Court name
High Court of Tanzania

Alfons Mohamed Chilumba vs Dar Es Salaam Small Industries Cooperative Society () [1985] TZHC 2 (01 January 1985);

Law report citations
1986 TLR 91 (TZHC)
Media neutral citation
[1985] TZHC 2
Coram
Mapigano, J.

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

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.

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

E