IN THE HIGH COURT OF UNITED REPUBLIC OF THE
TANZANIA
(COMMERCIAL DIVISION)
AT DAR-ES-SALAAM
COMMERCIAL CASE NO. 17 OF 2021
LINDI EXPRESS LTD.............................. PLAINTIFF
VERSUS
INFINITE ESTATE LIMITED..... .(.^...DEFENDANT
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Last order: 23rd June, 2021 ? \\ ' ,
Judgment: 13th August, 2021 x >
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■ RULING
NANGELA, J:, \ x ...y /
This xis>azcase relating to alleged breach of lease
agreements, ^he gist of the matter is that the Plaintiff
concluded two^ lease agreements with the Defendant
sometimespn,45 day of September 2014. Initially, the
commencement date was 1st of December 2014.
However, as per clause 1(c) of the lease documents, it
seems there was a change of mind between the parties
that the commencement date be amended to read 1st
January 2015.
The lease agreements required the Defendant to
pay the Plaintiff, a monthly rental charges amounting to
Page 1 of 13
USD 2847 and USD 1720 for each of the respective
demised propriety. It is alleged that, throughout the
agreed periods, the Defendant defaulted payment in each
of the respective lease transaction, hence this suit.
The Plaintiff is praying for Judgement and Decree
against the Defendant as follows:
(i) Payment of US$ 60,557/- or
equivalent of TZS
140,492,240/-, being ^rental
fees due to the Plaintiff. \ \.
(ii) Interest on the principal amount '
at the rate of 25%?per annum
from the date of the breach of
the ’terms of the agre^ment (1st
XJanuary 2015) To the date of
\XFiling this suit;
(Hi) Interest on the decretal amount
at the rate of 25% for the date of
> filing this suit to the date of
judgment;
(iv) General damages for breach of
contract as may be assessed by
this Court;
(v) Interest at Court's rate on the
decretal sum from the judgment
date to the date of full settlement
(vi) Costs of this suit be borne by the
Defendant,
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(vii) Such further reliefs the Court
deems just and fit to grant.
In terms of representations, the Plaintiff enjoyed
the legal services of Mr Gratian Mali, Advocate, while the
Defendant was represented by Mr Jerome Msemwa,
learned advocate.
When the suit came for orders on 6th May 2021, Mr
Mali noted that the Defendant had raised a preliminary
legal issue regarding the competence of this suit. In
particular, the legal issue raised by the Defendant was to
the effect that, the matter was hopelessly time barred.
On the material date this Court ordered the parties to
dispose of the preliminary legal issue by way of filing
written submissions. A schedule oTfiling such submissions
was issued to the. parties and the Court scheduled the
matter to be called oh for orders on the 23rd June 2021.
On that material date, it was observed that the
orders of this Court dated 23rd June 2021 had been fully
complied with. I thereby set the 13th day of August 2021
as the day for the delivery of the ruling of this Court. This
ruling, therefore, is in respect of that preliminary legal
issue. I will summarise the respective arguments made
by the learned counsel for the parties shortly below and
embark on their analysis before declaring the findings or
the verdicts.
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Submitting in support of the preliminary objection,
it was Mr Msemwa's contention that, the Plaintiff is
claiming from the Defendant a sum of US$ 54,809.00
as arrears of rent arising from two lease agreements
entered between the two over Basement Office No.l, 2,
3, 4 and 5 and another agreement for Mid Mezanine No.l
and No. 2. Mr Msemwa submitted that, both lease
agreements were executed on the 15th day of September
2014 and commencement date, for both agreements, was
on the 1st day of December 2014. < , j
Mr Msemwa submitted,, relying pf section 14 of the
Law of Limitation Act, Cap.89 R.E. 2019 that, the period of
limitation right of action in relation to any proceeding
commences from the date on which the right of action for
such proceedings accrues. To further cement that view,
he relied on the case of CRDB (1996) Ltd vs. Boniface
Chimya [2003] T.L.R 413.
IL was Mr Msemwa's argument that, when such
principle is applied to the case at hand, it makes it plain
that the right of action accrued from the 1st of December
2014 when the lease agreements commenced. He relied
on Clause 1(c) of the executed lease agreements alleging
that it had stipulated that the commencing date was from
the 1st day of December, 2014 to 30th day of November,
Page 4 of 13
2015. He contended, therefore, that, the right to claim
arrears of rent commenced on the 1st of December, 2014.
Referring to Rule 13 Part 1 of the Schedule to the
Limitation Act, it was Mr Msemwa's submission that, a
suit to recover arrears of rent must be filed within six
years from the date it was accrued. He contended that,
the suit at hand was filed on 15th February, 2021 after a
delay of about 77 days from the time when it ought to
have been filed and, that, it was filed^without there being
an order of the Court extending time to the Plaintiff to file
it out of time.
