ERIC KABENDERA NEW 1

rIN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 12799 OF 2024 ERIC KABENDERA............................................................................ PLAINTIFF VERSUS VODACOM TANZANIA PUBLIC LIMITED COMPANY.................... RESPONDENT RULING S.M, MAGHIMBI. J: The plaintiff abovenamed sued the defendant claiming That the Plaintiff's claim against the Defendant is for the sum of United States of America Dollars Ten Million (USD 10,000,000), which is equivalent to Twenty-Eight Billion Tanzania Shillings (TZS 28,000,000,000) being Specific damages for facilitating his abduction in 2019. On her part, the defendant disputed the plaintiff's claims through a Written Statement of Defence (WSD) filed in this court on the 08th day of July, 2024. Along with the her WSD, the Defendant raised a preliminary objection on point of law that: - 1. To the extent that the Plaintiff's suit arises out of the alleged tortious claim on allegation that the Defendant facilitated his i abduction on 29th July 2019, this suit which was filed on 30th May 2024 is hopelessly time barred pursuant to Item 6 of Part I of the Schedule to the Law of Limitation Act, [Cap 89 R.E. 2019]" Before this court, the plaintiff was represented by Mr. Peter Madeleka, learned Counsel while the respondent was represented by Mr. Gasper Nyika. Hearing of the preliminary objections was by way of written submission. In his submissions to support the objection, Mr. Nyika also raised another point of objection challenging the jurisdiction of this Court to determine the matter. Then in his substantive submissions, he started his submission on the new issue of jurisdiction raised that this honourable Court has no jurisdiction to determine the Plaintiff's suit. It was Mr. Nyika's submission that reading the contents of paragraphs 4, 5, 6, 7, 8 and 9 of the Plaint, the plaintiff, in essence, is aggrieved by the Defendant's conduct in the provision of electronic services to him culminating to his alleged abduction on 29th July 2019. That in particular the Plaintiff complained about his mobile phone loosing network connectivity from 27th July 2019 to 29th July 2019, the Defendant's alleged failure to resolve his network connectivity problem as well as the Defendant's alleged act of providing, to the Police officers, a printout of his mobile money account 2 transactions. It is evident from these paragraphs that the Plaintiff allegations is to the effect that the Defendant had misused or abused the services he is licenced to provide to the Plaintiff. Therefore, in determining the suit the Court will be expected to consider whether there was any violation of the terms, conditions and the law regulating the services which the Defendant is licenced to provide to consumers including the Plaintiff. He then submitted that based on the nature of the above complaints, the issues and findings which the Court will be expected and or required to determine, this honourable Court lacks the subject matter jurisdiction to determine the Plaintiff's suit. He argued that this is because the suit involves the Plaintiff's grievances against a supplier of telecommunication services which is a regulated service by virtue of section 3 of the Tanzania Communication Regulatory Authority Act, [Cap. 172 R.E 2017] ("TCRAAct"). That the determination of grievances or complaints arising from the services regulated by the Tanzania Communication Regulatory Authority (TCRA) is vested to TCRA by virtue of section 43 (1) and (2) of the TCRA Act read together with regulation 11 (4) and (8) of the Electronic and Postal Communications (Consumer Protection) Regulations, 2018 ("Consumer Protection Regulations"). 3 Mr. Nyika went on submitting that it is trite law that where a certain law provides for a specific forum to deal with a certain kind of disputes, a resort to that forum is a must before one seeks a recourse to this Court. That when that is not observed, the attendant's court's decision is rendered a nullity. He supported his submission by citing the case of Salim O. Kabora Vs. Tanesco Ltd & Others, Civil Appeal No. 55 of 2016, CAT at Dar es Salaam (unreported) point to the relevant part being the last paragraph of page 19. He further cited the case of Adella Stansalaus Assey T/A Mount Kibo Pharmacy 2012 vs Vodacom Tanzania Pic and NMB Bank Pic, Civil Case No. 8 of 2023, HC at Moshi (Unreported), where this honourable Court, in striking out a suit based on the preliminary objection that the court has no subject matter jurisdiction to determine a suit, inter alia, involving a breach of contract due to illegal SIM Card Swap by an electronic service provider, made a finding that a dispute or complaint in respect of telecommunication services should be filed at the TCRA. Based on the above, he concluded that since the TCRA Act and the Consumer Protection Regulations provides for an elaborate avenue to address any complaint against a telecommunication service provider, then the Plaintiff's claims in the Plaint should be determined by TCRA which is a 4 proper forum for determining the Plaintiff's complaints and in the manner provided under Part IV of the TCRA Act and Part III of the Consumer Protection Regulations. On