20070914 TZHC Dar es Salaam

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BIBITI . GINNERIES - LIMITED ...... ,PLAINTIFFh{:a '"•~· .

VERSUS , .,};,t1i,';·.. ,_' :,t· \I

TANZANIA RAILWAYS ' \ CORPORATION ......................... 18 T DEFENDANT

PRESIDENTIAL PARASTATAL

SECTOR REFORM COMMISSION ............ ............. 2ND DEFENDANT

RULING Date of final submission August 22, 2007. Date of ruling: September 14, 2007. MJASIRI, J. ~ ~ The Plaintiff, Bibiti Ginneries Limited is claiming from the Defendants the Tanzania Railways Corporation and the Presidential Parastatal Sector Reform Commission the sum of USD 368,273.25 being the value " \~ of 14 77 cotton lint bales which were ~estroyed by fire while at the custody of the first Defendant. The Plaintiff is also claiming an additional sum of USD 71,099.00 being deference in price paid to the buyer of the said cotton purchased from another source. The Defendants raised preliminary objections 1n their written statements of defence. The first Defendant raised the following preliminary objections: (i) By virtue of section · If7(bY -al- the Tanzania Railways Corporation Act (Cap 170)[R.E.2002} the suit is time barred. (ii) The suit is premature for non compliance with section 37 of the Bankruptcy Act Cap 25 [R.E.2002] . . ... (iii) The suit was signed in contravention of Order VI Rule 14 of the Civil Procedure Act Cap 33[R.E.2002]. 2 Counsel for the 1st Defendant therefore prayed that the Plaintiffs suit be dismissed with costs. The second Defendant raised the following preliminary objections: (i) the suit is hopelessly time barred by virtue of section 87 (b) of the Tanzania Railways Corporation Act Cap l 70[R.e.2002} read together with sections 3(1) and 46 of the

Law of Limitation Act Cap 89 [R.E.2002}. (ii) the suit is premature--for---want ..of compliance with the mandatory provisions of section 37 of the Bankruptcy act Cap 25 [R.E.2002} read together with sub rules (1),(2) (3) and (4) of rule i . 1 in the second schedule to the said Act; Alternatively 'the plaint does not disclose a cause of action against the second Defendant . ., ., (iii) The honourable court lacks original jurisdiction to entertain and determine the suit pursuant to the provisions of rules 13(1) and 13(4) in the 3 r ~ .. \ ~r. .. .. Second Schedule to the Bankruptcy Act Cap 25 [R.E.2002]. (iv) The plaint offends the mandatory provisions of Order VI Rule 14 of the Civil Procedure Code Cap 33/R.e.2002]. The Plaintiff was represented by Mr. M wakagamba Advocate and the first and second Defendants by Mr. Mbamba and Mr. Fungamtama Advocates. In relation to the preliminary point of law that the suit was time barred which was raised by the first and the . .. ··- --- - -·-- . second Defendants Counsels for the first Defendant made the following submissions. Counsel for the first Defendant adopted the submissions· made by Counsel for the second Defendant and did not make any submissions on this preliminary point. .. According to the Counsel for the second Defendant section 3(1) of the Law of Limitation Act Cap 89 [R.E.2002] provides as follows: 4 r .." ,· subject to the

provisions. of this. Act, . every proceedings described in the first colunin of the schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence. " Therefore for proceedings which are time barred dismissal of the suit is necessary. Counsel referred the definition of shall in Black's Law in Dictionary, 6th ........ ---------u .. Edition. Counsel also cited section 53(2) of the Interpretation of Laws Act Cap.I [R.E.2002] which provides as under: "Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that th~ function so conferred must be .,. performed." Section 46 of the Law of Limitation Act was also cited by Counsel for the second Defendant. Counsel for the second 5 ' I J Defendant further submitted that according to section 46 · where a period of limitation· for . any proceeding is prescribed by any- other written law, then save for the exemption condoned therein, the provisions of the Law of Limitation Act becomes applicable as of such period of limitation that has been prescribed by it. Mr. Fungamtama Counsel for the 2 nd Defendant submitted that section 87(b) of the Tanzania Railways Corporation act Cap 170 [R.E. 2002] prescribes the period of limitation for proceedings

