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~ -;. ,, c--·-~t.:-i · J --?1_j '/ ~--u- . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, l.A., MUNUO, J.A.~ ~~d, NSEKELA, J.A.) CIVIL APPEAL NO. 60 OF 1999 BETWEEN M/S FIDAHUSSEIN & COMPANY LIMITED ................... APPELLANT AND TANZANIA . . . .- HARBOURS ,.. . AUTHORITY ...........................RESPONDENT . . (Appeal from the Ruling of the High Court of ' Tanzania at Dar es Salaam) (Mapigano, J.) dated the 23 rd day of April, 1999 in Civil Case No. 123 of 1998 JUDGMENT LUBUVA, J.A.: This is an appeal against the decision of the High Court (Mapigano, J.) of 23 rd April, 1999 sustaining .a preliminary objection raised on behalf of the respondent. The background giving rise to the case may briefly be stated. 0 In the suit, the appellant company claimed a total sum of Tanzania 0 Shillings 40,242,879/= plus interest being the· value of a container 2 which disappeared while in the custody of the respondent, the Tanzania Harbours Authority at the port. At the commencement _of the trial, a preliminary objection was raised on behalf of the respondent that the suit was time-barred in terms of t_he provisions bf the Tanzania Harbours Authority Act, 1977 . I (hereinafter referred to as the Act). For the respondent it was contended that the limitation period for instituting suits against the Tanzania Harbours Authority is prescribed under the provisions of sections 67 (b) and 46 of the Act. As the prescribed period of limitation is 12 months, it was argued that the suit was time barred because it was instituted on 11 th May, 1998, a period well over twelve months after the_ alleged breach took place on 26th June, 1994. At that time, it was submitted, the appellant, the original plaintiff, became aware of the ~reach. On the other hand, for the appellant, it was submitted that time began to run from 18/12/1997 when the appellant became aware of the alleged breach. In this light, if it is taken_ that time began to run from 18/12/1997, the suit filed on 11/5/1998, was timeous. 3 The learned trial judge was of the settled view that the limitation_ period applicable ~o the suit is twelve months by virtue· of the provisions of section 67 (b) of the Act. The judge also held that time started_ to run from the date of the breach. On this basis, the learned judge sustained the preliminary objection holding that the suit was time;;.;biarred, it was dismissed. Hence this appeal. The appellant was. represented by Professor I. Shivji, learned advocate and the respondent was advocated for by Dr. Angelo Mapunda, learned . counsel. Professor . Shivji filed the following grounds of appeal: 1. The learned Judge misdirected ·himself in law in holding that the cause suit was one of negligence. He ought to have held that the cause of action lay in statute, to wit, section 29 read together with section 65 of· the Tanzania Harbours Authority Act, 1977, No. 12 of 1977. 2. The learned Judge erred in law in holding .that . the limitation period starts to run from . 4 the date of the breach. He ought to. have held that the limitation period starts to run from the date of accrual of right of action or when the cause of action arises. 3. The learned Judge misdirected himself in law in raising and answering the question as to whether or. not Annexure "B" to the Plaint amounted to · an "admission" of negligence. He ought to have made a finding that Annexure "B" taken together with preceding correspondence was an admission of the facts and circumstances to the effect - . . (a) that there was a loss of goods, the subject-matter of the suit; and (b) that the loss happened while the goods were in the custody of the Respondent. 4. The learned Judge therefore ought to have held that the right of action accrued. on 18th December 1997 when the Appellant first became aware of all the material facts constituting the cause of action and 5 therefore the suit filed on ilth May 1998 was well within time; With great zeal and ·industry, Professor Shivji argued these grounds together to the following effect. First, it is not disputed that -the limitation period in this· case is statutorily provi~ed for under <{-<•11 section 67 (b) of the Act, which provides that:- 67 ·(b) - the action or legal proceeding - shall not lie or be instituted unless it is commenced within twelve months next after the · act, neglect or default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof ( emphasis supplied) In this case, it was submitted on behalf of the appellant, that the suit against the respondent was filed on 11.5.1998, well within twelve months as provided under sectio~ .67 (b) of the Act. The suit was timeous because the cause of action accrued from 18.12.1997, when the appellant became aware of the alleged breach. It_was erroneous . ' on the part of the trial judge to hold that the time started to run from 6 26.4.1994, when the appellant is alleged to have been notified of the breach. The determination of the time when the cause of action arose should be based on the application of the provisions of sections 29 and 65 of the Act read together .. According to the provisions of these sections, in order for the respondent Authority to be held liable for the loss of goods, three elements should be shown, namely: first, the existence of the loss, second, that the loss occurred while the goods were in the custody of the respondent and third, that the loss was caused by want of reasonable foresight and care on the part of the respondent .. Furthermore, under the provisions of section 65, it was not necessary for the appellant, the original plaintiff to prove how the loss was caused, it is for the respondent to do so. In this case, the appellant became aware of. the second element, namely that the loss of the goods occurred while in ·the custody of the appellant on 18.12.1997. This was only possible after investigation had been carried out. In these circumstances, the institution of the suit on 11.5.1998, was within the statutory period of limitation of twelve months from this date when the cause of action arose, Professor Shivji stressed. 