the second point of objection that the Plaintiff's Suit is time barred. Mr. Nyika submitted that from the contents of the Plaint (i.e paragraphs 3 and 13), the Plaintiff alleges that the Defendant used the telecommunication services she is licenced to provide to the Plaintiff to facilitate his abduction on 29th July 2019. He therefore seeks payment of USD 10, 000, 000 as specific damages, general damages, interest on the decretal amount at the Court's rate, costs of the suit and any other reliefs that the Court may deem fit to grant the Plaintiff. He then argued that it is evident from the contents of the cited paragraphs of the Plaint that the Plaintiff's cause of action in this suit is the alleged acts of the Defendant as a licenced telecommunication service provider facilitating his abduction on 29th July 2024. He then submitted that the Plaintiff's claims in the Plaint is a tortious claim because it involves the alleged legal wrong committed against another person resulting to damages. Citing Black's Law Dictionary, 6th Edition, Henry Campbell M.A, defines a word "Tort" to mean "a legal wrong committed upon a person or property 5 independent of a contract", Mr. Nyika was of the view that since the Plaintiffs' cause of action is in nature a tortious liability claim, then the Plaintiff’s case ought to have been instituted within 3 years from accrual of right as required by item 6 of Part I of the Schedule to the Law of Limitation Act [Cap. 89 R. E. 2019] (the "Law of Limitation Act") read together with Section 4 and 5 of the Law of Limitation Act. He supported his submissions by citing the decision of the Court of Appeal in Tanzania Revenue Authority vs Dawson Ishengoma, Civil appeal No. 126 of 2011, TZCA at Mwanza (Unreported) where the Court of Appeal of Tanzania confirmed that the period of limitation for suits founded on tort is three years. He went on submitting that based on the above, since the Plaintiff has alleged that the Defendant facilitated his abduction on 29th July 2019, then the Plaintiff's cause of action accrued or arose on 29th July 2019 when he was allegedly abducted and therefore, in terms of item 6 of Part I of the Law of Limitation Act. Further that the said accrual of the Plaintiff's right to institute a suit against the Defendant on the alleged tortious act expired sometimes on 28th July 2022 and therefore, this suit which was filed on 30th May 2024 is hopelessly time barred. He hence prayed for the dismissal of the suit pursuant to Section 3 (1) of the Law of Limitation Act, because it 6 was instituted after the prescribed period of limitation provided under item 6 of Part I of the Law of Limitation Act. In reply, Mr. Madeleka submitted that it is a settled law in our jurisdiction, under article 107A (2)(e) of the Constitution of the United Republic of Tanzania, that in dispensing justice, courts of law should not be tied up with technicalities which may obstruct dispensation of justice. He supported this submission by citing the provisions of Article 107A of the Constitution of the United Republic of Tanzania that: "107A(2)Katika kutoa uamuzi wa mashauri ya madai na jinai, kwa kuzingatia sheria, Mahakama zitafuata kanuni zifuatazo; (e)Kutenda haki biia Kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka." He then submitted that this suit is not tortious in nature as claimed by the Defendant, thus cannot be subject to the Law of limitation Act under item 6 of part I to the schedule. He then referred to the Black's Law Dictionary, 10th Edition, Bryan A. Garner, has defined the term tort, at page 1717, to mean; "a civil wrong other than breach of contract, for which a remedy may be obtained, usually in the form of damages; a breach of duty that the law imposes on persons who stand. 7 He went on submitting that guided by the above definition, one may easily note that, this suit against the Defendant is not tortious in nature as claimed by the Defendant, because one; the claim of the Plaintiff against the Defendant is not a civil wrong and two that the Defendant had breached no duty to the Plaintiff which was imposed to him by law and three; that both the Plaintiff and the Defendant were not standing in a relationship to one another. He then argued that it will be wrong to consider this suit a tortious one, while according to the above position of the law, it lacks some necessary requirements to make it a tortious suit. He went on submitting that the Plaintiffs claim as pleaded under paragraph 3 of the Plaint, is the Defendant's involvement in the Plaintiffs abduction on the 29th July 2019 and that this claim is typically criminal in nature as Abduction is a criminal offence under section 246 of the Penal Code [Cap. 16 R.E 2022]. Mr. Madeleka went on submitting that it is a trite law in our jurisdiction, that claims of criminal nature are not subjects of the law of limitation Act Cap. 89, citing the case of Harry Msamire Kitilya & 2 Others Vs. Republic, Criminal Appeal No. 498 of 2022, CAT-Dar Es Salaam, [Tanzlii], at page 7 &. 