against the first Defendant. Section 87 provides as follows: "When any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution, of this Act or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or of . any such . .., . duty or authority the following provisions shall have effect:- a) ....................................................... . b) the action or legal proceeding shall not lie or be instituted unless it is commenced within twelve (12) 6 months next after the act, neglect or default complained of or, in the case of a ·continuing injury· damage, within six(6) months next after the cessation thereof. Counsel further submitted that paragraphs 4 and 8 of the plaint read together with annexures marked "BGL- 3" and BGL-4 the cotton bales were gutted by fire on October 5, 2003. The plaintiffs cause of action therefore arose on October 5, 2003 and the limitation period therefore started to run from the said date as provided by section 4 and 5 of the Limitation act. The proceedings were instituted by the Plaintiff on June 8, 2007; i.e. three (3) years and eight (8) months after the accrual of the cause of action, the Plaintiff did not seek extension of time from the Minister of Justice under section 44 of the Limitation Act. Counsei brought

to the attention of fhe court Commercial Case No. 7 of 2005 unreported between Freight World Limited· versus Tanzania Railways Corporation & the Presidential Parastatal Sector 7 Reform Commission. Counsel also cited the case of John Cornel Grevo (T) · Ltd, Civil Case No. 70 of 1998 ·High Court Dar es Salaam (unreported) in which Kalegeya J as then was stated: "However unfortunate it may be for the Plaintiff, the Law of Liniitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who would get caught in its web." Counsel for the second Defendant . also made reference to Rustomji on Limitation Eighth Edition at page 27 edited by S.P Sen Gupta·-in· 2001~·According to Counsel the learned author observed that the limitation period should be observed without any exceptions. Rustomji's observations and conclusions on the strict compliance with the limitation period without any exceptions, and that negotiation for settlement did not check limitation. This was endorsed by the Court of ., ., Appeal of Tanzania in Civil Appeal No.2 of 2003 Consolidated Holding V Ra}ani Industries Limited and the Bank of Tanzania. 8 .' - According to counsel for the second Defendant from the letters annexed to the plaint, it was discerned that the Plaintiff spent much of his time in inquiries, negotiations and correspondence. Counsel asked the court

to dismiss the suit in view of the provisions of section 3(1) of the Limitation Act. Counsel further submitted that without prejudice to the submissions made, he was aware that the Law of Limitation Act Cap 89 [R.E. 2002] excluded certain periods in computing the period of limitation for any proceedings. Thus, in the event that there was an excusable period which was denied, the Plaintiff was required under Order VII Rule 6 Cap 33 [R.E. 2002] to show in the plaint clearly the ground upon which exemption from the Law of Limitation is claimed. . . Mr. Fungamtama Counsel for the second Defendant cited the case of Alphons Mohamed Chilumba versus Dar es Salaam Small Industries Co-operative Society (1986) TLR 91: 9 :·•· . ", ."Order 7 rule6 of the CPC provides that where a s.uit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exeniption from such law is claimed." Where a suit would pr1ma facie be barred by limitation, it is necessary for the Plaintiff to show in his plaint such ground of exemption. If no such ground is shown in the plaint, it is liable to be rejected under rule 1 l(c) of the same Order. Counsel for the 2nd Defendant further submitted that in this case the plaint did not show that the Plaintiff is exempted under the law of Limitation from the statutory time limit. The plaint is therefore

