NATIONAL MILLING CORPORATION v MUBIGI WAJANGI 1986 TLR 37 (HC)

 

NATIONAL MILLING CORPORATION v MUBIGI WAJANGI 1986 TLR 37 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

4 July, 1987

CIVIL APPEAL 4 OF 1986 B

Flynote

Limitation - Law of Limitation - Suit based on contract - Cause of action arose in 1976 - Suit

filed in 1984 - Criminal proceedings instituted against complainant relating to the subject-matter

of the contract in 1979 - Acquittal - When cause of C action arose - When time began to run.

-Headnote

The appellant had a judgment delivered against it in favour of the respondent in respect of a

contract for milling maize into flour on behalf of the appellant. In 1976 the appellant refused to

pay the respondent for services rendered alleging that D the former had stolen some of the

maize-flour. In 1979 a criminal case was filed against the respondent in which he was acquitted.

In 1984 the respondent filed a suit against the appellant claiming payment for services rendered

in 1976. The E appellant argued that the suit was time-barred because the period of limitation

began to run in 1976.

Held: (i) It was only after the acquittal and when appellant still refused to pay that the cause of

action arose and only then did the period of limitation start to run; F

(ii) as the acquittal was in 1979 and the suit was filed in 1984, it was within six years and

therefore the suit was in time and not time-barred.

Case Information

Appeal dismissed. G

No case referred to.

Rugarabamu, for the appellant H

Butambala, for the respondent

[zJDz]Judgment

Mwalusanya, J.: The appellant corportion National Milling Corporation (Musoma Branch) had a

judgment delivered against it by the District Court of Musoma in the sum of Shs. 194,346/=. The

present respondent I Mubigi s/o Wajangi was

1986 TLR p38

MWALUSANYA J

A the plaintiff. Later execution proceedings was issued for payment of a total of Shs.658,776/=.

One of the points taken on appeal is that the execution proceedings for the untaxed costs

amounting to over five times the decretal amount was irregular. Counsel for the respondent Mr.

Butambala conceded that much. It was quite improper B for the learned Resident Magistrate to

issue execution proceedings for Shs. 658,776/= which had not been taxed by the Taxing Master

as is required under Rule 61 of the 'Advocate's Remuneration and Taxation of Costs Rules' as

amended by GN.89 of 1962. The Resident Magistrate as a Taxing Master at the District Court

level should have taxed the bill of C costs first before issuing execution proceedings. On this

aspect of the case we allow the appeal and quash the execution proceedings.

The next point is as to whether the suit was time-barred or not. That depends on as to when the

period of limitation D started to run. This was a contract that was made in 1975 for milling

maize into maize-flour on behalf of the N.M.C. In 1976 it is said that the appellant corporation

refused to pay the respondent for services rendered. The appellant refused payment on the

ground that he had actually stolen some of the maize-flour that he was supposed to deliver to

them after E milling. He was reported to the police and respondent was charged in Criminal

Case No. 115/1979 wherein he was acquitted. The respondent did not file this suit till 7/9/1984.

It is conceded by both parties that the limitation period for F this type of suit is six years as per

Part I of the First Schedule of the Law of Limitation Act No. 10 of 1971. Mr. Rugarabamu for

the appellant has argued that the period of limitation started to run in 1976 and so by 1984 the

respondent was time-barred. On the other hand counsel for the respondent Mr. Butambala

argued that the period of G limitation did not start to run until 1979 when respondent was

acquitted. But Mr. Rugarabamu argued that the criminal trial was not a disability as respondent

was free to file the civil case.

The trial court was obviously unhelpful when it held that the law of limitation should not be

applied if it produced unjust results to any of the parties. The trial magistrate patently

misdirected himself on this matter. A court is a court of law and H not a justice. So judges and

magistrates are enjoined to apply the law as they find it even if they feel it is unjust. As one of

celebrated English Chief Justices, Lord Mansfield, had once said, the courts should apply the law

even if the sky I will fall. If the law is unjust it is for Parliament to amend it but not for the

court to refuse to apply it.

1986 TLR p39

MWALUSANYA J

A In my view the period of limitation did not start to run until the acquittal of the respondent.

This is because the appellant was not then denying liability but wanted to ascertain as to

whether the respondent was not under any liability to them so that they could off-set that sum

from what they owed the respondent. In fact that is what the appellant B corporation had

endorsed on the back of Exh. A through one of its officials. It is only after the acquittal and

when appellant still refused to pay that the cause of action arose and only then did the period of

limitation start to run. As the acquittal was in 1979 and the case was filed in 1984 then it was

within six years. Therefore I hold that the suit was in time and not time-barred. C

Finally the appellant argued at the hearing of the appeal that the respondent had failed to prove

at the trial as to how much of the relevant contract he had performed so as to deserve a sum of

Shs.194,346/= In my view the respondent had already proved that much on a balance of

probability. That was a collorary from the outcome of the criminal case. In the D criminal case

it was argued on behalf of the appellant that respondent had received 500 bags of maize for

milling. He was supposed to send back 484 bags of maize-flour but instead it is said he only

returned 324 bags of maize-flour and so 160 bags of maize were stolen. The criminal court in its

judgment Exh.B found as a fact that respondent had delivered all E 484 bags of maize-flour to

the go-down of N.M.C. Therefore that respondent had already fulfilled or performed his part of

the contract was a non-issue at the subsequent civil case. After the criminal trial it was a

foregone conclusion that F the respondent had performed his part of the contract. The

appellant corporation is therefore liable in law.

In the upshot the appeal is dismissed with costs.

G Appeal dismissed.

1986 TLR p40

A