IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MUSOMA SUB-REGISTRY
AT MUSOMA
CIVIL CASE NO. 1426/2024
REFERENCE NO. 20240125000001426

BETWEEN

EMPEROR TREASURE COMPANY........................................................ PLAINTIFF

AND
SERENGETI DISTRICT COUNCIL................................................. Ist DEFENDANT
THE ATTORNEY GENERAL............................................................ 2nd DEFENDANT

Date of Last Order: 21/02/2024

Date of Ruling: 14/03/2024

RULING OF THE COURT

Kafanabo, J.:

Before this court is a suit for breach of contract in which the plaintiff claims
that the 1st Defendant had breached a consultancy contract. Plaintiff, as per
the plaint, prays for a declaration that the 1st defendant breached the
fundamental terms and conditions of the consultancy service contract
because of the failure to discharge her obligations.

The plaintiff also prays for an order for payment of Tanzania Shillings Four
Billion Thirty Million Eight Hundred Sixty-Eight Thousand Two Hundred
Eighty-Nine Only (TZS. 4,030,868,289/=) being payment for an accumulated
amount of money arising from the interest of the unpaid principal sum, an
order for payment of Tanzania Shillings Ninety-Six Million One Hundred Ten
Thousand Three Hundred Fifty-Three and Forty Cents Only (TZS.

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96,110,353.40), being amount for the unpaid services rendered and costs of
the case.

It is also alleged in the plaint that the plaintiff was employed by the 1st
defendant to provide consultancy services for the fee of 9.8% of the total
sum of the construction costs amounting to TZS. 3,387,755,105.00,
miscellaneous expenses amounting to TZS. 5,400,000.00 and the arrears of
the accumulation of 2% of the unpaid amount from the instance of the
discharge of the contractual obligations. This was according to the contract
for the provision of technical services in the OPD Block entered on 21st
February 2009.

Moreover, it is averred in paragraphs 8 and 9 of the plaint that the contract,

subject matter of this suit, was terminated orally by the 1st Defendant on 3rd
July 2017.

The defendants, in their first response to the plaintiff's claim, filed a notice
of preliminary objection on points of law to the effect that:

1. The suit is premature for the failure of the plaintiff to exhaust

dispute resolution as provided in the contract;

2. The suit is bad in law for being time-barred.

The suit was set for mention on 21st February 2024 for the court to issue
necessary orders. The plaintiff was represented by Mr. Lameck Erasto,
learned Advocate, and Mr. Kitia Turoke learned State Attorney, entered an
appearance for the defendants.

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It followed that the learned counsel for the defendants prayed to withdraw
the 1st limb of the preliminary objection and prayed to argue the 2nd limb of
the preliminary objection that'the suit is bad in law for being time bad'. This
Court, after consultation with the parties ordered that the preliminary
objection be argued by way of written submissions. Both parties duly
complied with the schedule of filing submissions.

Supporting the preliminary objection, the learned counsel for the defendants
submitted that, first, the preliminary objection they raised is a pure point of
law relying on the case of Mukisa Biscuits Manufacturing Company
Limited vs West End Distributors Ltd (1969) EA 696. Second, the
parties are bound by their pleadings as ruled in the case of Ernest
Sebastian Mbele vs Sebastian Sebastian Mbele & Others (Civil
Appeal 66 of 2019) [2021] TZCA 168 (4 May 2021) and Makoni J.B
Wassanga and Joshua Mwakambo & Another [1987] TLR 88 given
that it is the plaintiff who stated that the contract was terminated on
03/07/2017.

On merits and substance of the preliminary objection the learned counsel for
the defendants submitted that in the contents of paragraphs 8 and 9 of the
plaint, the plaintiff stated that the contract was terminated orally, by the 1st
Defendant, on the 3rd day of July 2017, and on the material time she was
claiming a total of TZS 96,110,353.40.

It was the defendants' submission that the cause of action arose on

03/07/2017 when the contract was orally terminated. However, the plaintiff
filed this case on 25th January 2024. By computing the period from the 3rd

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day of July 2017 to the 25th of January 2024, it is clear that the instant case
is out of time for more than six months. The same was supposed to be filed
not later than July 2023 which was within the six years which is the time
limit for instituting cases found on the contract as provided under Item 7,
Part 1 to the Schedule of the Law of Limitation Act, Cap. 89 R.E 2019.

The learned counsel for the defendants further submitted that it is obvious
that the suit has been filed in court after six years from the date of
termination of the contract which is beyond the time prescribed in Item 7 of
Part 1 to the Schedule of the Law of Limitation Act, Cap. 89 R.E 2019.
The cases of M/S. P & O International Ltd vs the Trustees of Tanzania
National Parks (TANAPA), Civil Appeal No. 265 of 2020 (Unreported)
and Thomas Ngawaiya vs the Attorney General and 3 others, Civil
Case No. 177 of 2013 (unreported) were cited in augmenting the
submission.

