ALFONS MOHAMED CHILUMBA v DAR ES SALAAM SMALL INDUSTRIES COOPERATIVE SOCIETY 1986 TLR 91 (HC)

ALFONS MOHAMED CHILUMBA v DAR ES SALAAM SMALL INDUSTRIES COOPERATIVE SOCIETY 1986 TLR 91 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

B

CIVIL APPEAL 16 OF 1985

Flynote

Law of Limitation Act - Acknowledgement of claim after the expiry of period of limitation

prescribed - Whether effectual - S.27 and 28(4) Law of Limitation Act, 1971

-Headnote

C The plaintiff sued the defendant claiming arrears of salary. The suit was dismissed on a

preliminary point that it was time-barred. On appeal the plaintiff contended that the lower

court erred in that it non-directed itself to an D acknowledgement that had been made by the

defendant employer. The acknowledgement was made after the expiration of the period within

which the claim could be instituted.

E Held: by virtue of s.28(4) of the Law of Limitation Act, 1971, no acknowledgement shall be

operative for the purposes of s.27 if it is made after the expiration of the period of limitation

prescribed for the proceeding in respect of the right of action to which the acknowledgement

relates.

Case Information

F Appeal dismissed.

No case referred to.

[zJDz]Judgment

G Mapigano, J.: This is a claim for arrears of salary. The learned resident magistrate dismissed

the suit on the preliminary point that it was time-barred, citing the provisions of Order 7 rule 6

of the Civil Procedure Code, section 3(1) of the Law of Limitation Act, 1971 and article 7 of the

First Schedule to that Act. The plaintiff Alfons Mohamed Chilumba is dissatisfied and has

lodged this appeal, contending that the learned magistrate erred in that he non-directed H

himself to an acknowledgement that had been made by the defendant employer on 15 June

1984. It is common ground that the period of limitation in relation to this action is six years.

I In my view the learned magistrate cannot be faulted. Order 7 rule 6 C.P.C. provides that

where the suit is instituted after the

1986 TLR p92

MAPIGANO J

A expiration of the period prescribed by the law of limitation, the plaint shall show the ground

upon which exemption from such law is claimed. In other words, where but for some ground of

exemption from the law of limitation, a suit would prima facie be barred by limitation, it is

necessary for the plaintiff to show in his plaint such ground of exemption. B If no such ground

is shown in the plaint, it is liable to be rejected under rule 11(c) of the same Order.

Similar provisions are to be found in the Indian Code of Civil Procedure and the two learned

commentators Chitaley and Rao make the following observation:

C The plaintiff will not be allowed to show the ground of exemption at the trial by putting

in evidence any documents such as acknowledgements of liability. But the Court may, save in

exceptional circumstances, allow the plaint to be amended by making the necessary allegations.

It is sufficient that the ground of exemption is apparent on the face of the plaint. It is not

necessary that D the plaint should specifically, and in so many words, claim the ground of

exemption.

E I like and will adopt this exposition. I am not quite satisfied that acknowledgement as a

ground of exemption from the law of limitation is sufficiently pleaded or shown in the plaint in

this case. And for the reason I am going to give presently, it would have been pointless for the

learned magistrate to allow the plaint to be amended in that regard. F

By the appellant's own pleading, vide para 7 of the plaint, his employment with the respondent

was determined on 30 October, 1977. I take that as the date on which the cause of action arose

i.e. the date from which the period of limitation G started to run. He instituted the proceeding

on 28 June, 1984 i.e. over six and half years after the accrual of the cause of action. As observed,

he now contends that the period of limitation should commence from 15 June 1984 the date on

H which the respondent wrote him a letter marked annexure K, which he describes as an

acknowledgement of the claim.

We should advert to the provisions of the Law of Limitation Act, 1971. Under section 27(3) of

that Act, where a right of action has accrued to recover a debt or the pecuniary claim and the

person liable or accountable therefore acknowledges I the claim, the right of action in respect

of such debt or pecuniary claim is deemed to have accrued on, and not before, the date of the

acknowledgement.

1986 TLR p93

A However, by section 29(4) of the Act, no acknowledgement shall be operative for the

purposes of section 27, if it is made after the expiry of the period of limitation prescribed for the

proceeding in respect of the right of action to which the acknowledgement relates.

The letter in question strikes me as vague. Quite possible that it contains a sufficient

acknowledgement within the meaning B of section 27 of the Law of Limitation Act. Even so, it

is ineffectual under law, for it is evident that at the date the said acknowledgement was made,

the 15 June 1984, the claim so acknowledged had already become barred by time with effect

from 30 October, 1983.

C In the circumstances I am constrained to uphold the decision of the lower court and dismiss

the appeal. As the respondent did not appeal I make no order as to costs.

Appeal dismissed. D

1986 TLR p93

E