare,-_1 First Schedule to the Law of Limitation, as the limitation period/ had gone by, On the other hand, the learned Counsel for the plaintiff, contended that, actually the plaintiff's employment, was terminated on the 14/2/i992, as per letter attached thereto, from the same authority and therefore,if anything,it was contended that time started to run against

2 - the plaintiff as from the 14/2/199~ The learned Counsel· for the plaintiff however added that in 1994, the plaintiff was admitted in Muhimbili Hospital, and th2.t, ,..,hen he recovered on the 2/12/97, he served statutory 90 days notice upon the Attorney General, to sue the Government, and that upon getting a £eply,by the Attorney General dated 24/1/1998,.he filed this suit. He contended therefore, that the time started to run as from 24/1/1998, As if for a single, or one cause of action, he is advocating two periods of limitation, in my view,: a legal impossibilityo .After dutiful consideration,in my opinion, as equally appreciated by the ena. - learned Counsels, the· be ail and/all, is the answer to the question,whether the action by the plaintiff;was time barredo In the pursuit of this I think, in the absence of, or unless any local, or special law of limitation l!c,S been put in place, and it has not been, the basis of our approach, should be A, and is the law of Limitation 1971,hence to be called the Act, I say this because, the Law of Limitation, and the provision for computation of periods of limitation, for suspension of causes of action and exclusion of time, in the Act have not been codified for all time,and eternity, as the legislature, uw.y from time to time, ~~,-,rl actn-'1 1 \ 1 doc-, legislatively .::...dd periods of limitation,under circumstances equally provided. It has to be appreciated, and I am sure,the learned Counsels do, th~~t tho lqw of Limitation Act, has many Sections,and. the first schedule contains not less than twenty four paragraphs, and hence the Judicious need of the choice of the section, and paragraph npplicable, to the circumstances of the case. How do you have to make it, In my opinion, modest as it is, a proper ppreciation of the basis, of the legal rights, on which relief is sought for, will be very helpful in determining the relevo.nt section,and paragraph, applicable to the suit,and therefore the objection. Thus it.does appear, the le2Ined counsels are concurring, and they seem to be convinced, that the cause of action, was unlawful terrnin2.tion of the 2,pplicant 1 s employment, contract and on my part, having had a thorough study of the plaint, though inelegantly structured, and other pleadings, I am equally convinced, that, is the cause of action. W_hether it is really time barred,is the legal arena, that we have to indulge in. It is trite statutory law, that, the period of limitation for a suit,founded on contract, not otherwise specifically provided for, as is words · the case here, is six years. In other/six years from date of cause of action, is the period within, which contractual remedy has be pursued, and after which, such suits are.barredo While, this is not occasioning controversy, the parties contention, is,when the limitation perod1 began to run against the plaintiff. The questiori whose answer has to opien our gates for onward process,is therefor whe:n does the limitation period start to run? It seems, to be an uncontroversial position, and actually the law, that the limitation period, can only start to run, when there is complete cause of action i.e. cause of action, hence right, of action,and person to sue ~nd person to be sued, see Section 4 and 5 of the Act, and also see HiillINDER SINGH vs ANA:Nl' RAM

• 3 • AIR ( 1939) IAH 6. ;-Since the mathmatics are that, the right of acti:: ,, i provoked by cause of action, obviously cause of action, ac~~rues when there is in exista...~~ce a p~~r.40ll wh~~ can sue~ and another wh~ can be sued. In this case, t11e respondents submission, was that the applicant's employment was, terminated on the 30/4/1991, vide letter dated 14/5/1991 leaded utarudishwa kuacha kazi- MT 25130 Pte-Mwita Makuri. -ta.y:i:ng 0 e.meachishwa utumishi Jeshini tarehe 30/4/1991 11 and therefore cause of action should be calculated, on the 30/2/1992 ·vide letter dated 14/2/92 among other things saying, "Ajaziwe fomu za kuachishwa Jeshini tarehe 30/y92" which date it is urged, should be the base for· coinputation. Unfortunately and surprisingly, both letters exist, and -were signed by the same officer and from the same office~ And yet equally pertinent and more puzzling is the applicants Counsels contenti~n, that the limitation peried began to run, from the date ~f letter of termination dated14/2/1992 as the plaint confirm and from 24/1/1998, after ' the Attorney General, had respondent to the applicant 1 s written notice, to.sue

