jangid global fzc vs jangid plaza limited 2022 tzhccomd 119 12 may 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 146 OF 2021 JANGID GLOBAL FZC VERSUS / W JANGID PLAZA LIMITED....... ^—.“7^...^.. DEFENDANT Date of the Last Order: 11/04/2022 ' Date of the Ruling: 12/05/2022 RULING NANGELA/X;) On '20th .December 2021 the Plaintiff filed this suit [\ y seeking for/judgment and decree against the defendant as follows: (a) An order declaring that the defendant has breached the agreement. (b) An order for payment of US$ 1,690,921 arising from the Page 1 of 12 price of various building and finishing materials owed to the Defendant. (c) An order for payment of interest in the amount referred to in paragraph (b) above at the rate of 12% per annum from the dates when the y invoices fell due to the datezOf"y filing this suit. \\ (d) Further intezrest dn the amount referred - to. IrQ paragraph (b) 7 Xk > ,above at tne rate of 12% per StanuifrTrom the date of the X /d—-filing of this suit to the date of judgment. (e) Further interest on the decretal sum from the date of judgment to the date of actual payment. (f) An order for payment of an amount of USD ($) 200,000, being damages for the loss Page 2 of 12 suffered as stated in paragraph 8 of the Plaint. (g) An order for payment of costs. (h) Any other relief the Court may deem fit and just to grant. On 31st January 2022, the Defendant filed its written statement of defence (WSD). In its WSD, tfie^Defendant raised a preliminary point of law, to wit that,, thejdaim in this suit is time barred pursuant to Section 3 of the Law of Limitation Act, Cap.89 R.E 2019;, as read together with Part 1 item 7 of the schedule thereto. On the 3rd day of March 2022, the parties appeared in Court whereby the Plaintiff enjoyed the services of Mr Pladius Mwpmbekif learned advocate, while Ms Shiza 6'" Ahmed John, learned advocate, represented the Defendant. On that material date, it was agreed that, the Preliminary Objection (P.O) should be disposed of by way of written submissions to be filed as per the schedule given by the Court. Both parties duly filed their. Page 3 of 12 submissions which I will summarize here below before I consider their potency and deliver a verdict on the P.O. Submitting in support of the P.O, it was Ms Shiza's contention that, the Plaint was filed in this Court out of time and, hence, it should be struck out for being time barred. She stated that, the Plaintiff's claims emanated from an alleged breach of contract. She pointed out, however, that, the Plaint was filed in^Court/aftef the lapse of six years from when the cause of: action arose and, hence, filed in total disregards of Part I item 7 of the Law of Limitation Act, Cap. 89 R^ 2019. She submitted that/as a matter of legal principle, the pleadings include annexure to the Plaint. According to Ms f Shiza, a? careful look at Annexure CRB AL/J1 collectively, which include the invoices the Plaintiff sent to the Defendant will tell the story. Ms Shiza contended that, in the absence of an agreement for the alleged supply under the suit, each supply envisaged in the respective invoices would constitute an individual agreement and a Page 4 of 12 specific claim for that supply whose terms, including those related to payment are provided therein. According to Ms Shiza, each invoice provides, among other things, for a specific date on which it was raised, amount payable and time of payment. She noted that, the date noted on the specific invoices shows that they were /\ raised between 11th February 2014 and 2nd September 2015. She was of the view that, since the Plaint does not state when the breach arose, the same should be inferred from the Annexure CRB-AL^l^ Relying on section 6(ar^of'me Law of Limitation Act, Cap.89 R.E 20l^she^contended that, the last action took place in//-4iezjin~-day of September 2015 as per the attached^invoices. As such, she argued that, the expiry date for<any claim based on them should have been the 2nd day of September 2021. She contended further that, what the Plaintiff alleges in paragraph 4 of the Plaint is not the exact date regarding when the cause of action arose. She surmised that, the Page 5 of 12 reality was that, the last transaction took place in September 2015. In view of the above, the learned counsel for the Defendant submitted that, according to section 3(1) of the Law of Limitation Act, Cap.89 R.E 2019, once a matter is time barred the only available remedy is a dismissal of the matter at hand. To support her submissions, sheTelied on the case of Sarbjit Singh Bharya and Sharya \x Engineering & Contracting Co. Ltd vs. NIC Bank Tanzania and Straight Line Auction AMRT, Civil Appeal No.94 of 2017 (unreported). Replying to the Defendant's submissions, it was Mr Mwombeki's submitted that, the Defendant is misled in finding the claim as being time barred. He submitted that, according to the case of Mukisa Biscuits Manufactiring Co. Ltd vs. West End Distributors Ltd [1969] EA 696, a preliminary objection must be a pure point of law. Relying on the Court of Appeal decision in Karata Ernest & Others vs. AG, Civil Revision No. 10 of 2010 (unreported) he contended that, the point raised by the Page 6 of 12 I Defendant is not a pure point of law but one which is a mixture of law and facts, hence, should not be entertained. According to the Plaintiff's counsel, the Defendant never paid the claims and her refusal was clear to the Plaintiff in 2021, vide the Defendant's letter dated 24th September 2021, responding to the Plaintiff's letter dated 21st September 2021 (Annexure CRB/AL/J2)X ?