liable to be rejected . according to Order VII Rule 11 (c). In relation to second Defendant's prellminary objection that the suit is premature and lacks requisite original jurisdiction Counsel for the defendant submitted as under. The counsel for the second Defendant submitted 10 r. that the first Defendant is a specified Public Corporation by virtue of ·Gove·rnment Notice No.543 published on 22 nd August, 1997 made under section 38(1) of the Public corporations Act. According to Counsel once a Public Corporation is declared a specified Public corporation under section 43(1) of the Public Corporation's Act the Presidential Parastatal Sector Reform Commission PSRC (the second Defendant) becomes the official Receiver under the Bankruptcy Act Cap 25 [R.E.2002]. Counsel further submitted that according to section 37 of the Bankruptcy Act all debts against a specified Public Corporation must first be submitted to the Official Receiver for proof by way of an affidavit. This is a condition precedent and if there is non compliance a suit emanating such a claim cannot be entertained in a court of law. In support of his arguments Counsel brought to the .., attention of the court the decision of the Court of Appeal in William Kimaro & 75 Others versus Coopers and Lybrand & Another 1996 TLR 252 where it was held that: 11 r -., • • i) . .. The companies (winding Up).Rules, 1929 require any

debt to be proved by affidavit and until this is done, there can be no cause of action. ii) The two claims in this suit were thus prematurely lodged. According to Counsel the Court of Appeal had in mind Rules 89 to 92· of the companies (Winding Up) Rules, 1929. Counsel also cited Civil Case No.105 of 2003, John Paul V National Milling Corpora{ion and PSRC (unreported) where Rugaziya J followed the Court of Appeal decision in William Kimaro and made an order striking out the suit as the claims were not subjected to the same process of submitting proof by way of affidavit to the official Receiver. ..,. ..,. Counsel also made reference to Misc. Civil application No.309 of 2002, Hamisi Salum and Ali Salum versus Kilimaniaro Hotels Limited and the 12 ,. Parastatal Sector Reform Commission where Mushi J · -held that: . _/ J "Accordingly, in as long as the claims were not proved by . an affidavit, they have no cause of action to warrant theni to institute the contemplated suit against the respondent. Leave to sue the Respondent is hereby denied." Counsel further submitted that the Companies (Winding Up) Rules 1929 are in pari materia with sub rules (1) to (4) of Rule 1 in the Second Schedule to the Bankruptcy Act Cap 25 [R.E.200-2]. ·-The -said prov1s1on were intended to assist the Official Receiver, According to Counsel for the second Defendant, a party can only resort to court under

section 13 (1) and (4) of the Bankruptcy Act by way of appeal and the court has no original jurisdiction . .., In relation to the last preliminary objection that the Plaint offends the provision of Order VI Rule 14 of the Civil Procedure Act Cap 33 [R.E.] 2002, Counsel for the second Defendant submitted as under: The Plaintiffs 13 plaint has not been signed in accordance with Order VI ·Rule 14 of the civil Procedure Act Cap 33 [R.e.2002]. · Order VI Rule 14 states that every pleading shall be signed by the party and his advocate (if any). The signature on the plaint is mandatory. Counsel cited the case of Rugaziya J, in Civil Case No.173 of 2003, Tanzania Portland Cement Co. Ltd versus Haruna Mpangaos & 169 others (unreported). "The Advocates' signature is also mandatory not in substitution of the parties signature." Rugazia J's finding was that there was no way to cure the irregularity. Counsel for the first Defendant raised similar Preliminary Objections. Counsel submitted that his learned friend made a detailed submission on the preliminary objections raised and only wished to bring to . .... the attention of the court an additional authority on the requirements under Order VI Rule 14. According to Counsel in Thadei Marealle & Others V Printpak Tanzania Limited and PSRC, Civil Case No.49 of 2000 14 (unreported) where Katiti J struck out the suit for non compliance ·with