him. With respect, I am resisting the temption to say, that the learned Ceunsel was ri.ct c:·r~ -:ius in suggesting openly that a single cause of action and its -,' attendant right of action, can have two different dates, from which the peri•d f limitation would run. If for the sake of arguement the learned Counse: thought; that the cause of action, giving right of action took place on the 14/2/92, and the limitation period began to run as from then, what happened to stp it in order to run again upon the Attonney General responding to the appli- cant's Notice? It is trite law, to remember, that when once time has begani to run, owing to the right to s-~~e as the applicant though he had., having accrued to a person, who was not_ lab~~uring under any running of the limitation period,
as the maxim of Banning says:- "It is almost universal rule in the law of , limitation, that once time has b~e&i to run, nothing st'cS_ps it. 11 It cannot ·•herefore be contemplated, that the applicants written notice to the Attorney General, or the Attorney Generals reaction to the said letter, could have put tn a break on the running of the limitation period. There is no such thing in law. The real question therefore should be whether computation, should start from 14/2/92? as the Counsel for the applicant otherwise urges, or as from 30/4/91 as the State Attorney expcnently submits, as the application of both dates in impossible, if not also absurd, as I have, I hopeably demonstrated. As the above two letters cannot legally run abreast, and have two limitation periods the answer to the above, would depend on the interpretative approach to the section of the Act. 4 ...

•. 4 • For while the. word, - 11 shall 11 , _ in Section 3 of the Act cannot es mondate, and ~ leaves no option to the court_, which is_ U!lder a duty to obey the same, and never to ove look the sai~ limitation period, it all the same appears, that where the lintitationa.l opti9ns activated. ·by differences of dat-es would yield different effects, some harsher than the other the judicial approach would be to apply • one more'farourable to the party-plaintiff~ It is therefore 11,ith care, that we must tread upon the above referred to letters of employment termination;, lf the·respondehts first letter is to be upheld, ther~ obviously wi11' be ques~ions, · as to how the applicantt "' cmploy;nent could be terminated by the second letter dated 14/2/92°, if the applicant\ ·had not been in,,employment before thato Further, using the}0/4/91 letter, not only !"ould that push t-he c.ppli-cant into a deeper depth -~f larches, but too, it would at unfairly tot-iards the applicant who empirically and documentally, was in . . . . ~ employment up to the time letters of 14/2/92• ·1 shall, therefore ··with due · respect, uphold the contention that the per·i-?d of limitation .bega..-.i to ·run as from 14/2/92, upon consumation of a complete cause of action. Let_ us therefore come to _figures and numbers, they are neithe_r corruptible, ,• .. nor capr1.c1.ous., The suit was filed on the 22/4/1998, while the complete cause of action matured on the 14/2/1992,. yielding therefore a total of -. about six and half years - well beyond the limitaion period of six years, It is trite law, that the law of limitation being absolutist in nature, the the Court can claim no choice.except to obey it; in full,~ it wo~ld be against law, equity, intentions of Parliament to over look the limitation~~riod. · ·-- .. ' Lapse of time erodes evidence ·111f rights it gradually cases evidence on the memory tapes, and Lord Plunkett made a pertinent ~bservation thus: 11 Time holds in one hand acythe in, the other. an hour glass 1 the scythe mowes dmm the evidence of our rights, the hour glass measures, the period which renders that· evidence superflous. 11 ·

5 - ·Thus the suit.,. having b~.Gn brought·beyond the limitation period, the -Courts mandatory duty, under Section 3 of the Act, unpleasant -as it is, to the applicant, is to dismiss the suit, which I hereby do, with costs. D8live_red. this 27th day of July, 19990 ~~- ; :. ' \ ( ' \ \ \ . , .. ,~~ ... - __ ,.•/,. __ ,-_c.,,,'T-\ ··y-'\ E.W. KATITI .., JUDGE · Parties: Mrs Macha State Attorney present · Plaintiff present. ..

Judgment

That the suit is hopelessly time barred, a.nd should be dismissed under .Section 3 of the :raw. of Limitation. 2e That the plaintiff, has no cause of action against the defendant, as he was legally released from the Defence Force, according to Defence Forces Reg;ulc:1tions, By consensual agreement, it was agreed that, the above objections had to be prosecuted by way of written submissions. Dutifully the same have been filcdo As I see it,the rnge has been p/und~~garound the first objection. But the antecedents of the ca.se ,which we should have first yield the following facts. The plaintiff,was released from the Defence Forces, on the 30/4/1991, Annexture 11 A-;, an Identification letter from the Army, that the plaintiff had been released, ,;kuachishwa· utumishi" from the army as from 30/4/1991, v1hen and that he filed this action on the 22/7/1998/over seven years had gone hy, and the learned State Attorney contended, the action was time barred. . of six yeaxs under Pare,-_1 First Schedule to the Law of Limitation, as the limitation period/ had gone by, On the other hand, the learned Counsel for the plaintiff, contended that, actually the plaintiff's employment, was terminated on the 14/2/i992, as per letter attached thereto, from the same authority and therefore,if anything,it was contended that time started to run against