7 Concluding his submission, he called the attention of the Court to the fact that this line of argument ·on the point of law had not been argued in the High Court. However, he pointed out further that the same facts were before the High Court. Therefore, it was his view that the matter could rightly be raised and argued in this Court on appeal. In support of this proposition, the Court was refer_red to its decision in the Minister for Labour and Youth and Another V Gasper Swai and 67 Others, Civil Reference No. 3 of 1999 and the House of Lords in Connectient Fire Insurance Company V Kaoanaqh (1892) A.C: 473, Banbury V Bank of Montreal (1918) AC 626 and Donaghe V Boulton and Paul Ltd. (1968) AC 1. The issue whether a legal point which had not been argued before the High Court can be allowed on appeal, can be disposed of without any further delay. As Professor Shivji correctly submitted, and Dr. Angelo Mapunda, learned counsel also conceded, it is trite principle that even though a point of law was not raised and argued before the trial court, it can be allowed on appeal. There is a wealth of decided ·cases on this . point both within and outside our 8 jurisdiction. For instance, in Minister for Labour and Youth and Another V. Gasper Swai (supra) this Court inter alia stated: In response to that Professor Shivji contended that Mr. Lyimo's submission was un- maintainable for two reasons. First, this point was not raised either in the High Court or before the single Judge of this Court. It is being raised for the first time on a reference to this Court, and this is wrong. With due respect to the learned counsel, however, we think that failure to raise the matter in the High Court or before the single Judge of this Court does not preclude us from considering it. The point raised by Mr. Lyimo is one of law which, taking judicial notice of the laws of this country, is clearly discernible. ... In those circumstances, had it not been for what we are going to say in the following paragraphs, we would feel justified to take on the issue notwithstanding that it is being raised on this reference for the first time. Outside jurisdiction, in the case of Donaghe V Boulton and Paul Ltd. (supra), the House of Lords had occasion to address this issue. 9 In that case the respondents appealed to the Court of Appeal and there sought to contend that regulation 31 (1) did not apply. This point had not been argued at the trial though this contention had not been expressly abandoned. The Court of Appeal allowed arguments on this point. Guided by the principle discerned from these decisions, we had no difficulty in allowing Professor Shivji to raise and argue the point in appeal before us. However, on the other hand, Dr. Angelo _Mapunda, learned counsel strongly maintained that even after allowing this uncontroverted legal point to be argued in appeal, still this was of no avail to the appellant. This is so, he said on account of the following reasons. First, under the provisions of section 43 (f) of the Law of Limitation Act, 1971, proceedings based on the Act, are expressly excluded from the application of the Law of Limitation Act, 1971. So, the applicable law is Section 67 (b) of the Act, Dr. Mapunda stressed .. That the period of limitation is prescribed under section 67 (b) of the Act need not detain us for long because, it is an aspect which 10 ..... , is·· not disputed ·even by Professor Shivji, learned cot:i'n'sel for the appellant. Secondly, he said it was crucial to determine when the time started to run. Making reference to Halsbury's Laws of England, (1973) 4th Edition itwas his submission that in general, time starts to run from the date when the party involved had knowledge of the act giving rise to the cause of action. In this case,,,,Dr., fv'lapunda went on, the cause of action arose on 26.6.1994 when the alleged breach by the respondent occurred. From the Annexure "A", "B" and "C" to the plaint, the appellant, was aware of all the ·facts necessary for the institution of the suit, Dr. Mapunda submitted. For instance, Dr. Mapunda said in Annexure "B" in the letter of 3/1/1997 addressed to the Director of Finance, the Tanzania Harbours Authority, Pardhan and Company, Advocates for the appellant. at the time were threatening to take legal action against the respondent for the container which was short landed at the port at the interest rate of 32% from 1.7.1994. If, as claimed.by Professor Shivji, the appellant was not aware of the facts constituting the claim, what is the basis · for specifying this date and not any othe·r, Dr. Mapunda questioned. In the circumstances, Dr. Mapunda submitted that as the appellant 11 was aware of all ·the facts necessary for the institution of. the suit since 26.6.1994 and not 1s:12.1997, the trial judge correctly held · that the institution: of the suit ~9n 11.5.1998, was time.:.barred under the provisions of section 67 (b) of the Act.