20080219 TZHC Dar es Salaam

,.,...,,> c/ ~ . ~. '\.~' \~ I" ,-'. i i AT DAR ES SALAAM I ,, CIVIL CASE NiO. 54 OF 2007 I I . LEONILA LUDOVICK RAUYA' .......... !PLAINTIFF VE~SUS 1. M. M. PARDHAN I 2. IDD ALLY ............. . DEFENDANTS I Date of last order - 7I 11 /2007 Date of Ruling -19/2/2008 RU LIN, G Oriyo, J. I i: 11 I The plaintiff, through the (egal aid servic.~s of the Women I Legal Aid Centre (WLAC) is s~ing the defe~dants jointly and i I . severally for General damages of shs.30,000,000/=; Special !: i ' ' damages of shs. l, 146,955/=; Lqss of income olf shs.73, 170,000/=; I: I Interest and Costs. The claim arises from a motor accident I I sustained by the plaintif-f white riding in th~ first detendant's I motor vehicle which was 1 being driven by the second I' defendant. This makes the first defendant vic ariously liable due 1 I' I Ii I ' , to the unlawful act of the second defendant. The accident occurred on 9 January, 2002. The first defendant, using the services of Deogratias J. Lyimo and Co. Advocates has raised a preliminary point of objection that the suit is time barred. With leave, parties argued the objection by way of written submissions. The first defendant submits that the cause of action and the relationship between the plaintiff and the first defendant is tortuous. He argues that the First Schedule, Part I, item 6 of the Law of Limitation Act prescribes a limitation period for actions founded on Tort to be 3 years. He contends that since the accident occurred on 9/1/2002, the suit was to be filed within 3 years; that is by 9/1/2005. It is stated that this suit was filed on 14/5/2007 which was after elapse of 5 years and 4 months. The 1st defendant submits that since the suit is filed out of time and without leave of the court, it is time barred and should be dismissed. To support his submissions the 1st defendant refers the court to the Law of Limitation Act and this courts earlier 2 decision in the case of ALOYS LYENGA VS. THE INSPECTOR GENERAL OF POLICE AND ANOTHER [1997] TLR 10l. The plaintiff denies that the suit is time barred and should be dismissed. However, she does not deny to have instituted it after the expiry of 3 years. But her defence for filing it late was because she spent some time negotiating witt;1 the insurer of the motor vehicle; The Jubilee Insurance Co. of Tanzania Ltd; for compensation. She states ·that she only turned to the defendants for compensation after the insurer refused to compensate her. In this connection, sbe submits that she was. not idle during the period bu.t was following up with the insurance company. She states that she turned to the defendants after the insurer repudiated the claim in its letter of ' 3/2/2007. The plaintiffs contention here is that. time started to run against her only from the date of repudiation of her claim by - the insurer; on 3/2/2007 and not earlier. Her further contention is that the issue of limitation period is a me-re technicality which should not be used to defeat her claims. 3 :; She is asking the court to invoke its inherent powers under Section 95 of the Civil Procedure Act to entertain the suit. In rejoinder, the l st defendant does not buy the plaintiff's contention that time began to run against her claim only after the insurer rejected her claim. He contends that ignorance, mistake or hardship does not save limitation period. In support of this contention the ·1 st defendant relies . on this court's decision in the case of FIDELIS FERNANDES VS. NATIONAL INSURANCE CORPORATION (T) LTD and ANOTHER, CC. 26/2006 DSM Registry (unreported). I have read the written submissions by parties;. The plaintiff has raised a rather interesting issue on why the l st defendant's suit against the insurer which is still pending in the Commercial Division of this court is not being challenged as time barred. She states that the suit filed on 11/6/2007 as Commercial Case No. 36 of 2007 arises from the same set of facts as her present suit; that is the motor accident of 9/1/2002. As already pointed out above; she contends that the issue of time lapse is a mere technicality which should not be used to deny her legal rights. 