2 - the plaintiff as from the 14/2/199~ The learned Counsel· for the plaintiff however added that in 1994, the plaintiff was admitted in Muhimbili Hospital, and th2.t, ,..,hen he recovered on the 2/12/97, he served statutory 90 days notice upon the Attorney General, to sue the Government, and that upon getting a £eply,by the Attorney General dated 24/1/1998,.he filed this suit. He contended therefore, that the time started to run as from 24/1/1998, As if for a single, or one cause of action, he is advocating two periods of limitation, in my view,: a legal impossibilityo .After dutiful consideration,in my opinion, as equally appreciated by the ena. - learned Counsels, the· be ail and/all, is the answer to the question,whether the action by the plaintiff;was time barredo In the pursuit of this I think, in the absence of, or unless any local, or special law of limitation l!c,S been put in place, and it has not been, the basis of our approach, should be A, and is the law of Limitation 1971,hence to be called the Act, I say this because, the Law of Limitation, and the provision for computation of periods of limitation, for suspension of causes of action and exclusion of time, in the Act have not been codified for all time,and eternity, as the legislature, uw.y from time to time, ~~,-,rl actn-'1 1 \ 1 doc-, legislatively .::...dd periods of limitation,under circumstances equally provided. It has to be appreciated, and I am sure,the learned Counsels do, th~~t tho lqw of Limitation Act, has many Sections,and. the first schedule contains not less than twenty four paragraphs, and hence the Judicious need of the choice of the section, and paragraph npplicable, to the circumstances of the case. How do you have to make it, In my opinion, modest as it is, a proper ppreciation of the basis, of the legal rights, on which relief is sought for, will be very helpful in determining the relevo.nt section,and paragraph, applicable to the suit,and therefore the objection. Thus it.does appear, the le2Ined counsels are concurring, and they seem to be convinced, that the cause of action, was unlawful terrnin2.tion of the 2,pplicant 1 s employment, contract and on my part, having had a thorough study of the plaint, though inelegantly structured, and other pleadings, I am equally convinced, that, is the cause of action. W_hether it is really time barred,is the legal arena, that we have to indulge in. It is trite statutory law, that, the period of limitation for a suit,founded on contract, not otherwise specifically provided for, as is words · the case here, is six years. In other/six years from date of cause of action, is the period within, which contractual remedy has be pursued, and after which, such suits are.barredo While, this is not occasioning controversy, the parties contention, is,when the limitation perod1 began to run against the plaintiff. The questiori whose answer has to opien our gates for onward process,is therefor whe:n does the limitation period start to run? It seems, to be an uncontroversial position, and actually the law, that the limitation period, can only start to run, when there is complete cause of action i.e. cause of action, hence right, of action,and person to sue ~nd person to be sued, see Section 4 and 5 of the Act, and also see HiillINDER SINGH vs ANA:Nl' RAM

him. With respect, I am resisting the temption to say, that the learned Ceunsel was ri.ct c:·r~ -:ius in suggesting openly that a single cause of action and its -,' attendant right of action, can have two different dates, from which the peri•d f limitation would run. If for the sake of arguement the learned Counse: thought; that the cause of action, giving right of action took place on the 14/2/92, and the limitation period began to run as from then, what happened to stp it in order to run again upon the Attonney General responding to the appli- cant's Notice? It is trite law, to remember, that when once time has begani to run, owing to the right to s-~~e as the applicant though he had., having accrued to a person, who was not_ lab~~uring under any running of the limitation period,
as the maxim of Banning says:- "It is almost universal rule in the law of , limitation, that once time has b~e&i to run, nothing st'cS_ps it. 11 It cannot ·•herefore be contemplated, that the applicants written notice to the Attorney General, or the Attorney Generals reaction to the said letter, could have put tn a break on the running of the limitation period. There is no such thing in law. The real question therefore should be whether computation, should start from 14/2/92? as the Counsel for the applicant otherwise urges, or as from 30/4/91 as the State Attorney expcnently submits, as the application of both dates in impossible, if not also absurd, as I have, I hopeably demonstrated. As the above two letters cannot legally run abreast, and have two limitation periods the answer to the above, would depend on the interpretative approach to the section of the Act. 4 ...

5 - ·Thus the suit.,. having b~.Gn brought·beyond the limitation period, the -Courts mandatory duty, under Section 3 of the Act, unpleasant -as it is, to the applicant, is to dismiss the suit, which I hereby do, with costs. D8live_red. this 27th day of July, 19990 ~~- ; :. ' \ ( ' \ \ \ . , .. ,~~ ... - __ ,.•/,. __ ,-_c.,,,'T-\ ··y-'\ E.W. KATITI .., JUDGE · Parties: Mrs Macha State Attorney present · Plaintiff present. ..

Mwita Makuri vs Attorney General (Civil Case No. 201 of 1998) [1999] TZHC 167 (27 July 1999)

Judgment

Discussion

Mwita Makuri vs Attorney General (Civil Case No. 201 of 1998) [1999] TZHC 167 (27 July 1999)

Judgment

Discussion