IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA
fCORAM: LILA. 3.A.. KOROSSO. 3.A. And MWANDAMBO, 3.A.^
CIVIL APPEAL NO. 331 OF 2019
1. NBC LIMITED.... . .1st APPELLANT
2. IMMMA ADVOCATE 2nd APPELLANT

VERSUS
BRUNO VITUS SWALO RESPONDENT

(Appeal from the judgment and decree of the High Court

of Tanzania at Mbeya)

(Levira. 3.^
dated the 11th day of December, 2018
in
Civil Case No. 14 of 2016

JUDGMENT OF THE COURT

12th February & 20th April,2021

LILA. J.A:

The respondent, Bruno Vitus Swalo, was a successful party in a suit

he instituted in the High Court (Mbeya District Registry) claiming for

payment of TZS 200 Million being mesne profit and loss of income arising

out of dispossession of a house on Plot No. 16 block "A" Sisimba area

Mbeya (the suit house) and TZS 250 Million being general damages

resulting from mental agony, embarrassment and frustration. The claim for

mesne profit was found not established and rejected. He was awarded TZS

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100 Million as general damages. The appellants were aggrieved. They are,

in this appeal, challenging that award.

As the matters stood at the trial, the respondent turned out to be the

highest bidder in an auction to sell the aforesaid house conducted by MEM

Auction Mart on the authority of the second appellant who, in turn, also

acted as an agent of the first appellant. That was on 6/7/2007. A transfer

of ownership to his name was duly effected by the appellants. As it were,

on 5/9/2007, the same house was sold to Meta P. Meta who happened to

be a tenant in that house. The sale of the suit house was a result of one

Michael Richard Ngende who had executed a mortgage deed in favour of

the 1st appellant to secure a loan of TZS 20 Million failure to service it.

Sometimes later, ownership of the suit house was a subject of

discussion in two cases which were instituted in the High Court Land

Division (Dar es Salaam Registry). These cases were Land Case No. 246 of

2009 and 92 of 2008. They were subsequently consolidated and tried as

one case, that is Consolidated Land Cases No. 246 of 2009 and 92 of 2008.

Having noted that the suit touched on the suit house, the respondent

applied and was joined as a party in the proceedings. Michael Richard

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Ngende was unsuccessful as the respondent was declared the rightful

owner of the house. Consequently, Meta P. Meta was ordered to give

vacant possession of the house. With that assurance that he was the

owner of the house, the respondent instituted Civil Case No. 14 of 2016 on

3/1/2016 against the appellants, the subject of this appeal. The

respondent's claims were for:

(i) Payment of TZS 200 Million being mesne profit and loss

income from 6th July, 2007 to 1st July 2016, when the

plaintiff was deprived of possession of his house on Plot No.

16 Block "A" Sisimba Area Mbeya.

(ii)Payment of TZS 250 Million being general damages for

mental argon, embarrassment and frustrations suffered by

the plaintiff.

Its noteworthy that before the hearing of the main suit commenced,

the appellant unsuccessfully raised a notice of preliminary objection on

points of law that the suit was res judicata, time barred and lack of cause

of action. The objection was overruled and the High Court proceeded with

the hearing of the suit on merit. At the end, the respondent's claim for

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mesne profit was found not proved on the ground that the house was

occupied by Metta P. Metta and not by the 1st and 2nd appellants. The

respondent was, however, comforted by the award of TZS 100 Million as

general damages for the sufferings due to frustration, embarrassment,

torture and loss of time and income.

Aggrieved with the High Court decision, the appellants lodged an

appeal predicated on seven grounds which read thus:-

1. That the learned trial judge erred in law and fact by holding

that the matter was not res judicata

2. That the learned trial judge erred in law and fact by holding

that the matter was not time barred.

3. That the learned trial judge erred in law and fact by

entertaining a land matter registered as a civil case.

4. That the learned trial judge having held that the defendants

(now Appellants) had neither been in possession nor

enjoying proceeds o f the immovable property in dispute and

that it was Metta P Metta who was in full o f Control o f the

property during the whole period, erred in law and fact by

 ordering the Appellants to pay general damages to the

respondent

5. In the absence o f evidence o f loss sufferedthere was no

justification for awarding the respondent TZS

100,000,000.00 as general damages

6. Even if there was justification, the amount awarded as

general damages is exhibitory on the high side.

7. That the decree is vague and non-executable as is not dear

who would pay the awarded general damages and whether

jointly, severally or jointly and severally.

At the hearing of the appeal, the appellants were represented by Mr.

John Laswai while the respondent had the services of Mr. Godwin Mussa

Mwapongo, both learned counsel, respectively.