Order VI Rule 14. 'According to Counsel, Katiti J was guided by the decision in William Kimaro & Others versus Cooper & Lybrand & another. Mr. Mwakagamba learned Counsel for the Plaintiff submitted a follows. Counsel conceded the legal position raised by the Counsels for the Defendants on limitation under section 3(1) and 46 of the Law of Limitation Act Cap.89; and section 87(b) of the Tanzania Railways Corporation Act. However Counsel for the Plaintiff further submitted that the Counsels for the Defendants reached their conclusions hy merely · looking at paragraphs 4 and 8 of the Plaint without bothering to consider other facts stated in the plaint in conjunction with the provisions of the Law of Limitation. Looking at paragraphs 4 and 8 it would appear that the Plaintiffs cause of action arose on October .., 5, 2003 and ., by virtue of section 87(b) of the TRC Act the Plaintiffs claim ought to have been lodged on or before the 4th October, 2004. Counsel further submitted that 1n paragraphs 10 and 11 of the plaint it was stated that the 15 • . ., Plaintiffs demands were admitted by the Plaintiff who · promised to look into the matter and was going t'o settle the matter so the Plaintiff was asked to be patient while matters were being sorted out. Counsel made reference to section 86(2) of the Tanzania Railways Corporation act which requires the director general to be notified

of the claim, and to present a claim in writing to the Director General. Therefore in view of that the Plaintiff could not resort to court action without exhausting the mechanisms laid down under section 86(2). Counsel for the Plaintiff made reference to the first Defendant's letters indicating that the 1st Defendant was working on the issue and the matter would be finalised in the near future. According to the Counsel for the Plaintiff even after the lapse of the 12 months limitation-period the first Defendant continued to promise the Defendant .., of a .., possible settlement. Counsel for the Plaintiff further submitted that the correspondences giving false promises by the first 16 defendant were fraudulent and therefore entitled the Plaintiff to benefit from the provisions of section 26 of the . Law of Limitation Act. Section 26 provides as under: ''Where in any cause of the proceeding for which a period of limitation is prescribed (a) ................................................. . (b) The right of action is concealed by the fraud of any such person as aforesaid; (C) ................................................ . the period of limitation shall not begin to run until the Plaintiff has discovered the fraud-or m{siake -or could with reasonable diligence, have discovered it." Counsel further submitted that the Plaintiffs claim involved a large sum of money and the first

defendant being a specified corporation could not have liquidated it. The Plaintiff relied on the first defendant's promise. .., .., According to Counsel for the Plaintiff, by virtue of section 26(2) of the Limitation Act, the period began to run on February 7, 2006 when the Plaintiff realised that the 1st Defendant's promises to settle were fraudulent. 17 ., . On the provisions of Order VII Rule 6, Counsel for the Plaintiff conceded that the plaint did not set the ground that there is an excludable period in computing the period of limitation in the matter. Counsel for the Plaintiff brought to the attention of the court the proviso to Order VII Rule 11 which gives power to the court to permit the plaintiff to amend the plaint, if the court is satisfied that by doing so the plaint will disclose a cause of action. Counsel cited the case of Sabayaga Farmers Cooperative Society Ltd. V Mwita [1969] E.A 38 where it was stated as follows: ''Where a defect can be remedied by amendment, the court niay give leave to amend. Where a pleading is not specific as it ought to be, the court may direct a party to amend · his pleadings or give further particulars." .., Counsel further submitted that the court has discretion to order amendment and should do so in order not to defeat the ends of justice. Counsel cited the case of DT Dobie 18 .. (Tanzania) Limited V Phanton Modern Transport ·

