20060601 TZCA Dar es Salaam 2

4. * IN THE COURT OF APPEAL OF TANZANIA ;4 0, AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., MUNUO, J.A, And KAJI, J.AI) CIVIL APPEAL NO. 48 OF 2000 JAN HOLDINGS (T) LIMITED ....I...........I.SI...I........APPELLANT VERSUS PACIFIC INTERNATIONAL LINE (PTE) LIMITED THE OWNER OF M.V. SEA EXPRESS ............... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Chipeta, 3) dated the 4th day of February, 2000 in Civil Case NO. 222 of 1998 JUDGMENT OF THE COURT 26 May & 6 June 2006 MUN.UO, 1A1: In Civil Case No. 222 of 1998 in the High Court of Tanzania at Dar es Salaam, the suit was dismissed on the 4th February, 2000 by Chipeta, J. as he then was, for want of a cause of action. Dissatisfied with the decision of the High Court, the plaintiff, through the services of Mr. Rutabingwa, learned advocate, lodged the present appeal. Mr. Kesa na, learned advocate, represented the respondent. 2 In his two grounds of appeal, counsel for the appellant contended that the learned judge erred in holding that the appellant was not a consignee under the bill of lading in dispute. He maintained that the said bill of lading was negotiable so the appellant who was in possession of the material bill of lading was entitled to sue on it. In ground two, counsel for the appellant contended that in law and on evidence, the learned judge erred in holding that the appellant under the bill of lading had no locus standi to sue for Kibo Pulp and Paper Board Mills, ought to have sued. Counsel for the respondent supported the decision of the trial judge. He argued that the invoices annexed to the plaint were addressed not to the appellant but to Kibo Pulp and Paper Board Mills so the appellant could not sue on the bill of lading which, he further contended was not negotiable in any event. (I) The issue is whether the pleadings in the plaint at Pages 1 to 4 of the record of appeal disclose a cause of action. C 3 The word cause is defined at Page 213 of Black's Law Dictionary, Seventh Edition by Bryan A. Garner, West Group, Sr. Paul, Minn. 1999, as: Cause - to bring about or effect. U We are of the settled mind that paragraphs 3 to 9 of the plaint clearly show that the appellant has a cause of action against the respondents. The latter undertook to carry bleaching powder and deliver the same at Dar es Salaam harbour in Tanzania. The bleaching powder would eventually be sold to Kibo Pulp and Paper Board Mills at Moshi. The said factory had ordered 20,000 kilograms of bleaching powder from the appellant. It so happened that the bleaching powder was destroyed by fire at sea so the appellant who ( had ordered it for Kibo Pulp and Paper Board Mills, and who was in possession of the bill of lading, rightly sued the ship owner Of the 1) bleaching powder because the bleaching powder they ordered was destroyed by fire on transit aboard the respondent's ship. Hence, the plaintiff has a cause of action against the respondent ship owner. Under the circumstances we quash and set aside the decision of the court below and order that the suit be determined on merit. 3 , U in For the avoidance of doubt, we wish to observe that matters relating to the type of bill of lading, the order of the bleaching powder by Kibo Pulp and Paper Board Mills etc. cannot be decided at this stage. Such matters would be reflected in the evidence, if deemed relevant, during the trial. In view of the above, we allow the appeal with costs. (:1) DATED at DAR ES SALAAM this 01st day of June, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL I S. N. KAJI JUSTICE OF APPEAL C) I certify that this is a true copy of the original.