METMAR TRADING VS K K CARGO LOGISTICS T LTD COMM CASE NO 201 OF 2017 RULING HON

IN THE HIGH COURT OF TANZANIA

COMMERCIAL DIVISION

AT DARES SALAAM COMMERCIAL CASE 201 OF 2017 METMAR TRADING (PTY) LIMITED------------------------------------------------------PLAINTIFF

VERSUS K&K CARGO LOGISTICS (T) LIMITED--------------------------------------------- Ist DEFENDANT ALFRED H. KNIGHT TANZANIA LIMITED----------- -------------------------- 2nd DEFENDANT

RULING SONGORO, J This is a ruling on three preliminary objection on points of law filed by K&K Cargo Logistics (T) Limited and Alfred H. Knight Tanzania Limited defendants objected that, the suit filed by Metmar Trading (PTY) Limited, the plaintiff is time barred. Secondly the presence and existence of plaintiff suit in court, amount to abuse the court process because previously there was a similar suit involving the same parties and same cause of action. Thirdly the plaint is incompetent before the court for being drawn and filed by an, Advocate who was barred by the court. In view of preliminary objection on points of law defendants prayed to the court to dismiss the suit with cost in favour of the defendants. In the light of three preliminary objection on points of law, the Court invited the parties to pursue the preliminary objections on points of law by a way of written submissions. So Mr Dominic Daniel, Learned Advocate acting for the Defendants filed his written submission in support of three objections. While Ms. Sheikh Learned Advocate also filed a written submissions to oppose the objection raised. In pursuing the 1st ground of preliminary objection which reads that, the plaintiff suit is time barred, the Defence Counsel pointed out that, the filed suit is based on breach of contract which the cause of action aroused on 10th November 2008 and ordinarily the suit

based on contract was legally supposed to be instituted in a court of law within 6 years from the date the cause of action aroused and that, was 9th November 2014. Page 1 of 8 Relying on paragraph 7 of the Schedule of the Law of Limitation Act Cap 89 R.E 2002 which set a legal requirement that, suit found on contract ought to be filed with six years and plaintiff commercial court No 201 of 2017 was instituted on 28/12/2017 after the lapse of six years certainly the suit was instituted after the expiry of requisite time of filing a suit arising of contract. In that, regard the defence counsel submitted that, pursuant to Section 3 (1) of the Law of Limitation Act Cap 89 RE2002 which statutorily requires that, any suit filed after the expiry of the period of limitation must be dismissed, he continue to press for the dismissal of the plaintiff suit on the ground that, is time barred. Moving to his second point of objection the defence counsel pointed out that, before institution of the present Commercial Case No 201 of 2017, the plaintiff instituted Civil Case No 110 of 2011 involving the same parties, same cause of action and prayed for the same reliefs which contained in the present suit. He then elaborated to the court that, the Civil Case No 110 of 2011 was struck out after the court found its speed truck has expired. Next, the plaintiff filed Misc Application No 57 of 2017

applying for a court order to depart from previous scheduling order. The counsel submitted the application was also dismissed by Hon Kitusi J on 8/11/2017 on the ground that, the application was time barred. It was the views and submissions of the defence counsel that, the remedy which was open to the plaintiff after the dismissal of the Civil Case Noll0of2011 was to apply to set aside the dismissal order and not to file another suit. Moving to the third ground of objection, the defence counsel pointed out that, the plaintiff's counsel who drew and filed the plaint in court is legally barred from representing the plaintiffs court. The defence counsel further clarified in his objection that, Ms. Hamida Sheikh, Learned Advocate was previously barred from appearing as an Advocate in Civil Case No 110 of 2011, which she personally affirmed an affidavit and by virtue of the affidavit which she affirmed was classified as a witness. It was the views and submissions of the defence counsel that, since Ms. Hamida Sheikh was barred from appearing as an Advocate in the Civil Case No 110 of 2011 thus is also barred to appear and represent the plaintiff in the present Commercial Case N 201 of 2017 on the ground that, since she depone the affidavit on behalf of the plaintiff thus is a witness in this matter and may be called for being cross examined. Therefore it was wrong for Ms. Hamida