Responding to the defendants' submissions, the learned counsel for the

plaintiff submitted that the preliminary objection raised by the defendants is
not a pure point of law because according to the plaint there is a continuing
breach. Citing the case of Cotwo (T) Ottu Union and Another v. Hon.
Iddi Simba, Minister Industries and Trade [2002] TLR 88 and the
Mukisa Biscuits (supra).

Moreover, the plaintiff's learned counsel, in his submissions, raised the issue
that the 1st defendant did not issue a written notice of termination. It is the
submission of the learned counsel for the plaintiff that to date no reason for
termination was stated and the oral termination of the contract, as stated in

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paragraph 8 of the plaint, did not state a reason for termination and thus
there is a continuing breach of the contract.

Likewise, the plaintiff's counsel submitted that where there is a continuing

breach, the provisions of section 3(1) and Item 7 of Part 1 to the Schedule
of the Law of Limitation Act, Cap. 89 R.E 2019 do not apply. The case
of Independent Power Tanzania Ltd and Another v. Standard
Chartered Bank and 2 Others, Civil Case No. 60 of 2014 (unreported)
was cited in support of the submission.

It was the plaintiff's counsel's further submission that clause 3.3 of the
contract barred the parties from disclosing any material facts relating to a
contract and that Item 7 of Part 1 to the Schedule of the Law of Limitation
Act, Cap. 89 R.E 2019 applies in a situation where there is no specific term
of the contract barring the parties as such. It was also the plaintiff's
submission that the same does not apply where there is a continuing breach
relying on the case of Radi Services Ltd v. Stanbic Bank (T) Ltd, Civil
Case No. 260/2020.

Taking into account the parties' submissions, this court now determines the
issue of whether the suit before the court is time-barred.

This court is cognizant that both parties do not dispute the fact that the
plaintiff, in paragraph 8 of the plaint, averred that the 1st Defendant
terminated the contract orally on 3rd July 2017. It is also not in dispute that
the time limit within which to institute a suit based on breach of contract is
six years from the date of accrual of the cause of action as per sections 4,

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5, and Item 7 of Part 1 to the Schedule Law of Limitation Act, Cap.
89 R.E 2019.

The only dispute discerned from the submissions of the parties is whether
the oral termination of the contract amounts to continued breach as argued
by the plaintiff. This submission by the plaintiff will not detain this court,
because the issue of continuing breach, as correctly argued by the counsel
for the defendants, is not part of the pleadings. That is, continuing breach,
was not pleaded in the plaint instituting the suit.

The plaintiff raised the issue of continuing breach by way of submissions

with no basis in the plaint. As rightly argued by the counsel for the
defendants, the law is very clear that parties are bound by their pleadings
no submission or evidence will be sustained if it is not about the matter
pleaded in the relevant pleadings.

There is a plethora of authorities as regards parties being bound by their

pleadings (see the case of Ernest Sebastian Mbele supra). Moreover, In
the case of Astepro Investment Co. Ltd vs Jawinga Co. Ltd (Civil
Appeal 8 of 2015) [2018] TZCA 278 (24 October 2018), the Court of
Appeal observed that:

As a result, the procedure offended the cherished principle in

pleading that, the proceedings in a civil suit and the decision

thereof, has to come from what has been pleaded, and so goes

the parlance 'parties are bound to their own pleadings'. See:

Nkulabo Vs Kibirige [1973] EA 1Q2, Peter Ng'homango vs the Attorney

General, Civil Appeal No. 214 of 2011, Sean TAN Tours Limited Vs the

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 Catholic Diocese of Mbuiu, Civil Appeal No. 78 of 2012 (both
unreported) and James Funge Ngwagiio Vs the Attorney General
[2004] TLR 161

Also in the case of Paulina Samson Ndawavya vs Theresia Thomasi

Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 (11 December
2019) the Court of Appeal held that:

'The other remark which we find ourselves compelled to make relates

to pleadings. In doing so we cannot do better than reiterate what we
said in James Funke Gwagiio vs. Attorney General [2004] TLR 161
whereby we underscored the function of pleadings being to

put notice of the case which the opponent has to make test he

is taken by surprise. From that same decision we reiterated

another equally important principle of law that parties are

bound by their own pleadings and that no party should be

allowed to depart from his pleadings thereby changing his

case from which he had originally pleaded.'

Therefore, in light of the above authorities, and since the alleged continuing
breach, as raised by the counsel for the plaintiff, departs from the pleadings,
specifically the plaint in this suit, the same shall not be considered by this
court in determining the preliminary objection raised by the defendants.
Further, the cases (Independent Power Tanzania Ltd (supra) and Radi
Services Ltd (supra) cited in that respect by the plaintiff are irrelevant in
determining the preliminary objection before this court.