(1985) Limited; Civil appeal No'.141 of 2001 ·(unreported) ---I which stated that the rules of procedure are handmaids of justice and should facilitate rather than impede decisions on substantive issue. The Court of Appeal made reference to Re Coles and Ravensheer (1970) 1KB where the statement was first made and the court waived a strict application of the rule in order to do justice. In relation to the issue that the suit is premature in view of the provisions of section 37 of the Bankruptcy act Cap 25[R.E.2002], Counsel for the Plaintiff submitted that this ground of objection is misconceived and lacks merit. According to the Counsel for the Plaintiff section 3 7 of the Bankruptcy Act makes reference to two important aspects the "mode of proving debts" and "creditors." Counsel further submitted that the debts referred to in section 37 read together with rules 1-4 of the second ., schedule to the Bankruptcy act are debts which were in existence before or at the time of making the Receiving Order and the creditors referred to are those who were in existence prior to the making of a receiving or specifying 19 order. Counsel made reference to section 9(1) of the Bankruptcy · act. Counsel also cited the case of MIS · Sanyon Service Station Ltd V BP Tanzania Limited; Commercial Case No.105 of 2002 (unreported) where Kalegeya J stated that the debts envisaged are those in existence

at the time the Receiving Order is made by the court or as in this case, when the specifying order was made, in the terms of the Public Corporations Act, 1992 as amended by Act 16 of 1993. Counsel for the Plaintiff submitted that Section 37 and Rule 1-4 in the second schedule cannot be read in isolation with section 9, 35 and ·3g of the Bankruptcy act in order to understand the full meaning of the terms creditor and debts to be proved after the making of the receiving order. The authorities cited by the counsels for the Defendants are therefore not applicable. In relation to the preliminary objection that the plaint offends the provisions of Order VI Rule 14 of the Civil Procedure Act Cap.33, Counsel for the Plaintiff 20 submitted that the Defendant's objection 1s a misconception of the law as the. plaint ·has been properly signed. According to Counsel for the Plaintiff Rule 14 does not impose any hard and fast rule on how and where the requisite signatures should appear nor does it require certain words or marks to accompany such signatures before or after endorsement. What is important under the rule is that the plaint must only bear the signature of a party and his Advocate and nothing else. Counsel further submitted that the requirements under Order VI Rule 14 have been duly satisfied. C0iinse1 further submitted in the alternative that non compliance of the said order is

r1.ot fatal and the same can be cured by amendment and not by rejecting or dismissing the said plaint. This is due to the fact that such non compliance does not affect the merit of the case or the jurisdiction of the court . ... .... Counsel for the Plaintiff cited the case of Transgerm Trust V Tanzania Zoiszte Corporation Ltd (1968) HCD 501 where Platt J, as then was observed as follows: 21 --.··-. ·---·---~--, -· . "The Plaintiff's has not signed the plaint. Signing of · the plaint is a matter of procedure · and this 'defect does not affect the merits of the case or jurisdiction of the court." Counsel also cited the case of Helena Yakob V Tanganyika Contractors (1963) EA 261 where Murphy J held: "The magistrate found the plaint to be defective, should have considered whether the defect was one which is curable by amendment." Counsel further stated that .a .similar position was held in the case of Sabayaga Formers Cooperative Society V Mwita. According to Counsel for the Plaintiff the Court of Appeal of Tanzania emphasised that procedural defect must not be strictly observed by Courts of Law through strict application"' of the law. In the _case of DT Dnbie (Tanzania) Limited V Phanton Modern Transport 1985 Limited. Lugakingira JA (as he then was) citing the 22 decision of Georges CJ in Essaii V Solanki (1968) EA 218 stated: J '~nd here at home Georges CJ said in essaji

V Solanki [1968] EA 218, 224 that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their nierits, and that errors and lapses should not necessarily debar a litigant from the pursuit of his right." Counsel also cited the decision of Samatta J (as he then was) in the case of VIP--Eng.inee.r.ing. -& Market Limited V Said Bakhresa Limited, Civil Appeal No.4 7 of 1996 (unreported) where he stated as follows: "While the importance of litigants cannot be over emphasized, it must not be forgotten that there is a danger of consumers of justice losing confidence of the Court if Judicial Officers are obsessed more with ~ ~ strict compliance with procedural rules than what the merits of disputes before them are. To stay in that error is to aid the judicature's grave diggers." 23 After rev1ew1ng the pleadings filed in court, the ·submis·sions filed by counsels and the authorities related thereto I would like to thank Counsels for their lucid submissions and for their research and industry. In relation to the last preliminary objection that the plaint offends the provisions of Order VI Rule 14 I would like to state as under. Order VI Rule 14 provides as follows: "Every pleading shall be signed by the party and his advocate (if any) provided that where a party pleading is, by reason of absence or for other