Sheikh after Page 2 of 8 swearing and filing an affidavit on behalf of the plaintiff, to take up another assignment of drawing and filing a plaint on behalf of the plaintiff. Defendants counsel persistently maintained in his submission that, the plaint is bad in law and incompetent because was filed and instituted in court by an advocate who was barred to represent the plaintiff. Finally the defence counsel prayed to the court to dismiss the suit on the grounds that, the suit is time barred, the plaint is bad in law and similar suit was struck out for want prosecutions. Responding to the first preliminary objections on point of law, Ms Hamida sheikh Learned Advocate of the plaintiff pointed out at page 5 of her submission that, there is no dispute that, the cause of action of the present suit arose in November 2008. Also there is no dispute the cause of action is based on breach of contract which a period of limitation is six years. However, the plaintiff counsel submitted that, it’s true that, a suit which it cause of action is on breach of contract its time limit is six years. Equally she admitted that, a suit which is filed after expiry of the prescribed period fixed by law of limitation has to be dismissed. However, the defence counsel drew the attention of the court that, pursuant to Section 21(1) of the Law of Limitation Act Cap 89 R.E 2002, in computing the period of

limitation for the purpose of the present suit, a period which the plaintiff was prosecuting the High Court Civil Case NO 110 of 2011 and Misc Application No 57 of 2017 has to be excluded in computation the six years period of limitation. The Learned Counsel then informed the court that, the period to be excluded is from 22nd July, 2011 up to 8/11/2017 when the Misc Application No 57 of 2017 was struck. It was the views and submissions of Ms. Hamida Sheikh that, if the period which the plaintiff used to the above mentioned two proceedings is excluded as envisaged by Section 21(1) of the Law of Limitation Act Cap 89 then the court will easily found that, the plaintiff suit is not time barred and the objection has no merit. While on this point Ms. Sheikh applied that, the court exclude a period of six years and four months in computing the period of limitation as envisaged by Section 21(1) of the Law of Limitation Act Cap 89 R.E 2002 and find out that, the suit was filed within 2 years and 8 months thus is not time barred. Page 3 of8 Turning to the second point of preliminary objection that, the institution of the present suit and its existence in court is an abuse of court process, because similar suit with the same parties and same cause of action was filed by the plaintiff and dismissed, Ms Hamida Sheikh submitted the High Court Civil Case No 110of2011 filed on 22/7/2011 and

struck out on 8/11/2017. She then clarified that, the previous suit was struck out on the ground of want of prosecution and was not determined on merit. In that, regard, the plaintiff counsel informed the court that, since the High Court Civil Case No 110 of 2011 was not decided on merit, the plaintiff was at the liberty to file a fresh suit subject to the laid down procedure including the ones stipulated in the Law of Limitation Act. The plaintiffs’ counsel enlighten the court that, since the High Court Civil Case No 110 of 2011 was struck out on technicality and the time limit for filing a suit was yet to expire the plaintiff still has an option and requisite time of filing a fresh suit. Ms Hamida Sheikh then submitted that, the defendant's objection on point of law that, the filing of the present suit is an abuse of court process has no merit. Submitting on 3rd ground of preliminary objection that, the plaint is bad in law on the ground that, the Learned Advocate who drew and filed it in court was barred , Ms, Sheikh submitted that, the objection raised is not legally maintainable because is not based on any section of the law. In that, regard the third preliminary objection do not qualify to be a preliminary objection on point of law. Next, the plaintiff counsel submitted that, the defence counsel has not lead any proof that, the plaintiff counsel was barred by the court.

The plaintiff counsel then explained that, due to the explained reasons and others, he prayed to the court to dismiss the third and other objections for lack of merit. The court has fully considered three preliminary objections on points of law raised by the defence counsel and arguments from both sides and find it is ideal to deliberate on the first preliminary objection on point of law that, the suit is time barred then I will proceed with the second and third objection. Page 4 of 8 Admittedly when I perused the first preliminary objection on point of law, and submissions from both parties, I noted that, the plaintiff and defendants to a certain extent agrees on three common grounds. Agreed points by both parties are that; (1) the suit is based on breach of contract, (2) since the suit its cause of action is based on contract, pursuant to paragraph 7 of the Schedule of the Law of Limitation Act Cap 89 R.E 2002 its time limit is six years., and (3) the cause of action aroused on 10th November 2008. However their point of departure is the maimer of computation of a period of limitation of six years and the applicability of Section 21(1) of the Law of Limitation Act in the circumstances of the present case where it is said both parties The defendant is counting the period of limitation from the day the cause action arose without taking into account the provisions of Section