Both sides filed written submissions and made some few elaborations

at the hearing before us. However, bearing in mind the course we have

taken in resolving the appeal, we are of the view that reference to the

parties' submissions in full will not serve any useful purpose. We shall, in

5
the circumstances, revert to their respective submissions relevant to the

issue under our consideration only.

Upon our perusal of the record, the memorandum of appeal and both

oral and written submissions thereof by both sides, it is plain that the

respondent purchased the suit house in an auction conducted by MEM

Auction Mart on the authority of the 2nd appellant. It was not disputed that

the 2nd appellant was an agent of the 1st appellant. It therefore goes

without saying that MEM acted on behalf of the 1st respondent too. From

these uncontroverted facts, it stems out clearly that the respondent bought

the disputed house from the 1st and 2nd appellants and there was no any

outstanding claims. Looking at the nature of the transaction, it is evident

that the parties entered into a legally recognized sale agreement. That

contract was in accordance with section 10 of the Law of Contract Act,

Cap. 345 R. E. 2002 (now Cap. 345 R. E. 2009) (the LCA) which provides,

in part, that: -

"10. AH agreements are contracts if they are made

by the free consent o f parties competent to
contract, for a lawful consideration and with a
 lawful object, and are not hereby expressly declared
to be void."

The parties had the capacity to enter into a valid contract, for

according to the pleadings, they are legal persons with capacity to sue or

be sued. They were competent to contract in terms of section 11 of the

LCA.

What other factors cement the nature of the relationship between the

parties? We have also considered the issues framed to which both parties

were in agreement. They are:

"2. Whether the defendants handed over the house

on Plot No. 16 Block "A" Sisimba Mbeya to the
plaintiff after public auction conducted on &h July,
2007.

2. Whether the defendants intended to defraud the

plaintiff when offered for sale to another person the
house already sold to the plaintiff.

3. Whether the plaintiff is entitled to mesne profit

from &h July, 2007 to 1st July, 2016.

4. Whether the plaintiff is entitled to general

damages.

5. To what reliefs the parties are entitled."

 It is evident from the record therefore that the respondent's suit at

the HighCourt was founded on the contract of sale. The sale agreement,

we hasten to say, falls under the provisions of Section 3 (1) of theSale of

Goods Act, Cap. 214 which states:

"3 (1) A contract o f sale o f goods is a contract

whereby the seller transfers or agrees to transfer
the property in goods to the buyer for a money
consideration called price, and there may be a
contract o f sale between on part owner and
another."

In terms of section 5 (1) of the Sale of Goods Act, Cap. 214 R. E.

2002 the parties are at liberty to reduce the agreement into writing or not.

The contract may therefore be written or unwritten. That provision states:

”5(1) Subject to the provisions o f this Act and

o f any other written law in that behalf, a contract of
sale may be made in writing (either with or without
seal) or by word o f mouth, or partly in writing and
partly by word o f mouth or may be implied from the
conduct o f the parties."

In the present case, it was not disputed that, upon payment of the

bid amount, the appellants went further and transferred ownership of the

8
suit house into the respondent's name. Each party performed part of its

obligation under the agreement. The transaction involving the parties to

this suit was therefore a contract of sale of the suit house.

The above laid foundation is with a purpose. The objective is to

address the issue whether or not the suit instituted by the respondent

against the appellants was time barred as complained by the appellant in

ground two (2) of appeal. The reason for considering this issue first is

simple. It is that courts are enjoined not to entertain matters which are

time barred. Limitation period has an impact on jurisdiction. Courts lack

jurisdiction to entertain matters for which litigation period has expired, (see

John Barnabas vs Hadija Shomari, Civil Appeal No. 195 of 2013 and

Barclays Bank (T) LTD vs Jacob Muro, Civil Appeal No. 357 of 2019

(both unreported). In John Barnabas vs Hadija Shomari, (supra) the

Court pronounced itself thus: -

"Consequently, in fine with what we have

endeavoured to traverse above, we hold that the
Ward Tribunal of Kinyangiri, lacked
jurisdiction to entertain the land dispute
which was lodged by the respondent because
it was time barred. As a result, the proceedings
 before the Ward Tribunal and those subsequent
thereto,, were nullity and we nullify them."
(Emphasis added)

[See also Mayira B. Mayira and Four Others vs Kapunga Rice

Project, Civil appeal No. 359 of 2019 and The D.P.P. vs Bernard

Mpangala and Two Others, Criminal Appeal No. 28 of 2001 (both

unreported).

