20070730 TZHC Dar es Salaam

I I IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) . I AT DAR ES SALAAM j ! COMMERCIAL CASE NO 24 OF 2007 I I KOTRA COMPANY LIMITED ... PluAINTIFF ' I VERSUS I TRANS OCEAN SHIPPING I TANZANIA LIMITED ... ~- ............... I>EFENDANT i ' I I I RU LI ING I i . Date of final submission June 13, 20p7. 1 I Date of Ruling July 30, 2007. I I MJASIRI J I The Plaintiff is claiming from the Defendant . I the sum of USD 85,530.80 for failure by the Defendant to deliver the 1 Plaintiff's ;ehicles. I I The Defendant has taised the f~llowing 1 . . pre11m1nary po1n I . t so f 1aw: I j I 1 I' I 1.1 The plaint . lS incurably , defective, incompetent ab-initio, as the Plaintiff has no cause of action against the Defendant. 1 I 1.2 The plaint does not comply with the mandatory provisions of the 6Jivil Procedure Act. 1.3 The claim is frivolous vexatious and an abuse of the process of the court. The Defendant submitted that the plaint is incurably defective incompetent ab-initio, as the Plaintiff has no cause of action , against the Defendant based on a Bill of , lading. The Defendant made reference to Boyq. S.C.et al in Scruton on Charter parties and Bills of Lading I th 20 Edition and the case of Dunlpp Pneumatic Tyre Co. Ltd V Selfridge & Co. Ltd l,'915 AC 847. In order to determine whetI1er the plaint discloses a cause of action or not ' the Bill of Lading has to be examined. This therefore is a 2 question of evidence. In Mukisa Biscuit Manufacturing Company Limited v: West End Distributors Limited 1969 EA 696 it was held as under: I I "A preliminary objection is in the nature of ' what used to be a demurrer. It raises a pure ' point of law which is arg4ed on the assumption that the facts pleaded by the I other side are correct. It canno~ be raised if ' any fact has to be ascertained or if what is I I sought is the exercise of judicial ;discretion. " I I This decision has been followed by:' the Court of Appeal of Tanzania in various decisions one of them being Shahida Abdul Hassanali Kassam V I I Mahedi Mohamed Gulamali Kan.Ji (application No.42 of 1999 unreported). As the preliminary I I objections raised by the Defendant:require going I into the evidence, they cannot ther~fore stand as I preliminary objections. 3 The absence of a cause of action and the non compliance with the mandatory provisions of the Civil Procedure Act in the context 1aised by the Defendant has to be ascertained by a document. This means that this is a question @f fact which I has to be established by evidence. In relation to the preliminary objection raised that the claim is frivolous, vexauousl and abuse of I • I the process of the court, the sa1q. preliminary point is interlinked with the other preliminary objections raised and cannot therefore stand alone. It 1s therefore my findink that the I preliminary objections raised are 1evoid of any I merit and are hereby dismissed with costs. Sauda Mjasiri Judge Julv 30, 2007 I Certify that t 1, is a ,rue and correct 870 words et t ~~rn=rt~~lua]~!!!:':!:.'h uII in& Sirn______ ··-· -··--·---- 1\egistrar C urt Osm • ..Date ••.. -· /t.J.--1- ..?4-- 4