LRM INVESTMENT CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DARES SALAAM MISC COMMERCIAL APPLICATION NO. 290 OF 2017 (Arising from Commercial Case No 47 of 2017) BETWEEN 1 LRM INVESTMENT COMPANY LTD------------------------------------------------ st APPLICANT 2 CENTRAL PARIS COMPLEX COMPANY LTD------------------------------------ nd APPLICANT 3 DIDAS PATRICE MOSHI------------------------------------------------------------------- rd APPLICANT 4 AZILA DIDAS MUSHI----------------------------------------------------------------------- th APPLICANT 5 CAROLINA DIDAS MUSHI---------------------------------------------------------------- th APPLICANT 6 LILIAN DIDAS MUSHI--------------------------------------------------------------------- th APPLICANT VERSUS DIAMOND TRUST BANK TANZANIA LTD------------------------------------------ RESPONDENT RULING SONGORO, J This is the Ruling on application for leave to appear and defend the summary suit filed by LRM Investment Company Ltd, Central Paris Complex Company Ltd, Didas Patrice Moshi, Azila Didas Mushi, Caroline Didas Mushi and Lillian Didas Mushi the 1st’ 2nd 3rd 4th 5th and 6th applicants respectively. In the application, applicants relying under Order XXXV, Rule 3(1) (c) of the Civil Procedure Code Cap 33 [R.E 2002] applies for leave to appear and defend the summary suit instituted by the Diamond Trust Bank Tanzania Ltd the Respondent. In view of the application, the court invited both parties to pursue the application, thus Mr. Semu Anael, Learned Advocate appeared for the applicant, and Mr Kesaria Learned Advocate appeared for the Respondent bank Thus when the application was due for hearing Mr. Dilip Kesaria, Learned Advocate of the Respondent bank, raised a preliminary objection that, the application for leave to appear and defend the summary suit is time barred in the sense that, the suit was filed on 19/4/2017 and the present application was instituted on the 11/9/2017. Page 1 of 5 The respondent counsel then argued that, since the applicant application for leave to appear and defend the summary suit was filed after the expiry of 5 months since the suit was filed thus, it is time barred and pursuant to Section 3 of the Law of Limitation Act Cap 89 is supposed to be dismissed. Clarifying his point, Mr. Kesaria pointed that, a summary suit was instituted against applicants and they have no automatic right to appear and defend the suit. In view of the above, applicants were required to file an application for leave to appear and defend the suit pursuant to requisite time fixed in Item 1 of Part III of the schedule of the Law of Limitation Act Cap 89 [R.E 2002]. The Respondent's Counsel then argued pursuant to Item 1 of Part III of the schedule to the Law of Limitation Act the applicant were under statutory obligation to file the application within 21 days from a date they were served with a copy of the plaint. The Counsel then informed the court that, applicants were served with a copy of the plaint on 12/5/2017. Then after being served with the copy of the plaint, applicants filed the Misc Commercial Application No 152 of 2017 and was struck out on 28/8/2017 because it was found to be incompetent and has a wrong citation. Then after the Misc Commercial Application No 152 of 2017 the applicant filed the present application on 11th September, 2017 without applying for an order of extension of time. Mr. Kesaria then stated that, it was his views and submission that, after the first Misc Commercial Application No 157 of 2017 was struck out, applicants would have filed application for extension of time within which to file an application for leave to appear and defend the suit because the requisite time of filing an application for leave to appear and defend the suit had already expired by then. He then indicated that, the applicants did not bother to file an application for extension of time and instead they straight filed a second application for leave to appear and defend the suit, while requisite time of 21 days had already expired. The counsel next, submitted that, since the current application was filed out of time then ought to be dismissed for being time barred Page 2 of 5 In reply to the preliminary objection on point of law, Mr. Semu Aniel replied that, the court record shows that, applicant filed an application for leave to appear and defend the suit as the Misc Application No 152 of 2017 and was struck out on the 28/8/2017. The counsel then they took a direction of the court that, they may file a fresh application because the first application was timely filed. He also explained after the first application was struck out the suit was fixed for necessary order on the 11/9/2017. So the applicant counsel indicated that, the current Misc Application No 270 of 2017 did not contravened any provision