20161114 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA {COMMERCIALDIVISlON) · -.-. AT.DAR.ES SALAAM.- MISCELLANEOUS COMMERCIAL APPLICATION NO. 168 OF 2016 (Originating 'fi•om Commercial Case No. 36 of 2016) · CMA CGM (TANZANIA) LIMITED u ................... ~ . • • • . • . • • . . . . • APPLICANT --VERSUS . . '· INSIGNIA LIMITED .............................. ~ ....... ~ ............. RESPONDENT _,RULING,- The applicant is the defendant in Commercial Ct:ise No. 36 of 2016 in which the respondent is the plOintiff. · In the present application the applicant filed the present application seeking for the following orders:. i. That the names ' ,9fqoth .or either Shipper or Agent/agent be added to ,,.. . the above case, as q.efendant(s) to as person(s) whose presence before ' ! __ ' .,.··1 ·- . • the court may be necessary ti order to e17able the court to effectually and completely to adjudicate upon and settle all the questions involved in the case afores·aid; 2. That costs of this. application be awarded to the applicant in any event;- and .. 3. That any other". relief m?JY · be· given to· the. applicant as to Honourable court-appe~rs to be ju_st and convenient. On 26.09.2016, Mr. Dkksqn.Sanga;-.the Jearr)ed counsel for the .respondent, :. ·.. • filed . a two-point preliminary• .objection .. against the applicatiop. The f· · preliminary objection is. -couched. thu~: J;_ : : .•. · 1. This H~nourable ·c;~rt h.as, no ·jurisdiction to ~nt~rtain the a'pplicant's f~- ··· . as· if itliopelessiy ti_':1~ barred·{ arid : application . .- . · t~. 2. The application . before this. Honourable ~ourf is .incompetent : . . ·for . being ;. '} preferred under wrong provisions of the law. ;, The preliminary objection (henceforth "the PO") was argued. before me on . . .. '. ·: . . : ·. ·. .. . . .. . ft+ 13.10.2016 p_rio~ to. ~hich _th~ ;l~ame~ cou~s~I -~or. ~~~_parties··~ Mr: ~ovatus ~--. Rweyemaniu for the applicant and Mr. Dickson. Sanga for the respondent - ( · · . _.. ·, had filed their respecti~e···;k~l~ton written argum~nisas .dictat~d by rule· 64 of Ir. the RLil~s. This is a n:iiing thereof. ·. - . ,. . . , [ · ,, . . . . k Arguing for the first. point of the PO, .·Mr. Sanga, · ·1earned counsel for the L 02.08.2016 while the applicant was served with the plaint on 02.05.2016. l:·_ . . The learned counsel argues that by virtue of the provisions of item 21 of Part ~- · III of the first schedule'to the Law of Limitation Act~ Cap. 89 of the Revised ,Ji . I Edition, 2002, the application ought to have been filed within sixty (60) days after service. This is so, the learned counse! argues, because the CPC does · not provide for. the time within which such an application should be filed. He : . . argues that the present application·. which wa~·•·fi_l~d::·rno·re than one hundred (100) days after service, is hopelessly time barred .and should be dismissed. To bolster up his arguments, the ·learned counsel has· cited· Tanzania Cotton~:.· 2 Marketing Board Vs Cogecot Cotton ~ompanyS,.A [2004] TLR 132 and Muna: the Code of Civil Procec,ture, Volume 2 16.th Edition at pp 1554-5. On the second point, the .. lear!Jed counsel _. submits that the present application has been preferred under wrong .provisions and therefore cannot move the court to .gr_ant th~ _::~rd~~? . ~ought. .. He submits further that the provisions of Order I rGle io (2) and (4) of the CPC are not applicable because there is ·no party -wh·o· has been wrohgly _or ·improperly joined in which the court may sFrike out the' wro'r'igly orimproperly joined party and the person who ou_ght fo' have bee~ joined added.. tie stre?ses that these p;ovisions presupposed llTis:kind ~f situkti◊n- ~s-•was' tfold in. Ami Mpungwe Vs Abbas Sykes, Civil Appeal._ No. 67 _of 2000 (~nrepo~ed) in which the r:·i f~- !.· .. Court of Appeal quoted the .. following ,-paragraph in Daphne Parry Vs Murray Alexander Carson[1992] EA 515: "Rule 10· (2) ernpowersthe court tha~··the name of. any party imprW_>t-jrly joined whether as Plaintiff or defendant to _be struc;k qut, ,~nd _that the na~e of · any person· who_ :'ought_ to _have been joined, whetheras plaintiff be added ... The rule is thus concerned with parties who ·have been wrongly joined, or who ought t0 be joined or - added. To. join or to add a party is not synonymous with making a person a party." On the strength of the. above arguments, · the learned counsel for- the respondent has urged the court Jo sustain the PO and· dismiss the application with costs. 