Relying on the decision of the Court of Appeal in the
case of Cresthale (UK) Ltd vs. Bondeni Seeds Ltd
[2000] T.L.R 1, as well as the case of Tanzania
■ Jill
Harbour/Authority vs. Mohamed R. Mohamed,
[2003] T.L.R, 76.' and others which I need not mention
here, Mr Msemwa submitted and urged this Court to
strike out the suit.
On 3rd day of June 2021, the Plaintiff's learned
counsel filed his written submissions. In his submission,
the learned counsel contended that the Defendant's
submission were out of context and unfounded. He
argued that, the contract upon which the suit is based
commenced on the 1st day of January 2015 following the
Defendant's request to defer the commencement date
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from December 1st 2014. He argued that, all the arrears
claimed by the Plaintiff are, as per the invoices annexed
to the Plaint, counted from the 1st day of January 2015.
Mr Mali, the Plaintiff's counsel, maintained that, the
Defendant retained the premises under the first contract
from the 1st day of January 2015 to 30th November, 2015,
a time when the rental charges had reached USD 31,
317. Further that, the Defendant retained the premises
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in respect of the 2nd contract fronClx January 2015 to
30 May 2016, when the rental charges amounted to
USD 29,240. 'v
According to Mr Mali}, the jease agreements upon
which the claims aresbased were^nbba one-off transaction
like a sale of commodity-agreement. Instead, he argued,
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the agreementSxwere continuous in nature from the date
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of commencement?j:o their expiry date. He contended
that; ( during \the subsistence of such agreements the
parties^duties^ and obligations continued until the
relationship corhe to an end and did not come to an end
when the agreements were signed.
It was submitted further that, while the Defendant
was supposed to pay rental charges from the date of
signing the tenancy agreements, such requisite rental
charges were not paid. It was submitted, therefore, that,
the Defendant's act of continuing to retain the premises
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without paying the requisite charges amounted to a
continued breach of the agreements. The learned counsel
for the Plaintiff relied on section 7 of the Law of
Limitation Act, Cap.89 R.E 2019 and the case of Thomas
Ngawaiya vs. The AG and Others, Civil Case No. 117
of 2013 (un reported).
In his further submission, Mr Mali was of the view
that, the subsequent acts of the parties by implication,
changed the terms of the contract and the\time agreed
for payment of rent changed from the date^of signing to
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some other date when the plaintiff allowed the Defendant
to occupy the premises without paying the agreed rent in
advance. To support his position, the, learned counsel for
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the Plaintiff relied, oh, the case of Erick John Mmari vs.
M/s Herkin Builders Ltd, Commercial Case No. 138 of
2019 Cunreported1);
, (To conclude his submission, Mr Mali contended that,
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since\the breach by the Defendant was a continuous
breach, The cause of action arises immediately upon
termination of the parties' relationship. For such a reason,
the Plaintiff prayed that the preliminary objection should
be dismissed with costs.
As per the Order of this Court dated 6th May 2021,
the Defendant was to file a Rejoinder submission on or
before 11th day of June, 2021. However, that was not
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filed and, I will carry on my deliberations on the basis of
what was availed to the Court.
From the rival submissions as narrated herein
above, the issue that needs my attention is whether the
suit at hand is indeed time-barred as contended by the
Defendant. In principle, as it was stated in the case of
Alcheraus Sephurine Mwesiga v Tanzania Portland
Cement Company Ltd, Civil Case No.12 of 2019,
(unreported), where a wrong ^continuing and its
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effects are seen, the cause of action does ndt extinguish.
It is also worth noting, as it was held in the case of
Josephat Muniko s/a Mwita Mkindya and Another
v North Mara Gold Mine Ltd, Commercial Case No.9
of 2019, HC (l^reporteld^xthat, section 3 of the Law
of Li mitatiomAcK which calls-for a dismissal of a suit which
V. vt w
is found..toxbe/tirne. barred, must be read together with
section 7 of the sxame Act.
In^this matter at hand, the alleged cause of action
as per the Plaint is breach of contract. According to
Halsbury's Laws of England, 4th Edn., Vol.28 it is
stated, in paragraph 662, that:
"In an action for a breach of contract the cause
of action is the breach. Accordingly such an
action must be brought within six years of the
breach; after the expiration of that period the
action will be barred, although damage may
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f
have accrued to the plaintiff within the six years
of action brought."
Under our law, Item 7 of the Schedule to the Law of
Limitation Act, Cap. 89 provides a similar time limit as it
prescribes that, claims relating to breach of contract to be
brought within six years of the breach. According to
section 5 of the Law of Limitation Act, the accrual date is
the date when the cause of action arises.
However, as I indicated herein above, it is also true
that, when a particular breach is "a continuing broach
of contract", that continuing breach has tfe;effect of
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postponing the commencement of the lirnitation period.