of the law. The counsel also indicated that, even in their skeleton argument they have applied for extension of time and even if the time is extended it will not prejudice the Respondent/Defendant or amount to abuse of court process. Next the applicant's counsel then prayed that, the court should not decide this matter based on technicalities. So the counsel prayed that, the preliminary objection be dismissed and the court grant an extension of time. In his rejoinder, Mr. Kesaria for the respondent stated that, so far there is no application for extension of time so a prayer for extension of time may not be entertained. Secondly, he pointed out that, as a matter of principle once a preliminary objection on point of law has been raised and argued it is improper for the court to circumvent the objection raised the only remedy available is to uphold an objection and dismissed the suit. Mr. Kesaria then argued that, even if the applicants were granted leave to file application that, may not amount to waiver on compliance of the requirement of Law of Limitation Act Cap 89 on application for an extension of time within which to file an application for extension of time within which to file an application for extension of time. He maintained his preliminary objection that, since the present Misc Commercial Application No 290 of 2017 was filed out of time and is time barred then the court ought to dismiss. The court has subjected the arguments of both counsels in close scrutiny and find the Commercial Case No 47 of 2017 which is a Summary Suit was filed on 19th April, 2017. Secondly Page 3 of 5 it found on the 15/5/2017 Mr. Joseph Ngoile, Learned Advocate appeared for defendants and reported that, they have been served with copies of the plaint. Then Mr Ngoile was granted time to 29/5/2017 to file an application for leave to appear and defend the summary suit and the application was filed on 29/5/2017. Then on the 28/8/2017 the Applicant Misc Application No 152 of 2007 was struck out on the ground that, it was made under the wrong provision of the law. Subsequently, on 11/9/2017 the applicant filed another application. As pointed out by Mr. Kesaria that, from mathematic point of view if one counts days from a day applicants counsel reported that, they were served with a copy of the plaint on 15/5/2017 to a day the current Misc Commercial Application No 152 of 2007 was filed on 11 /9/2017 a period of about five months had expired, while the law provide for 21 days to applicant to file such an application. The applicant's counsel tried to apply for an extension of time to file another application while the application for leave to defend the suit which was file late was under the preliminary objection on point of law was in court. I have considered the plea of extension of time made by the applicant's with the weight it deserve, but honestly, the court find the legal consequences of any proceeding which is filed after the expiry period of limitation is stated in Section 3 of the Law of Limitation Act Cap 89 R.E 2002 that, such proceeding have to be dismissed. Indeed the section provides that;- “Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefor opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence” Likewise, the same legal position was stated by the Court of Appeal in Civil Appeal No 79 of 2001 between Hezron Nyachiya Versus Tanzania Union of Industrial and Commercial Workers and others were the court remarked that;- Page 4 of 5 “Generally speaking, the Law of Limitation plays many roles including the following: One, to set time limit within which to institute proceedings in a Court of Law. Two, to prescribe the consequences where proceedings are instituted out of time without leave of the court. ” Taking into account that, the applicant application was filed after the expiry of the prescribed time of filing an application which is 21 days and was filed after the expire of five months, it was prudent for applicant before filing the second application, to apply for an extension of time. Since, Section 3 of the Law of Limitation Act Cap 89 [R.E 2002] statutorily instruct that, the application filed after the expiry period of 21 days, and it was filed about 5 months from the day there were served with a copy of the plaint, the application has to be dismissed. In that regard I hereby pursuant to Section 3 of the Law of Limitation Act Cap 89 proceed to dismiss the Misc Commercial Application No 290 of 2017 with costs in favour of the respondent. Dated and Delivered at Dar es Salaam this 13th day of July, 2018 The Ruling was delivered in the presence of Ms. Lilian Kabagaile, Learned Advocate holding a brief Mr Semu, Learned Advocate of the applicant and also holding a brief of Mr. Dilip Kesaria, Learned Advocate of the Respondent's bank. Page 5 of 5