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The plaintiff's counsel was also of the view that the preliminary objection
raised is not a pure point of law as it requires testimony to be ascertained
relying on the cases of Cotwo (T) Ottu Union (supra) and Mukisa
Biscuits (supra).

This court, by considering the plaint in its entirety and the submissions of
both parties, gathers that the parties' major point of contention is the
averment of the plaintiff in paragraph 8 of the plaint which states that the
contract, subject matter of this suit, was terminated orally by the 1st
Defendant on 3rd July 2017. Based on that averment, the defendants are of
the view that the suit is time-barred.

It is trite law that the issue of limitation of time in the institution of a suit is
a point of law if it does not call for evidence, or evidential analysis. In
determining whether the preliminary objection in this case is a pure point of
law or not, the principal document to be referred to is the plaint itself, being
a pleading instituting a suit.

This court after a thorough analysis, with respect, disagrees with the counsel
for the plaintiff on his submission that the preliminary objection raised is not
a pure point of law. The reason is that the date of termination is crystal clear
in paragraph 8 of the plaint and thus does not require any further
ascertainment as suggested or at all. This means that the preliminary
objection raised meets the tests stated in the cases of Cotwo (T) Ottu
Union (supra) and Mukisa Biscuits (supra).

The plaintiff similarly, in his submissions, raised the issue that clause 3.3 of
the contract barred the parties from disclosing any material facts relating to

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a contract until after the expiry of two years after the expiry of the term of
the contract. Therefore, it was submitted by the counsel for the plaintiff that
Item 7 of Part 1 to the Schedule of the Law of Limitation Act, Cap. 89
R.E 2019 applies in a situation where there is no specific term of the
contract barring the parties as such.

However, the counsel for the plaintiff did not cite any law supporting his
submission in that regard. Conversely, it is trite law that a contract cannot
outlaw a statute. In the case of Shinyanga Regional Trading Co. Ltd
and Another v. National Bank of Commerce 1997 TLR 78, the Court
of Appeal observed that:

private agreement cannot replace the dear terms of the

taw of the land. No one is allowed to contract out of the lav/'

Therefore, whatever clause of the contract they (the plaintiff and the 1st
defendant) had in the said consultancy contract could not bar the operation
of the statute, and thus could not prevent the plaintiff from instituting a suit
upon breach of contract. It follows that the confidentiality clause in a
contract cannot impede an operation of the law of limitation. The same
cannot stop time from expiration or running out from the date of the accrual
of the cause of action. Therefore, the submission of the plaintiff in this trait
is rejected.

Turning to the timelines in the present case, as above indicated and as

deduced from paragraph 8 of the plaint, the contract was terminated on 3rd
July 2017 and the case was filed on 25th January 2024. Item 7 of Part 1 to
the Schedule of the Law of Limitation Act, Cap. 89 R.E 2019 provides

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for six years being the time limit within which a suit founded on contract may
be instituted. Computing from the date the cause of action arose (i.e.
03/07/2017), six years had elapsed on 2nd July 2023. This means that the
plaintiff had to institute a suit before 3rd July 2023. Therefore, from the facts
as stated in the plaint, especially in paragraphs 8 and 9, this court finds that
the suit is time-barred.

It follows that section 3(1) of the Law of Limitation Act, Cap. 89 R.E
2019 provides that:

"Subject to the provisions of this Act, every proceeding described in

the first column of the Schedule to this Act and which is instituted
after the period of limitation prescribed therefore opposite

thereto in the second column, shall be dismissed whether or

not limitation has been set up as a defence". Emphasis added.

Therefore, as observed above, this suit was instituted after the prescribed
period of limitation as per Item 7 of Part 1 to the Schedule of the Law of
Limitation Act, Cap. 89 R.E 2019 had lapsed. The consequence for a
time-barred suit, as per section 3(1) above, is a dismissal of the same (also
see the observation of Court of Appeal in M/s. P & O International Ltd
v. The Trustees of Tanzania National Parks (TANAPA) (Civil Appeal
265 of 2020) [2021] TZCA 248 (9 June 2021)).

In light of the foregoing, and given the circumstances of this case, the
preliminary objection that the suit is time-barred is upheld. The suit is hereby
dismissed for being time-barred.

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Given the nature of the matter, no order as to costs. It is so ordered.

Dated, signed, and sealed at Musoma this 14th day of March 2024.

K. I. Kafanabo
Judge
The ruling has been delivered in the presence of Mr. Lameck Erasto,
Advocate for the plaintiff, and Messrs Aneisius Kamugisha, and Abdallah
Makulo, and Ms. Saum Mfulu, State Attorneys for the defendants.

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