3 Arguing against the PO, .,Mr-. Rweyerhamu, learned Gounsel submitted that the . . .. . . limitation of sixty-. days· must:be rec~oned form either 0L06.20i6 :when he filed the written statement of defence, or 13.06.2016 when he expressed his . ·., - .- -·...__ ;. -_ . . . - .: - . l . . wish to make an oral application for addition of partjes or 28;06.2016 when .. . . . .. ·• ,. . . . . ·. . .. . . . i'. . .. . the court advised him t() file a formal application tor: addition of the parties. On th~ first alte~nativ~dat~;_ that is 01.06.2016, the learned cou~sel :concedes that the application was filed· a _·day out of. time. _The learned counsel was quick, however, to pray that.the court extends time (of one· day) in terms of· section 14 of the Law of_ ~i;,itatio~ ~o. that the applicatio~ is deemed to have . . _:. . .. :t, . f.. . . . . . .·.. . . . i·.. . ,. . been filed in time. .. I Mr. Rweyemamu argues in ,th·e _alter~a~ive that no limi~ation of tin,e is relevant in an application under Order l r·u-1:e 10 (2) of the ·cpe, j On the ·second point;: the learned: counsef .arg.ues that the pr·ovisions cited in • support of the-application ·ar~ quite app.ropri~te: ·.. :·· I have subjected the arguments of both learn~d counsel for the parties to proper consideration.· The .·.question ori .which. the learned counsel for the parties are at iss:u~ is on' limit~tion of time .in 9ppUcations of this nature. The learned counsel seem to be at one that the limitation is sixty days. Mr. Rweyemamu however raised an alternative argument· that the sixty days limitation is not applicable to applications of this nature.· Let me start with Mr. Rweyemamu's alternative argument. For easy . . reference, let me reproduce. the relevant sub-rule; sub-rule (2) of rule 10 of Order I of the CPC hereunder: "The court may, at any stage of the pr{)(:eedings, either upon or without the applicatior::i of either 4 party and· on such terms as may· appear•,tcrthe court to be just/otder lhat.the name f>f any party improperly joined, whether as plaintiff or .defendar,i~, be struck out, and that the name of : '.. ·.· ariy person who ought to have . been .. joined, whether as pla.rntiff .~r defendant, or . whose / __ j.. . \ presence before the court ·may be necessary in : . ~: . : ' . ' order to enable, .the ~ourt effectually and completely . . . ' - upon to adjudicate -- ·- . and . . settle- all the . . q'uestions involvetj ird:he suit', be added." The sub-rule uses the words ''at any stage of the proceedings'\ Mr_. Sanga argued that in India the application must be 5ubjectto the legislation relating to iimitation ·and· cites · Muila: the Code of Civil Procedure for this proposition. I think Mr·. ?anga_ has. n~lis~on_strued the point. . The paragraph on which Mr. Sanga rel:es in MuUa: the Code' of Civil Procedure is Order I rule· 10 (5) of the Indian Code . of. 6vii . -· ·Procedure ' . . re~ds: . "Subject to the provisions of the Indian Limitation Act (1877 (15 of .1877))*, s 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the · summons." That provision is in pari materia with our Order I rule 10 (5) of the Law of . Limitation Act which reads: "Subject to the provisions of section 22 of the Law of Limitation Act*., the proceedings as against any 5 · person added as defendant shall be deemed to have begun only on the service of the summons." ,, t£"-: I . . . . .. :. .. . . . I: My reading of the. provision _has it that reference as to limitation of time isl: · . being made to a party who has been added as a defendant. . . 1read nowhere 1:t ih the provision suggesting that an application under the provisions to bej: - ' . .. . . . ·. . .. · . . . t- subjected to the Law of· Lim_itation Act. In my considered view, the use of ther word~. "at ahy stage of the p·~;c~eding~,;- sugg~st -th~t a·n application underf . · . '. ·:- ·. . . ,. . - to' Order I rule 10 (2) of the CPC is not subject to the. Law of Limitation Act. I\: th~refore concur with Mr. ·Rweyema~·u's alternative prayer and overrule thef . t :. - .· first point of the PO. · h t- ~ As for the second' point _-·of· ~bjectiori, I think Mr. Sanga has again t. misconstrued · the _ten9r and import .Aof the .provision. Daphne _isr ... • I' distinguishable as it vvas an applicatim,1 seeking to replace a party not to joi_n j . or ~dd a party vvhich ·, ls the ca:se he re. . The secorid point of the PO isf 0 overruled as well. r The above said, I Jim:l\the ~0· point ·preliminary objection to be wanting in i,, 0 merit and overrule it with costs. Order accordingly. DATED at DAR ES SALAA°M this 14th day of November, 2016 . . J. C. M. MWAMBEGELE JUDGE 6