8. He went on submitting that it is the cause of action in civil suits which determines the jurisdiction of the court and determine the 8 dispute. On this point, he cited the Black's Law Dictionary, 10th Edition, Bryan A. Garner, at page 267 where the term cause of action has been defined as "a group of operative fads giving rise to one or more basis for suing; a faduai situation that entities one person to obtain a remedy in court from another person". He then argued that from the Plaintiff's pleadings, it can be noted that the facts forming basis of the Plaintiff’s claim against the Defendants are all about abduction which is not a civil wrong. Thus, he concluded, the provisions of the Law of Limitation Act cannot be invoked in this particular case. His prayer was this Honourable Court be pleased find that the Defendant's objection is without merit and proceed to dismiss it with costs. In his rejoinder, Mr. Nyika put it to the Court's attention that Mr. Madeleka did not respond to the second objection that the Defendant sought leave to add and argue in his submissions in chief. He urged the Court to take an inference that the Plaintiff concedes to the second objection raised in his submissions in chief. On the objection relating to the issue of time limitation, he started with Madeleka's contention that the Law of Limitation Act is not applicable in the instant case since the suit is not tortious in nature but criminal in nature 9 because it relates to the Defendant's involvement in the Plaintiff's abduction on 29th July 2019. His rejoinder submission was that it is true that the Law of Limitation Act does not regulate criminal proceedings, in line with the famous legal principle that time does not run against the Republic simply because in the offence committed by the accused is considered to be an offence against the state, the Republic. However, he argued, the said principle does not apply to the Plaintiff's suit because this is not a criminal case but a civil suit seeking compensation in a form of damages for the alleged tortious claim allegedly committed against him. Further that the provisions of the Law of Limitation Act are relevant and applicable to the case at hand. As to the cited case of Harry Msamire Kitilya cited by Mr. Madeleka, it was Mr. Nyika's submission that the case is distinguishable from the case at hand because that case was a criminal appeal arising out of a criminal application filed at the High Court while the present case is a civil case and not a criminal case. Mr. Nyika went on submitting that in the Plaint, the Plaintiff is seeking damages arising from the alleged Defendant's act of facilitating his abduction in 2019. That based on the claims contained in the Plaint, the Defendant submits that since the Plaintiff is, by way of a civil case, seeking damages io arising from the alleged wrong committed by the Defendant resulting to the alleged damages, then such a claim is tortious in nature because the damages sought to be recovered arises out of the alleged wrong. He submitted further that if the Plaintiff intended to pursue his claim or allegations criminally against the Defendant for the alleged Defendant's act of facilitating his abduction, then he ought to have followed the procedure under the Criminal Procedure Act [Cap. 20 R.E. 202] by either lodging a complaint before a magistrate or the Director of Criminal Investigation in line with the applicable laws. He reiterated his stance to the extent that the Plaintiff's claims are of civil nature and involves the alleged Defendant tortious liability, then the Plaintiff's suit ought to have been filed within 3 years from the date the Plaintiff was allegedly abducted. That this suit which was filed on 30th May 2024 is hopelessly time barred under the provisions of the Law of Limitation Act. He concluded by reiterating his earlier prayer that the preliminary objections raised be sustained and the Plaintiff's claims be struck out for want of subject matter jurisdiction and or dismissed for being time barred, all with costs. Having heard the parties, I will start my determination with the issue ii raised by Mr. Madeleka that under article 107A (2)(e) of the Constitution of the United Republic of Tanzania, that in dispensing justice, courts of law should not be tied up with technicalities which may obstruct dispensation of justice. As it has been held in plethora of authorties, not all procedural or technical irregularities can be ignored. This was held by the Court of Appeal in the case of Christina Mrimi vs Cocacola Kwanza Bottlers Ltd (Civil Appeal 112 of 20081 [20091 TZCA 33 (19 February 20091 at page 5 where the Court held: "We are mindful of the provisions of Article 107A of the Constitution of the United Republic of Tanzania, an Article which requires Courts of law to give purposive interpretation of laws as they are and not impeding them with mere technicalities or procedural irregularities. However as has been held by this Court in some of its recent decisions, not all procedural or technical irregularities can be ignored. Some technical irregularities cannot be ignored as they touch on the very fundaments of the issue at hand..." An emphasis was also laid on the purpose and extent of overriding objective by the Court of Appeal in the case of Martin D, Kumaliia & 12 Others vs Iron & Steel Ltd fCivil Application No. 70 of 20181 [20191 TZCA 234 f5 March 20191 