· Countering Professor Shivji's complaint that the trial judge proceeded with the trial as if it was based on tort or negligence, Dr. Mapunda stated that the judge could not be faulted because what was pleaded in paragraph 5 of the plaint was negligence. Even then, Dr. Mapunda reiterated, it was immaterial whether or not the suit was founded on negligence so long as the period of limitation for any action against the respondent authority is twelve months. We shall first deal with Professor Shivji's complaint that the learned judge proceed with the suit as if it was founded on negligence. With respect, we find no merit. in this ground. It is common knowledge that the trial of suits is proceeded with on the basis of the pleadings. In this case, as correctly submitted by Dr. Mapunda, the pleadings explicitly show in paragraph 5 of the plaint that the suit was based on negligence. So, the trial judge cannot be 12 faulted for addressing the ple~dings as presented. At any rate, we agree with Dr. Mapunda that this aspect is of no consequence as regards the time of limitation under the Act which expressly provide for twelve months period of limitation. The next pertinent issue is the time when the cause of action accrued in this case.- As already indicated, in this case it is not disputed that in determining the period of limitation, the applicable law is section 67 (b) of the Act. It is to be observed that Professor . Shivji, for the appellant, forcefully maintained that time began to run from. 18/12/1997 when the appellant became aware of the facts giving rise to the cause of action. Prior to that, according to Professor Shivji, the appellant was not fully seized with the full facts of the matter, which were still under investigation. With great respect to Professor Shivji, we canno~ accept this submission. First, we think the learned counsel· is in error in his submission that in computing the time of limitation, resort should be had to the provisions of sections 29 and 65 of the Act read together. According . to him, this is so because it is important to show that three essential element were established in order to found an action on these . sections. These elements are, the existence of loss, the loss . occurring while the goods were in the custody of the respondent authority and thirdly, want of reasonable care and foresight on the part· of the plaintiff, the .appellant. In this case Professor Shivji, · claimed that the appellant became aware of that the loss occurred while goods were in the custody of the appellant on 18.12.1997, when the appellant received a letter dated 18.12.1997 from the respondent. We wish to point out at once that sections 29 and 65 of the Act, are irrelevant at this stage of the case. We are settled in our minds, that the provisions of these sections can only be resorted to if at all, at a later stage of the trial as a matter of evidence to show the circumstances in which the alleged loss occurred. So, it is our view that resort to the provisions of these sections at this stage as urged by Professor Shivji is, with respect, misconceived. In the event, and· as conceded earlier by counsel for both parties, the only applicable law for purposes of limitation in this case is section 67 (b) of the Act. In invoking the provisions of this section, we revert to the central issue, namely when did the appellant became aware that the goods got lost while in the custody of the "!' --\ -~~ ~ i J~ ;if' . ._ l"i~ .' 14 respondent. This in turn would determine when the time began to run. Halsbury's Laws of England 4th Edition, Reissue, paragraph 820 at page 418 discusses the accrual of cause of time and computation of time. In part, it is stated: In personal injury actions time begins to run from the date of the plaintiff's knowledge. In this case, what is the evidence in support of the respondent's claim that the appellant was aware of the facts necessary for instituting the suit. From the record, we are of the view that there is abundance of evidence showing that the appellant was aware of the facts earlier than 18.12.1997. First, Annexure "A" to the plaint, the letter of 29.12.1994 from the appellant to the respondent, clearly shows that the appellant had dispatched a letter of 26.9.1994 to the respondent regarding the claim, and another letter of reminder dated 27.10.1994. Secondly, on 3.1.1997, Pardhan and Company, advocates for the appellant wrote a letter to the Director of Finance, of the appellant authority threatening legal action if no payment was effected at the rate of 32% from 1.7.1994. If the appellant had, as claimed by Professor Shivji, no 15 w ♦'~ ;) knowledge that the goods were lost while in the custody of the respondent, we wonder why the date· 1.7.1994 was chosen and not any other. Thirdly, in yet another letter of 28.1.1997, in Annexure "B" M/5 Pardhan and Company, Advocates for the appellant stated. among other things "the above container disappeared around June, 1994". Fourthly, Annexure "C" is yet another relevant evidence of the appellant's knowledge of the fact that the container had been lost way back in 1994. In. the letter of 9/1/1995 addressed to the appellant, the respondent acknowledges receipt of the appellant's letter of claim dated 29.12.1994. From the totality of the evidence, we agree with Dr. Angelo Mapunda _that the appellant had sufficient knowledge and material long before 18.12.1997 for the institution of the suit within the time prescribed under section 67 (b) of the Act, from 26.4.1996. The institution of the suit on 11.5.1998, was as properly held by the learned trial judge was, in the circumstances, out of time. We can find no ground for fawlting the judge. For the foregoing reasons the appeal is dismissed with costs.