The question that follows/therefqre, is whether the kind
of breach alleged1, to have beerPcommitted by the
Defendant amounted to a continuing breach for it to
benefit from the provision of section 7 of the Law of
Limitation Act.
In the case of Brookside Dairy Tanzania Ltd vs.
Liberty International Ltd and Other, Commercial
Case No.42 of 2020, (unreported), this Court, relying on
the Indian Case of The Rehabilitation Plantations Ltd
vs. P.S. Ansary, on 21 December, 2009, defined what
constitutes a continuing breach. In that case it was stated
that:
"The term ’continuing breach’ is intended
to apply to contracts obliging one of the
parties to adopt some given course of
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action during the continuance of the
contractual obligation. But a continuing
breach or wrong is different from a
continuing damage. The former gives rise
to a fresh cause of action but not the
latter."
Cases involving "continuing" or "successive
breaches" include those cases in which there is a promise
to pay periodically, as for instance, payment of rent,
annuities, interest, maintenance etc. In the case of a
continuing tort, for instance, a fresh ^period, of limitation
begins to run at every moment of the time during which
the breach or the tort, as the case may be, continues.
In the Brookside case, (supra), this Court also
referred to an old English Case of Holes v. Chard Union
[1894] 1 Ch.D. 293, in vyhich it was stated that:
- "a5 continuing cause of action arises from
x x \ the repetition'of acts or omissions similar
' , to’those in respect of which action is
X ^brought. Lindley, L.J. Said, "What is a
continuing cause of action? Speaking
accurately, there is no such thing; but
what is called a continuing cause of action
is a cause of action which arises from the
repetition of acts or omissions of the same
kind as that for which the action was
brought."
In the case of TABECO International Ltd v
Attorney General and 3 others, (Civil Case No. 139 of
Page 10 of 13
2019) [2020] TZHC 3561; (11 November 2020), this
Court (Masabo, J) stated that:
"Section 7 of the Law of Limitation Act,
Cap. 89 R.E 2019 contemplates such
cases where the party to the contract
dishonour the promise but continues to
enjoy the services rendered by the other
party to the contract."
The above cited case made a further elaboration
reference being had to the decision of Dixon, J, (judge of
the High Court of Australia) in the case of Larking vs.
Great Western (Nepean) Gravel ? Ltd. (in
Liquidation) (1940), 64,C.LR./22i (HCA). In that case,
the learned judge had the following to say, at p. 236 of
that judgement of his, that:.
"If a covenantor undertakes that he will
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do a-definite'act-arid-omits to do it within
the time allowed for the purpose, he has
broken1- his - covenant finally and his
'- continued failure to do the act is nothing
■but a failure to remedy his past breach
and not the commission of any further
breach of his covenant. His duty is not
considered as persisting and, so to speak,
being forever renewed until he actually
does that which he promised. On the
other hand, if his covenant is to maintain
a state or condition of affairs, as, for
instance, maintaining a building in repair,
keeping the insurance of a life on foot, or
affording a particular kind of lateral or
vertical support to a tenement, then a
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further breach arises in every
successive moment of time during
which the state or condition is not as
promised, during which, to pursue the
examples, the building is out of repair, the
life uninsured, or the particular support
unprovided." (Emphasis added).
What needs to be well captured for our
consideration in this case at hand, is that, it is trite law
that, in the cases involving a continuing breach of
contract, the day to be reckoned is the day on which the
breach ceases.
As I stated herein above, each successive breach,
for each months when the respective rental charged
remained unpaid, constituted a cause of action. That
being said, even if we were to argue and agree with Mr
Msemwa, that the lease agreements commenced on the
1st of December 2014, and not 1st of January 2015, still,
since the rental charges were to be paid on a monthly
basis, and, given that the last instalment was to be made
payable on the 30th of November 2015, still Mr Msemwa's
arguments would not have grabbed the trophy or made a
headway in Court.
The reason for the above finding is simple. Under
the doctrine of continuing breach, which the Plaintiff
rightly resolved that it applies to this case, this suit at
hand was filed on 15th February, 2021. It means,
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therefore, that, the last cause of action was 30th
November 2015 and, counting from that period to the
time when the suit was filed, i.e., 15th February 2021, the
Plaintiff was still well within time. It means that, the
curtains were to fall on 30th November 2021.
In view of the above observations and findings,
this Court finds that the suit has been instituted well
within time and section 7 of the law of limitation Act, Cap,
89 R.E 2019, does apply to this suit., \
In the upshot, this Court settles for 'the following
orders:
1. The preliminary , objection is
hereby overruled with costs to
jiw"-.
the Plaintiff;, \
z 2? The suit is to proceed to its next
x ' stage of hearing as it may be
\ \scheduled by the Court.
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It is so ordered.
DATED at DAR-ES-SALAAM, this 13th AUGUST 2021
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