kotra co ltd vs trans ocean shipping t ltd 2007 tzhccomd 58 30 july 2007

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO 24 OF 2007 KOTRA COMPANY LIMITED... PLAINTIFF VERSUS TRANS OCEAN SHIPPING TANZANIA LIMITED....................... DEFENDANT RULING Date of final submission June 13, 2007. Date of Ruling July 30, 2007. MJASIRI J The Plaintiff is claiming from the Defendant the sum of USD 85,530.80 for failure by the Defendant to deliver the Plaintiff’s vehicles. The Defendant has raised the following preliminary points of law: i 1.1 The plaint is incurably defective, incompetent ab-initio, as the Plaintiff has no cause of action against the Defendant. 1.2 The plaint does not comply with the mandatory provisions of the Civil 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 Boyd S.C.et al in Scruton on Charter parties and Bills of Lading 20th Edition and the case of Dunlop Pneumatic Tyre Co. Ltd V Selfridge & Co. Ltd 1915 AC 847. In order to determine whether 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: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise ofjudicial discretion. ” This decision has been followed by the Court of Appeal of Tanzania in various decisions one of them being Shahida Abdul Hassanali Kassam V Mahedi Mohamed Gulamali Kanji (application No.42 of 1999 unreported). As the preliminary objections raised by the Defendant require going into the evidence, they cannot therefore stand as 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 raised by the Defendant has to be ascertained by a document. This means that this is a question of fact which has to be established by evidence. In relation to the preliminary objection raised that the claim is frivolous, vexauous and abuse of the process of the court, the said preliminary point is interlinked with the other preliminary objections raised and cannot therefore stand alone. It is therefore my finding that the preliminary objections raised are devoid of any merit and are hereby dismissed with costs. Sauda Mjasiri Judge July 30, 2007 870 words 4