In ground two (2) of appeal, the learned trial judge is being faulted

for not holding that the matter was time barred. As laid bare above, the

appellants fronted the objection before the matter was heard on merit and

was overruled. As if that was not enough, the issue of limitation came up

again in the appellants' final submissions whereupon the learned judge

considered it again and maintained her earlier stance that it was not time

barred. With due respect, it was not right for the learned judge to entertain

issues which she had already determined in a ruling overruling the

preliminary objection. She was therefore functus officio. Be it as it may, we

shall leave the matter at that without more. Fortunately, both counsel were

agreed, and rightly so in our view, that it was improper to raise that issue

twice before the same court. The right course to be taken by the

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appellants if they were aggrieved by the ruling of the High Court overruling

the preliminary objection was to appeal. We leave the issue at that with a

caution to the learned counsel for the appellants that such practice should

be avoided.

In considering and overruling the objection that the suit was time

barred the learned judge, in her judgment, stated that: -

'!'Another issue is whether or not the matter at

hand is time barred. In his submission the learned
advocate for the defendant insisted that the plaintiff
and the defendants entered into a contract for sale
o f house on &h July, 2007 but, the suit was filed on
2 J d September, 2016. Thus the learned advocate
was adamant that the suit offends the provisions o f
Part 1, item 7 o f the Schedule to the Limitation act,
Cap. 89 which sets as requirement that the suit
which are founded on contract should be filed
within six (6) years. I suppose the learned advocate
misdirected herself due to the facts apparent on the
record. The parties are no longer fighting about
ownership o f the suit premise since the same was
finally and conclusively determined by this court at
Dar es Salaam vide Consolidated Land Cases No.

li
 2009 and No. 92 o f2008. Rather the suit is tortious
claim rooted from the alleged fraudulent acts o f the
defendants. Be as it may, the plaintiff could by no
way sue for mesne profit and loss o f income before
being declared as a sole owner o f the suit land by
competent authority. In the same lane, the ground
can nowhere stand."

It is plain that the learned judge was not ready to accept that the suit

was founded on contract. She was inclined that it was founded on tort. We

have, elaborated above why the suit was founded on contract. We wish to

emphasize that settled law is to the effect that parties are bound by their

pleadings. There is a plethora of authorities to that effect including Scan

Tan Tour Ltd vs The Catholic Diocese of Mbulu, Civil Appeal No. 78 of

2012 (unreported), James Funke Gwagilo vs Attorney General [2004]

TLR 161, Lawrence S Surumbu Tara vs The Hon. Attorney General

and 2 Others, Civil appeal No. 56 of 2012, Charles Richard Kombe t/a

Building vs Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012

(both unreported). And, in the recent case of Barclays Bank (T) Ltd vs

Jacob Muro, Civil Appeal No. 357 of 2019 (unreported), the Court cited

with approval a passage in an article by Sir Jack I. H. Jacob Titled "The

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Present Importance of Pleadings/' published in Current Legal problems

(1960) at page 174 that: -

"As the parties are adversaries, it is ieft to

each one o f them to formuiate his case in his own
way, subject to the basic rules o f pleadings... For the
sake o f certainty and finality, each party is bound
by his own pleadings and cannot be allowed to raise
a different or fresh case without due amendment
properly made. Each party thus knows the case he
has to meet and cannot be taken by surprise at the
trial. The court itself is as bound by the pleadings o f
the parties as they are themselves. It is not part o f
the duty o f the court to enter upon any inquiry into
the case before it other than to adjudicate upon the
specific matters in dispute which the parties
themselves have raised by the pleadings. Indeed,
the court would be acting contrary to its own
character and nature if it were to pronounce any
claim or defence not made by the parties. To do so
would be to enter upon the realm o f speculation."

The import of the passage is in the same footing with the expression

found in Morghan's Law of Pleading in India, 10th Edition at page 25 that: -

13
 "The Court cannot make out a new case
altogether and grant relief neither prayed for in the
plaint nor flows naturally from the grounds of
claim stated in the plaint "(Emphasis added)

Guided by the above solid principle, we shall consider the

respondent's pleading, that is the plaint, in our attempt to determine the

nature of the claims the respondent presented to the High Court for

adjudication and as to the time when the cause of action accrued.

Our starting point is paragraphs 5, 6, 7, 8, 9 and 10 of the plaint in

which the respondent (then plaintiff) averred as under: -

"5. That on 6thJuly, 2007, the 1st and 2nd defendant

through the service o f MEM Auction Mart by way of
Public Auction sold a house on Plot No. 16 Block
"A" Sisimba area Mbeya to the plaintiff Bid Note
and deposit Slip are hereto attached so as to
form part o f this Plaint and are marked as
annexture "Bl"and nB2" respectively.