whereby while accepting that the purpose of overriding objective is to facilitate the just, expeditious, proportionate and affordable resolution of disputes, the court emphasized that it should not be taken so as to held a party circumvent mandatory rules of the Court, the Court held at page 9: "While this principle is a vehicle for attainment of substantive justice, it will not help a party to circumvent the mandatory rules of the Court. We are loath to accept Mr. Seka's prayer because doing so would bless the respondent's Inaction and render superfluous the rules of the Court that the respondent thrashed so brazenly." On the principles set above, as for this case, the objection raised goes to the root of the jurisdiction of the court to determine what is tabled before me, it cannot be reduced to be a technicality that should be ignored. I am therefore required to determine whether the matter was filed within time and in the proper forum so that I can satisfy myself whether I am clothed with jurisdiction to determine the matter. Otherwise, the purpose of the Law of Limitation setting time limits to bring action to court would be redundant 13 and litigations will turn endless while it is a principle of law that litigations must come to an end. Having said the above, I will proceed to determine the second point of objection which was initially filed by Mr. Nyika, that the suit before me is time barred. The argument advanced by the defence is that the matter at hand is a tortious claim and is subject to a time limitation of three years pursuant to the Law of Limitation. On his part, Mr. Madeleka did not reply on the computation of time, his defence was, strangely as I find it, that the matter at hand is of criminal nature and not a civil one. For instance, it was his argument that it will be wrong to consider this suit a tortious one, while according to the above position of the law, it lacks some necessary requirements to make it a tortious suit. He however did not explain as to which type of suit the current one is because he is defending the objection calling it a criminal natured matter while in his own volition, he has lodged the matter in a Civil Registry titling the case as a Civil Case. Obviously, Mr. Madeleka is not certain as to what it is that he has tabled before this court on behalf of his client. 14 In determining nature of the claim, the plaint has to be looked in its totality with an emphasis on the cause of action and when it arose and the reliefs that are sought by the plaintiff. The question is how do we determine the jurisdiction of the court, before I go to satisfy myself on the jurisdiction in relation to time limitation. In the case of Meneja Mkuu, Shirika La Umeme Zanzibar vs Juma Simai Mkumbini & Others (Civil Appeal 41 of 2010) 120111 TZCA 127 f 12 December 2011), at page 3, the Court of Appeal held: "Secondly, in determining the jurisdiction of a civil court the averments made in a plaint are material. In effect, this means that theJurisdiction of a court should normally be determined on the basis of the case put forward by the plaintiffin the plaint and not by the defendant In the written statement of defence." On the principle set above, it is apparent that in this case, the facts constituting a cause of action are elaborated in the contents of paragraphs 4, 5, 6, 7, 8 and 9 of the Plaint. The basis of the claim is based on the Defendant's conduct as a mobile service provider which facilitated his alleged abduction on 29th day of July 2019 by people who are alleged to be police officers. The plaintiff is aggrieved by his mobile phone's loosing network connectivity from 27th July 2019 to 29th July 2019, a matter which was 15 reported to the Defendant who failed to resolve his network connectivity problem. There are also allegations that the Defendant provided to the Police officers a printout of his mobile money account transactions and access which led to his alleged abduction. As for the reliefs sought, it is the plaintiff's prayer for judgment and decree against the Defendants jointly and severally as follows:- (a) The Defendant pay the Plaintiff the sum of USD 10,000,000 as per para. 3 herein; as specific damages. (b) The Defendant pay the Plaintiffgeneral damages which will be assessed by this Honourable Court. (c) The Defendant pay the Plaintiff Interest on the decretal amount at the court's rate from the date ofJudgment till when payment is made In full; (d) The Defendant pay the Plaintiffs costs of and incidental to the suit; (e)Any other relief (s) that this Honourable Court may deem fit, Just and equitable to grant. Notably so, the plaintiff has prayed for judgment and decree against the defendant for specific damages at the tune of USD 10,000,000 and 16 further prayer for general damages as may be assessed by the court. It is hence obvious that from the pleaded facts and the reliefs sought, the matter before me is of civil nature, a suit on tort and reliefs sought herein can only be granted by a Civil Court and not a criminal one. Therefore, Mr. Madeleka's argument that the matter is of criminal nature is not only absurd but it is a clear indication that the Counsel is not sure of the claims that he has initiated