/ \\ Mr Mwombeki submitted further that, in the Annex.CRB/AL/JGl attached to tijeT WSD filed by the Defendant, it is shown howthe Defendant was settling the outstanding amount, and that, the Defendant had settled more than one inyoice in one of the deposit slips, the paymentswhich the Defendant made in December 2015. He contended that, the Defendant was in a continuous breach. To support that assertion, reliance was placed on what section 7 of the Law of Limitation Act, Cap.89 R.E 2019 provides. In his further submissions, Mr Mwombeki Page 7 of 12 distinguished the case of Sarbjit (supra) as being distinguishable from the facts of the case at hand. In a brief rejoinder submission, Ms Shiza reiterated her position. She contended that, what the Defendant has raised is a pure point of law. She submitted that, the objection emanates from the clear implication of the pleadings, short of which the Plaint should be rejected for V’. " missing facts which reveals when rthe 'cause of action arose consistent with Order VII /rule (e) of the Civil Procedure Code, Cap.33 R.E 2019/ Ms Shiza did also brush aside the assertions that the claim falls under a // continuous breach,arguing that, that fact is not part o the pleadings. In view of that, she invited this Court to sustain the objection.//'- Having carefully examined the rival submission made by the learned counsel for the parties herein, the question which I am supposed to respond to is whether the objection has any merit in it. To start with, it is a cardinal principle of law that, annexures to the Plaint or to the WSD form part of it and, Page 8 of 12 hence, constitute pleadings for which the parties are duly bound by them. The case of SIKEM Real Estate Developers Ltd vs. Serengeti Breweries Ltd, Commercial Case No.3 of 2020 (unreported), supports that view. In the same case, this Court, citing the case of Josephat Muniko vs. North Mara Gold MineLtd, Commercial Case No.9 of 2019, held'that, the contents of the Plaint have to be read/togetherSin their totality, including the Annexures attached thereto. Secondly, it is/indeed>true that for a preliminary objection to be accepted as a point of law it has to be one 'z/ that meets thestandard set out in Mukisa Biscuits' case (supra). Even jsd, an objection relating to limitation of time to bring-jan action before the Court is a point of law since, if established it has the potential to end up the matter without further ado. As such, the Defendant's objection falls within the parameters set by the Mukisa Biscuits' case (supra). Page 9 of 12 Thirdly, as this Court observed in the SIKEM's case (supra), most authorities hold that, a cause of action for breach of contract crystallizes as soon as the breach has occurred. In that case, this Court, citing the English case of Nyredit Mortgage Bank Pic vs. Edward Erdman Group Ltd (No.2) [1997] 1WLR 1627, observed, that: In cases of breach of contract. the cause of action arises at the; A v date of the breach of contract/^ Looking at the annexures to the Plaint which the learned Counsel has relied^upon to premise her objection there on, it is clear thajt,_tt^ dates of the invoices which form the ba^of the claim stated in paragraph 6 of the Plaint, range from 11th February 2014 to September 2015. As correctly submitted by the learned counsel for the Defendant, the Plaint does not state the exact date when the alleged breach of contract arose. It only gives a range of dates as being between March 2014 and June 2016. In the absence of such clarity, one has to resort to the Page 10 of 12 annexed invoices and the last one is Invoice No.0026 dated 2nd September 2015. From those invoices, one would assume, as rightly contended, that, the cause of action arose when the last invoice was received, i.e., the 2nd of September 2015. Counting from that date, the claim ought to have been raised on the 2nd day of September 2021 the latestxi^my view, the cause of action can neither besaid to have arisen when the demand letterwasrsent\to the Defendant -4 \ in 21st September 2021 nor wh^n some payments or / a. y' deposits were made/.as pefAnnex.CRB/AL/JGl. As a a matter of fact; that annex does not even show which invoices Were settled: / In vixew>f those findings, the claim is time barred \\ / and, ,a claim which is time barred is as good as no claim at all. According to section 3 (1) of the Law of Limitation Act, Cap.89 R.E 2019, once a matter is time barred the only available remedy is an outright dismissal of it. In the upshot, I hereby uphold the Defendants objection and state that the suit is time barred as it was Page 11 of 12 filed out of time. In view of that, I hereby dismiss the entire suit with costs. It is so ordered. Right ofAppeal Explained. ill HON. DEO JOHN NANGELA X JUDGE High Court of the United Republic of Tanzania (Commercial DivisionJiX >' 12/ 05 /2022 y Page 12 of 12