National Milling Corporation vs Mubigi Wajangi [1987] TZHC 20 (4 July 1987)


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

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.

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.


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