in this court on behalf of his client. The findings above are however conclusive that the matter at hand is a Civil matter and the nature of claim is a Tort. That being the case, the cited case of Harry Msamire KitHva & Others vs Republic (Criminal Appeal No. 498 of2022) (20241TZCA 388 (23 Mav2024) is inapplicable in this case because the cited case the appellants were aggrieved by the decision of the High Court (Corruption and Economic Crimes Division) at Dar es Salaam, dated 19th August, 2022, in Economic Application No. 02 of 2022. In the said application, the High Court refused to grant extension of time to file an application to set aside the conviction, sentence and orders made against them on 25th August, 2020 obtained from plea bargaining process. While in the cited case the Court sat in appeal in Criminal proceedings, the current case is one of Civil nature hence the situation is distinguishable from this case. This now takes me to 17 the crucial issue on whether the suit before me is time barred. It was Mr. Nyika's submission that from the contents of paragraphs 3 and 13 of the plaint, the Plaintiff alleges that the Defendant used the telecommunication services she is licenced to provide to the Plaintiff to facilitate his abduction on 29th July 2019. That since the Plaintiff has alleged that the Defendant facilitated his abduction on 29th July 2019, then the Plaintiff's cause of action accrued or arose on 29th July 2019 when he was allegedly abducted and therefore, in terms of item 6 of Part I of the Law of Limitation Act hence the said accrual expired sometimes on 28th July 2022 and therefore, this suit which was filed on 30th May 2024 is hopelessly time barred. Unfortunately, Mr. Madeleka did not make any substantive reply on the objection, he sought refuge to the argument that the matter before hand is a criminal one and not a civil matter, that has been cleared above and I have already determined that this is a civil suit. I will therefore consider Mr. Nyika's submission. Indeed, the facts constituting a cause of action and when it arose are found on para 3 of the plaint where the plaintiff averred that: "That the Plaintiff's claim against the Defendant is for the sum of United States of America Dollars Ten Million (USD 10,000,000), 18 which is equivalent to Twenty Eight Billion Tanzania Shillings (TZS 28,000,000,000) being Specific damages for facilitating his abduction in 2019." Further at para 6, 7 and 8 of the plaint the plaintiff pleaded: 6. That, on Monday, the 29^ day of July 2019, at around 10:00 am, the Plaintiff called Vodacom Customer Care again to complain that he needed to withdraw money from his mobile wallet to buy medicine for his sick mother. The Vodacom Customer Care who represented him, asked him to wait until she consulted her senior manager. She returned a few minutes later and explained to him that his case was very sensitive and beyond their ability to resolve. They insisted that he should report to their Miimani City Offices that morning. 7. That, the Plaintiffs Mobile phone abruptly begun functioning at 3:00 pm on the same date (the 29^ day ofJuly 2019). The Vodacom Customer Care representative called and asked the Plaintiff to explain the problem to her. After explaining for at least three minutes, she hung up and promised to call back. Approximately three minutes later, the Plaintiff received 19 another call from a male on the phone number using Vodacom customer care line, who asked him to explain his whereabouts. The line had deafening and grinding noises as if the call was being recorded. Before the Plaintiff could hung up, he had the Vodacom Customer Care representative murmuring that tiie Plaintiff was at his house and added "move doser to his house". 8. That, the statement shocked the Plaintiff who ran to the top floor ofhis house and saw several strange motor vehicles near his house. Four people introduced themselves as Police Officers through the intercom but refused to produce identification. They handcuffed him and held incommunicado for two days. From those averments, it is obvious that the plaintiff's claim arises from the alleged wrong committed by the defendant in the year 2019 hence that is the time when his cause of action against the defendant accrued. This being a suit for damages out of loss incurred by the plaintiff due to alleged defendant's acts, then it is a tortious liability suit whose time limitation as provided for under item 6 of Part I of the Schedule to the Law of Limitation 20 Act is three years. Counting from the 29th day of July 2019, at around 3.00 pm when the cause of action arose (para 7 of the plaint) to the 31st day of May 2024 when the suit was electronically filed in court, a period of three years had lapsed. In fact, the limitation period ended on 30th July 2022. In conclusion therefore, the first point of objection is hereby sustained. The suit before me is hopelessly time barred. That being the case, I could not even proceed to determine the objection raised by Mr. Nyika during his submissions as the matter beforehand is time barred leaving me with no jurisdiction to entertain it. Consequently, this suit is hereby dismissed with costs awarded to the defendant. JUDGE 21