good cause, unable to sign the pleading, it may be signed by any person authorised by him to sign the same or to sue or defend on his behalf." On looking at the plaint filed in court the said plaint has not been signed by the Plaintiff and or pis advocate or authorised party. It is only the verification clause which has been signed. 24 ' . . - -. ~----------- . C "~ Given the circumstances, what are the legal implications as far as the said plaint is concerned. The legal position is that the court has continued to maintain the position taken by Platt J in Transgen Trust V Tanzania Zoisite Corporation Limited 1967 HCD 501 that signing of the plaint is a matter of procedure and this defect does not affect the merits of the case or the jurisdiction of the court. In Helena Yakob V Tanganyika Contractors [1963] EA 261 Murphy J stated that: "the magistrat(} found the plaint to be defective should have considered whether the defect was one which is curable by amendment." The Court of Appeal of Tanzania has also emphasized that the substance of dispute should be investigated and decided on their merits. Lugakingira J (as he then was) in DT Dobie (Tanzania) Limited V Phantom Modern Transport 1985 Limited followed the decision in the case of Essaii V Solanki [1968] EA 218, 224 and he stated as follows: 25 "And here at home Georges CJ said in Essaii V ·solcinki that: the administration of

justice· should · normally require that the substance of all disputes should be· investigated and decided on their merits and errors and lapses should not necessarily debar a litigant from the pursuit of his right." Samatta J as he then was stated as follows in the VIP Engineering case (supra): "While the importance of litigants cannot be over emphasized, it must not be forgotten that there is a danger of consumers of justice losing confidence of the court if the judicial officers are obsessed more with strict compliance with procedural rules than what the merits of disputes before them are. To stay in that error is to aid the judicature's gravediggers." Taking into account the authorities cited hereinabove ., it is my view that the defect of the plaint can be cured by amendment. 26 .' . ----- In relation to the second preliminary objection that · the suit is premature and lacks the· ·requisite origina.1 · jurisdiction the legal position is as under: It is not in dispute that the first Defendant was declared as a specified corporation by virtue of GN No.543 of 22 nd August, 1997 made under section 38(1) of the Public Corporation Act 1992. The second Defendant 1s the refore the official Receiver of the first Defendant and Provisions of the Bankruptcy act Cap 25 [R.E. 2002] apply and the said provisions have to be complied . w-ith. Section 37 of the Bankruptcy act provides as

under: "With respect of the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs, and the other matters referred to in, the second schedule to this Act, th~ rules in that schedule shall be observed." 27 The mode of presentation of the debt is provided under Rules 1-4' and the requirement proof of the debt by affidavit. The procedure needs to be complied with. In the Court of Appeal case of William Kimaro & 475 others V Coopers and Lybrand & Another 1996 TLR 252 it was held that: "(i) The Companies (Winding Up Rules requires any debt to be proved by affidavit; and until this is done, there can be no cause of action. (ii) The two claims in this suit were thus prematurely lodged.': The Court of Appeal decision in the Kimaro case was followed by Katiti J in the case of Thadei Marealle and others versus Printpak Tanzania Limited and another H.C. Civil Case No.49 of 2000 where it was held as follows: ., ., "The proof of debt, consists in filing an affidavit only setting forth, the circumstances of the debts, amounts still due thereon and producing documents in proof of debts as exhibits i.e. provable in accordance with Rule 28 _ r ___ - - n ' 2 to 21 of the Second Schedule to the Bankruptcy Act. It is therefore not a question of picking phrases or clauses not filing a suit as he did." The suit was dismissed as incompetent,