6. That the defendants transferred the property to

the names o f the plaintiff's and handed over all the
ownership documents and subsequently the plaintiff
became the refastened owner copies o f Transfer
and Title Deed are herewith attached so as to form
part o f this plaint and are marked annexture "B3"
and "B4" respectively,

7. That on 5th September, 2007, the 2nd Defendant

with intent to defraud the plaintiff and without
Plaintiff's knowledge, offered for sale Plot No. 16
Block "A" Sisimba Area Mbeya to another person
called Metta P. Metta on a private contract, despite
the fact that the said property had been already
sold to the Plaintiff by way o f Public auction. Copy
o f letter from the 2nd Defendant and letter o f Metta
P. Metta Advocate are hereto attached and marked
annexture J1 and 32 respectively forming part o f
this Plaint.

8. That as a result o f what is stated in paragraph 7

above the said Metta p. Metta started to demand
the documents and took possession o f the said
house and proceeded to sue the Defendants.

9. That on 17th July, 2008 the defendants appeared

before, Justice Nchimbi (as he then was) in land
Case No. 92 o f 2008 between the said Metta P.
Metta as Plaintiff and 1st and 2nd Defendants as
defendants, they did not inform the Honourable
Judge that the property belongs to the Plaintiff
instead they conceded to the prayer o f status quo

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 ante, and did not bother to inform the Plaintiff
about the case until on 27th January, 2009 when the
Plaintiff after discovering that the order has been
issued by High Court applied to be joined. The
order o f the Court is hereto attached and forms part
o f this Plaint and is marked as annexture "B5",

10. That as a result o f the sale o f the property to

the said Metta P. Metta the plaintiff was denied
possession o f his house until 1st July, 2016 when
the said Metta P. Metta was removed by the court
and put possession o f the property in the hands o f
the Plaintiff. The eviction order is hereto attached
so as to form part o f plaint and is marked as
annexture "B6"."

Read closely, in the foregoing paragraphs the respondent's (then

plaintiff) claim was that the appellants (the defendants) were in breach of

the sale agreement between them and him when they sold the house

which they had already sold it to him to another person (Metta P. Metta).

This, again, makes it explicitly clear and reaffirms that the suit was

founded on contract.

As to when the cause of action arose, paragraph 12 of the plaint

speaks it loud: -
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 "12. That the cause of action arose at Mbeya
when the defendant failed to give possession
to the Plaintiff; after public auction and
continued every day untii 1st July, 2016 when the
plaintiff gained possession as indicated in the notice
dated 19th August, 2016 annexed hereto as
annexture "B7" forming part of this plaint
"(Emphasis added)

This was the respondent's own averment in the plaint to which he is

bound. Engaging in a search of another date when the cause of action

arose would be improper as it will amount to putting such words into the

respondent's mouth. He is the one better placed to know it. We are

similarly bound by his words. More so, we are, on the authorities above,

not permitted to make our own case.

Guided by the principle that parties are bound by their own pleadings

and on close examination of the respondent's averments in paragraphs 5

and 12 of the plaint, we are convinced that the respondent was denied

possession of the suit house on 6th July, 2007 and the cause of action

therefore arose then.

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 Having been satisfied that the suit was founded on contract and the

cause of action arose on 6/7/2007, the question lingering and calling for

our determination is whether or not the learned judge was right to hold

that the suit was not time barred?

Our resort is to the provisions of item 7 of Part 1 of the Schedule to

the Limitation Act, Cap. 89 of Revised Edition 2002 (now R. E. 2019) (the

LLA) which sets a time limit on a suit founded on contract to be six (6)

years from the date the cause of action accrued. Reckoning from 6/7/2007

when the cause of action arose, a period of six years lapsed on 5/7/2013.

That means the suit was late by over three years. The trial High Court, on

the authorities above cited, lacked jurisdiction to determine the suit. And,

with respect, had the learned judge properly directed her mind she would

have realized that fact and in terms of section 3(1) of the LLA would have

sustained the preliminary objection in that respect and dismissed the suit.

We therefore find ground two (2) of appeal meritorious and allow it.

With the finding that the High Court lacked jurisdiction to entertain

the suit, we think determination of the rest of the grounds of appeal will

18
not serve any useful purpose other than being a mere academic exercise.

We shall not therefore delve onto them.

For the foregoing reason, we allow the appeal and since the suit was

time barred, we hereby quash the proceedings and the judgment of the

High Court and also set aside the consequential orders for being a nullity.

The appellants shall have costs in both this Court and in the High Court.

DATED at DAR ES SALAAM this day of April, 2021.

S. A. LILA
JUSTICE OF APPEAL

W. B. KOROSSO
JUSTICE OF APPEAL

L. J. S. MWANDAMBO
JUSTICE OF APPEAL

The Judgment delivered on this 20th day April, 2021, in the presence
of Ms. Rashida Jamaldin Hussein, learned counsel appeared for the
appellants and Mr. Godwin Mussa Mwapongo, learned counsel appeared for
*' ■ , of the original.