21(1) of the Law of Limitation Act which requires exclusion of the period which parties were pursuing other court proceedings. While the plaintiff s counsel is in computing the period of limitation of the suit is excluding a period the plaintiff consumed while prosecuting two previous proceedings as envisaged by Section 21(1) of the Law of Limitation Act. So that, is the reason behind the defence counsel is maintain six year period has expired even before the filing of Commercial Case No 201 of 2017 while Ms. Hamida Sheikh is maintaining that, the six years period was yet to expire and the suit was filed within statutory period. In other words the defence counsel who raised a preliminary objection that, the suit is time barred just counted six year period on only relying of statutory instructions provided in paragraph 7 of the Schedule of the Law of Limitation Act Cap 89 R.E 2002. Honestly, I have carefully considered the two competing argument in counting the six years period of the present suit and find it is important to state for the benefit of both parties that, the Law of Limitation Act apart from fixing the time limit of each cause of action, it also set out statutory instructions of how the time limit for each cause of action will be counted by excluding some of the days which the same parties are bona fide engaged in other proceedings. Page 5 of 8 In other words in

computing the time limit of the present suit the defence counsel after knowing that, they were engaged in other court proceedings involving the same subject matter he was supposed to take into account the legal requirements of excluding days which they were engaged in the said court proceedings as envisaged in Section 21 (1) of the Law of Limitation Act Cap 89 R.E 2002. In deed the marginal note of Section 21(1) of the Law of Limitation Act Cap 89 R.E 2002 states as follows "Exclusion of time of proceeding bona fide in court without jurisdiction" Further, Section 21(1) of the Law of Limitation Act provides as follows; In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court offirst instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action. Thus guided by Section 21(1) of the Law of Limitation Act Cap 89 which provides guidance to courts and even legal practitioner on who to count the period of limitation the court was expecting that, Mr Dominic who is the defence counsel would also address himself to the legal requirement of the cited Section while assessing if the plaintiff suit is time barred. The court is very much aware that, in considering and determining if the suit

is time barred it does not only rely on what is stated in paragraph 7 of the Schedule of the Law of Limitation Act Cap 89 R.E 2002 alone but on what is provided in entire Act of the Law of Limitation Cap 89. In view of the statutory conditions set out in Section 21(1) of the Law of Limitation Act in computation of period of Limitation, I quite agree with Ms Hamida Sheikh that, where there is a proof that, parties were engaged in another court proceedings, like Civil Case No 110 of 2011 and Misc Civil Application No 57 of 2017 it therefore follows that, the issue whether or not the present suit is time barred has to determined by excluding the time spent in previous two cited Page 6 of 8 proceedings so long as the court is satisfied that, the previous proceedings were bona fide pursued and in good faith. Taking into account the Plaintiff s Counsel has informed the court that, the plaintiff was prosecuting Civil Case No 110 of 2011 and Misc Civil Application No 57 of 2017 against defendants, and there is no convincing submissions from the defence side that, the previous proceedings were conducted in bad faith, then a time from 22nd July, 2011 to 8/11/2017 spent in pursuing the two proceedings has to be excluded in the computation of 6 year period of limitation. Bearing in mind the defence counsel maintained that, the plaintiff cause of action commenced from 10/11/2008 to

22/7/2017 when the two proceedings kicked off to 8/11/2017 when the ended midway that, shows that, the plaintiff consumed on or about 4 years in previous proceedings and by exclusion of the cited dates the six years period of limitation has not elapsed. So I find the 1st preliminary objection that, the suit is time barred was not proved and it fails. Turning to the second preliminary objection on points of law that, the plaintiff Commercial Case No 201 of 2017 is improper and amount to abuse of court process because previously there was High Court Civil case no 110 of 2011 involving the same parties and, same cause of action which was dismissed, the court finds the plaintiff in his objection and submission did not point a section of the law which may rendered the plaintiff suit to abuse of court process. The court was expecting that, the defendant’s preliminary objection on point of law will be based on Section of Law. More I find determination of this point also entails assessment of factual issues which need to be ascertained from previous ruling of the High Court in the two previous proceedings on what was at stake in previous proceedings. Since no Section of the law prohibiting the filing of the plaintiff suit was cited in the second preliminary objection, I find and decide a point that, the second defendant preliminary objection was not proved and has not merit and

it fails.. Likewise, on the third point of preliminary objection on point of law that, the plaintiff suit is not legally maintainable because was filed by an advocate who was barred by the court, honestly the court was not furnished with any court order banning Ms Hamida Sheikh from appearing in court or in this matter. So also in the third preliminary objection on point of law, I Page 7 of 8 find and decide a point that, the second defendant preliminary objection was not proved and has not merit and it fails. In the final analysis I find all three preliminary objection on point of law were not established and are hereby dismissed with costs in favour of the plaintiff. With the above court finding the matter may continue Signed, and Dated at Dar es Salaam on this 27th day of September 2018 H.T. SONGQ. (JUDGE) Page 8 of 8