being prematurely brought before the court. The circumstances of the following cases are applicable to this case, The preliminary objection is therefore upheld. In relation to the first preliminary objection relating to the law of limitation I would like to make the following observations. Section 87 (b) of the Tanzania Railways Corporation Act Cap [R.E. 2002] provides as under: ''Where any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution of ... ., this Act or any public duty o"'r authority, the following provisions shall have effect." "the action or legal proceedings shall not lie or be instituted unless it is commenced within twelve 29 . .--1..:::: _ __ .. months next after the act, neglect or default complained of or in the case of a continuing injury or .damage, within six months next after the cessation thereof. The cause of action against the 1 st defendant arose on October 5, 2003 and the suit was filed on June 8, 2007 and no exemption was pleaded under Order VII Rule 6 of the Civil Procedure Code. Section 87(b) is very clear and specific. It provides for a limitation period of one year or in the case of a continuing injury six months afterthe-·cessation thereof. The plaintiff did not seek for extension of time from the Minister of Justice as provided under section 44(1) of the Law of

Limitation Act. According to section 46 of the Law of Limitation act Cap 89 (R.E. 2002), "where a period of limitation for any proceeding is prescribed by any other written law, then, unless the 30 contrary intention appear in such written laws, and subject· to the provisions of section 43, the provisions of this Act shall apply as if such period of limitation had been prescribed by this Act." Section 3 (1) of the Law of Limitation Act provides as under: "Subject to the provisions of this Act every proceeding described in the first column of the schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shazz ···be·- dismissed whether or not limitation has been set up as a defence." In Consolidated Holding Corporation V Raiani Industries and Another, Civil Appeal No. 2 of 2003 CA (unreported) it was held as under: "Under section 20 to 2 3 of the Limitation Act, the time for exclusion in computing the period of limitation is specified. 31 :,;, . ~ ~-• --- It is apparent that under these provisions, the time taken in negotiating for a settlement is· not one · of the categories of instances in which time is excluded in computing the period of limitation. Lubuva JA stated as follows in the Consolidated Holding Corporation case. ''It is a cardinal principle of the rules of interpretation that statutes

should as far as possible not only be · given their natural and ordinary meaning but should also be effected. " K.J.Rustonji, distinguished author stated as follows in his book on the Law of Limitation 5th Edition at page 27. Cited in the above case: "Negotiation for settlement do not check limitation. Plaintiff, if he sues after expiry of time, will be barred .,. even where the Defendant .,.has betrayed him into permitting the time to elapse in fruitless inquiries and negotiations. The statute is not defeated or its 32 • operation retarded by negotiations for a settlement pending between the parties." The standard practice is to file a suit in court while negotiations are taking place. In this case the provisions of Order VII rule 6 of the Civil Procedure Act Cap 33 do not apply. No exemption was pleaded to show the ground upon which exemption from such law is claimed by the Plaintiff. In view of what is stated hereinabove the Plaintiffs third preliminary objection is upheld and in view of the provisions of the Law of Limitation Act unlike what is raised in the first two preliminary objection, the suit cannot be struck out but has to be dismissed with costs. Therefore the suit is hereby dismissed with costs. Sauda Mjasiri Judge September 13, 2007 33 Ruling delivered in chambers this 14th day of September, 1.,- 2007 in the presence of Mr. Nyagusu advocate for the Plaintiff and Mr. Fungamtama Advocate for the second Defendant and in the absence of Mr. Mbamba, Advocate for the first Defendant. 'r.' ... 8,110 words. jd I Certify th;)t this·!~ a. -t~U~ ~ni~~rrea O ! ( 1, e o ~ i .., •,, .. , · • · ' ~ - . •1 ,. !" rn ·~ ll t RU fl I ng I . • .., . .., 34