19940819 TZHC Dar es Salaam

ID Tl-{E HI3-H \·rnm1~- O:F TANZANIA AT :JAR ES SALMI-·: ----•------- CIVIL C~\SE J::,n. 50 OF 1992 !-I/S CHENGULA .ARTS .'J1:D EAtTDCRA..t!1TS EXPORT CO. • • 0 PLAINTIFF Yersus "I THE DIRECTOR GENER.1-1.1 1 TANZANI.b. HARBOURS AJThORITY e C 8 Q O • • 0 C o • • • Q • • • e • DEFEN"'"DANT -RULING ~\ A~ the comm$ncernE:nt of the hearing ~f thts suit, M\ss Bayqna, counsel for the ~~f~ndant ra~~ed a preliminary ~bj~c~igR by submitting that the sµit, ts timeTbarr~~• She- urged the court to dismiss the suit. Mr. K9m~a, th§ Director •-~ the Pla:i_.ntiff Ccmpany, ~--.:,.id that the sutt wa'f3- net time- ~arred, , ae it w~s filed in time. Niss Bayr;•na I s ground for asking the court te dismiss the suit is based on section 67 (b) of the Tanzania Harbours Authqrity Act, No. 12 ~f 1977 which provides in part as folJ.tws:- '<' . 11 the c:iction 3r legctl proceeding shall not lie or ·bF; inst·j_ tut eel unless it is commenced 'Iii ti:..in "'.iwE,l vs :·:10nths next· after the act, ne 6 lcct in.~ defau:L t cm1plaili?d of f>r, in the 0.3,.se c,f a continuing inJ Ln·y u: damage, within six months next nftEr the csssation thereof. 11 The plaint alleges t~~t Jn 9 January, 199) the ' plaintiff handed o,,:,._r 1e;ood.s ~o the Defendant for shipment te Germ~ny on 1J J~nu~~Y 1990. r; is alleged tbat the · Defendant fail0J or ~sgl~cted to load the cargd Jn the ' ~ date agreed 1 ~;~d iustesd load2d the c~ttle horn tips on· 27 February 199~. 1 ih~ deiay c~used loss to the PlAintiffs for the buyEra refJa01 to a~ce1t tnc carg~. The plaint further. all~~g<iis that tht:; :Def 8ncl.3,nts were served with ntti~ Ii intontirn t( . sue •n 25 ..1( ~vernl)Br 1991, but refused t• pay d3tJ1ages; , - 2 ..:. Accordin~ t- Miss Bayona, the suit should have been filed withi1! t~~~~a months from g January 1990 the date the Defendc:-.. n-<:- •-~-J..<::gr_:;dly neglocted to transport the cargo, that is, by~ ~w1uary 1991. But this suit was filed on 10 February :;9~. Mr. Komba's contention is that th~ cause of acti0n arose on 30 October 1991 when the Defendant refused to p~y thE claim for damages. He said that he filed the suit in time, within the period of twelve months after the Def2ndant 1 s refusal to pay the amount claimed. In my view, section 67 (b) of the Tanzania Harbours Authority'_Act, is mandatory. It requires anyone wishing to sue the· Authority to file: the suit 17 within twelve months next after ths act neglect or- default complained rf 11 • The Defendant, according to the plaint, is alleged to have neglected to load the cattle horn tips on 16 Januarj 1990, The ship left for Ger;_many without the cargo. The provisions of s~etion 67 (b) of the-...Act are· clear and unambiguous. No action or J.8g2: proceeding shall lie or be instituted against the T3nz~nia Harbours Authority unless it is corr.menced within twelve months next after the neglect, act or default complained ofo· There is nothing in those provisions v.!~.:.ic11 can be j.ntended to mean that a suit may be filed aftur the Harbours Authority refuses to pay the amount claimed. In my opinion, the period of twelve months is computed from the date of the alleged act, neglect or def~ul~. I entirely agree with Miss Bayona that this suit is time-barred, for tt was filed more than twelve months after the alleged neglect by the Defendant. The suit is I dismissed with costs. W. J. IviAINA JUDGE Dar es Salaam 19 August 1994 Plaintiff - Mr. Komba --present Miss Bayona for the .JJ..t:'. e~enaan.t * =:::-, ... , . . ,,,. ., ,~i ' ,;. .. ,.. ,. . (,