juma shamte mtambo vs john roussous others 2005 tzhc 207 25 july 2005

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 457 OF 2002 JUMA SHAMTE MTAMBO........... PLAINTIFF Versus 1. JOHN ROUSSOUS ) 2. NATIONAL INSURANCE COPRORATION (NIC) )......... DEFENDANTS 3. THE PRESIDENTIAL

PARASTATAL SECTOR

REFORM COMMISSION (PSRC) )

RULING ORIYO. J . One late Dr. Mohamed Mtambo was involved in a fatal car accident on 24/11/97 in Iringa. The accident was allegedly caused by a Bedford Lorry with registration No. IR 4588 which belonged to the first defendant. Pursuant the death, the plaintiff was granted letters of Administration over the Estate of the late Dr. Mtambo on 29/9/98. 1 The plaintiff filed this suit for damages against the owner of the motor vehicle as the first defendant; the NIC as the insurer of the motor vehicle, as the second defendant and PSRC, as " deemed" Receiver / Manager of NIC as the third defendant. The plaintiff prayed for the following orders: (0 Shs. 30,000,000/= for loss of life (ii) Shs. 20,000,000/= for loss of expected income (iii) General damages (iv) Exemplary damages (v) Costs. The suit was filed on 20/12/02. In their written statements of Defence the defendants raised three points of preliminary objections as follows:- (a) The plaint disclosed no cause of action (b) The plaintiff has no locus standi to sue the second defendant (c) The suit is time barred. Parties argued the preliminary objections by written submissions which were duly filed. 2 I will begin with the third preliminary point of objection in law, that the suit is time barred. In order to determine the issue whether the suit is time barred or not, the chronological order of the three important events is

necessary. The deceased died on 24/11 97; the Letters of Administration of the Deceased Estate were issued on 29/9/98;and the suit was initiated by filing an application for leave to sue on 24/4/01. The Law of Limitation Act, 1971, prescribes by its SECTION 4 that the period of limitation begins to run from the date on which the right of action accrues; that is the date the cause of action arises. However in cases of death, computation of time begins to run from the date that the Letters of Administration of the estate of the deceased are issued to the administrator; pursuant to the provisions of SECTION 25 (1), Law of Limitation Act, which provides:- Where a person dies after a right of action in respect of any proceeding accrues to him, the time during which an application for letters of administration or for probate have been prosecuted shall be excluded in computing the period of limitation for such proceeding." Pursuant to the provisions of SECTION 46, Law of Limitation Act; read together with the Law Reform ( Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap 360, provide for a period 3 of 6 months within which to institute proceedings. SECTION 9 (3) (b), Cap 360, provides that no proceedings shall be maintainable in respect of a cause of action in tort which has survived in respect of deceased estate UNLESS such proceedings have been taken within a period of

six (6) months after the executor or administrator took out representation. Counting six months from the date the plaintiff was granted the letters of administration on 29/9/98; the application for leave to sue ought to have been filed by the end of March 1999; when the period of limitation expired. The application was filed on 24/4/01 which was two years after the prescribed period of limitation had expired; without obtaining an extension from the Minister responsible for legal affairs pursuant to the provisions of SECTION 44 (1), Law of Limitation Act. On the foregoing, I uphold the defendants objection that the suit is time barred. Accordingly it is dismissed pursuant to the provisions of SECTION 3 (1), Law of Limitation Act. For obvious reasons I will not consider the other points of objections set out above. In view of the circumstances, I make no order for costs. K. K. Oriyo

JUDGE 25/7/05 673 Words 4