19951212 TZHC Dar es Salaam

IN THE HIGH COUF.1' OF TAN;.:.ANIA (p~p.. ES $1\1'.1.J~ _prs•.~~I.CT RID~}]'.~) AT DAR ES Sf,LP~ CIVlL CASE N0.230 OF 1992 1. RCB:SISON MA.TOKE 2. TOBBY }:!AKOP.E t/a PARrI\1ERS C0NSTRUCl!I0N COMP:iNY ) VERSUS \ NA'l'ICN.t,L BliliK OJ? COJ-.'fMERCE ( SAMORA AVEl>nJE BRANCH 0 - ·- RUL!NG The plaintiffs have filed a suit against the Defendant~ for damages for bre1Jeh of contract 9 o.nd for an order that the bank account be re-opened. The amouP-t claimad is Shs.167., 799,961/:.:: the pri?lcl.paJ. sum 1 and interaG't. In tlHi Written Statement of Defence, the Defendant -denies lial;iility_, and has raised a preliminary objection. Firstly. the Defendant st~tes 0 thB.t ·'the suit is unmaintainable as it defi.es the p~visions of the Law of Limitation Act:,. The Defendant asks that the suit be struck out for tht~t reason. The & · written •'submis ion by coimsel for the Defendant elaborates by stating that -under it~m 7 of the Schedule to the Law of Li}nitation 1. . ct, the period of limitation is six years, and since t;he cause of action arose on 19/9/1985 and the suit was filed on 18/8/1992, it was time-barred. I-t ought to have been.filed on or before 18/9/1991/ Mr. Marando, counsel for the Plaintiff h.as resisted the preliminary opjection by stating th.::t the suit is based on a continuing wrong, and therefore sect:i,on 7 of the Law of Limitation· Act applies.. Learned -----~ counsel has refer::·-,d t0 ;;~i.:. :::.1;.c).:ian author, Rustomii ... on the Law of 2 'Limitatipn Act where he analy~es the former section 23 of the India!\ Limitation Act. The learned author states! ;, When the wrong consi:.ts of a positive duty, i.e. t:o do somethingt the test to find out whether there is \ . a continuing ~,rong is to see whether the duty is to ' ::.p continue to do thst thing. If $0; the . the ornissi~• . 7 to d.o that thi~g i$ a continuing wrong during the time the orrunission l:asts, D Where the wrorig consists of a bree..ch of a negative n.'.lture, i.e. to refr~in from doing something, the test to find out whether there is a continuing wrong, is to see wheth.el' i!.kiaii wr6i1~flll act rroduce$ a &t::\te 4 aftai.zwi every memetrt ~ s continuance of which i:if,.a,. new wrong (e.e. which is continuing source of injul:'y) and is of. such a nnture D.s to rencl.er the doer of it responsible for the continuance. If so, it is a continuing wroftg";• The aboye principles a'.i. e, in my view good law Dnd applicable in this 1 easel The plaintiff alleges in the plaint that he operoted a bank account in.the Defendant's bank, and the Defendant h&s stopped him fr~ drawing any money fro1~ the aeeount. The Defendant admits thHt there was a b&,lanee of shs.10,826.,50 in the accou.nt, but denies. th.st shs.4,733,925.00 was 0 deposited by the Pleint;iff as <9lleged in the plaint. Whether the Plaintiff had the amount he alleges in the bank, is a m:.-tter of evid::mce. But the fa.ct remains that he had deposited some amou..rit oi money in his bank account, Bnd there was e credit balcmce when the Defendant closed the account, .:md. refused the Plaintiff to operate the :::.ccount. These facts show, in my view, that there is posititve and negative duties on the part of the;; Defendant in that the Defencl.ant W,)S bound to allow the Plaintiff to opervte the account. 'l'hat is the positive duty. The duty i,s nc,gati ve in that the Defendant has refused to allow the Plaintiff to operate the accounte In my view th"' wong is a continuing one, nnd I d.o not agree with Hr. K<~lolo thet the suit is barred by limitation. 'I • ---0 3 For the r~ascns gi ven 1 the prelimine.ry objeetion is overruled, W. J. Ml,INA JUDGE 1_2/12./1,292. ,!S DI1.R ]!$. §1'.LJiJ:J:'t• l~l~Ph.&.~ ::)7/ ; ,0 .,, Plo.txitiff Bel;luisljn Matoke: ·", Present .- :-. I Mr<e Ngatunga and Mi.&& Silisi Ma.lli for ~ n~,a,.att-;i.~ 0 ----