4 On that basis she asks the court tl use its inhere~\ powers under I I section 95 of the Civil Procedure _,Act to entertain the suit for the ends of justice to be met. Let me start with the legal position as the:re is no dispute ,· on the facts. The Law of Limittion. Act preSi:::ribes limitation periods for suits, applications, appeals, etc. Section 4 of the Act states:- "4. The period of limitation prescribTd by this Act in relation to diny proceeding shall subject to the pr+isions of thi7 Act hereinafter containea, commence1 from the date on which tt right of actipn for such proceeding adcrues." (emphasis provided). In terms of the First Schedule, Part I of the Law of Limitation Act; Cap. 89, [R.E. 2002] limitation pJriod for suits fo~nded on tort is 3 Years under item 6 thereof whLeas limitation for suits founded I i on contract is 6 years under itet 7 of the Act., This provides the answer to the plaintiffs question on why i only her suit is I . 5 challenged as time barred but not the 1st defendant's in the Commercial Division. The periods of limitation applicable to the plaintiffs suit and that applicable to the 1st defendants suit- are different. The l st defendant's suit against the insurer was filed within the 6 years limitation period; and that is why it has not been challenged as time barred. The plaintiffs cause of action against the defendants arose on the date of the accident, that is, on 9/1/2002 and the limitation period expired on 8/1/2005. This suit was filed on 14/5/2007; which is 5- years and .3_ months after: the cause of action arose. The suit was filed 2 years and 3 months late. Section 44 of the Law of Limitation Act vests the Minister of Justice with the discretion to extend the period of limitation, before or after the expiration of such period. It provides:- "44. - { 1) -where the Minister is of the opinion that in view of the circumstances in any case, it is just and equitable so to do, he may . . . extend the period of limitation in respect of any suit by a period 6 ' ' ., not exceeding one half of the period, of limitation prescribed by this Act for such suit". Therefore, whatever the cause of delay may be; be it due to ignorance, mistake, hardship, etc; the party wishing to institute a suit beyond the limitation period, ought to first obtain an extension of the period of limitation from the Minister. Failure to do so renders the claim incompetent. The plaintiff failed to ) seek the extension of time from the Minister of Justice; and it renders the suit time barred. The plaintiff asks the court to ignore the limitation period and deal with the suit using its inherent powers under Section 95 of the Civil Procedure Act. This cannot be · granted for a number of reasons. First of all it has been held .in several court decisions that the inherent powers of the court are not to be I invoked where there is another direct, substantive law applicable. Secondly, Section 3 ( l) of the Law of Limitation Act I is mandatory and the court has no discretion to do otherwise; issue of limitation period is not o technicality as submitted by I 7 the plaintiff; it is the law. Once the limitation period has expired, the court has no discretion but to comply with the provisions of Section 3 ( l). It states:- 3. - ( 1) Subject to the provisions of this Act, every proceedings described in the First Schedule to this Act, and which is instituted after the petiod of limitation prescribed therefore opposite thereto in the second column, •shall be dismissed whether .or not limitation: has been set up as a defence". (emphasis supplied) Back to· the plaintiff's prayer that the time spent in negotiations with the insurers of the motor vehicle be excluded. As already stated, the Law of Limitation Act vests courts with limited jurisdiction to exclude time spent by party elsewhere before taking action in court. Now, unless placed under exemptions of incapacity or time taken to pursue legal process in a wrong court, etc. under sections 15 - 17 and 20 - 23 of the Act, the accrual of the right of action remains the same. 8 I Unfortunately for the plaintiff, the time taken for negotiatio_ns with the insurer is not provided for exclusion. i Therefore the I I accrual of the rig-ht of action remains the sarj1e - 9/1/2002 when the accident occurred. I On the foregoing, the preliminary objectior-i raised by the . I defendant is sustained. The suit is time barred dnd is dismissed I I in terms of section 3 (1) of the Law of Limitation Act. I As the plaintiff is a legal aid recipient, I mdke no order for costs. K. K. Oriyo JUDGE 9