registered trustees diocese of mahenge vs cmc land rover t ltd 2011 tzhccomd 2106 19 december 2011

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO.50 OF 2011 REGISTERED TRUSTEES DIOCESE OF MAHENGE........ PLAINTIFF VERSUS CMC LAND ROVER (T) LTD.........................................DEFENDANT Date of last order: 20/10/2011 Date of final submissions: 28/11/2011 Date of Ruling: 19/12/2011 RULING MAKARAMBA, J .: This is a ruling on two preliminary objections the Defendant raised in the written statement of defence that the suit against the Defendant is not maintainable in law on the following grounds: 1. That, by virtue o f the Plaintiff's Counsel Demand Notice dated 17 h March 2005 and &h June 2005, the Plaintiff's suit is hopelessly time barred. 2. That, Plaintiff's plaint contravenes the mandatory provisions o f Order VI Rule 15 o f the Civil Procedure Code Act, (Cap. 33 R.E 2002). The two points of preliminary objection by consensus were disposed of by way of written submissions by Mr. Binamungu, learned Counsel for the Plaintiff, and Mr. Nyangusu, learned Counsel, for the Defendant. Page 1 of 12 Briefly, on the 13th day of June, 2011 the Plaintiff filed a suit in this Court claiming against the Defendant for an order to release its (Plaintiff's) vehicle with Registration No. 7229, Land Rover Discovery make, which the Plaintiff claims is unlawfully being withheld by the Defendant, and for general damages arising out of breach of contract. In 2001, the Plaintiff purchased the said motor vehicle make, with financial support from Bergen, Germany. The said motor vehicle was supported by a warranty under which repair and all breakdowns were the responsibility of the Defendant to take care of them without recourse to the Plaintiff. While the said motor vehicle was still on warranty enforceable against the Defendant, in October 2002, the said motor vehicle developed cracks in its chassis frame making the entire value of the motor vehicle useless. The problem was immediately reported to the Defendant but for no sound reasons, the problem was not addressed as expected. It took the Defendant over two years to address the problem and when everything was done, instead of releasing the motor vehicle freely to the Plaintiff, the Defendant claimed for over TZS 4,600,000/= being costs for repair while knowing the Plaintiff was not obliged to pay any costs. In June 2005, the Defendant made the recovery of the said motor vehicle much harder when it imposed a penalty of TZS 5000/= as storage charges per day from September 2004, until such time when the said motor vehicle will be collected. Since 2005 the Defendant has been going on to try and retrieve the vehicle without encumbrances but in vain. In June 2008, the Plaintiff through CSB Law Chambers served their last demand notice to the Defendant but still it has refused to heed to the same. After all Page 2 of 12 efforts to retrieve the vehicle had failed, the Plaintiff resolved to take up the matter in this Court. The Defendant's Counsel argues that the Plaintiff's claim is founded on contract, which according to Column 2 of Part I to the Schedule made under section 3 of the Law of Limitation Act, Cap.89 R.E 2002 which provides for lapse of right of action after a period of six years from the date the cause of action arose. Section 3(1) of the Act which prohibits institution of a suit in court after expiry of the prescribed limitation period provides that: "Subject to the provisions o f this Act, every proceeding described in the first column o f the Schedule to this Act and which is instituted after the period o f limitation prescribed thereof opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence." The Defendant's Counsel also cited section 4 of the Law of Limitation Act which provides as follows: "The period o f limitation prescribed by this Act in relation to any proceeding shall, subject to the provisions o f this Act hereinafter contained, commence from the date on which the right o f action for such proceeding accrues." The Defendant's Counsel submitted further that on the 27th day of September 2004, the Defendant wrote a letter to the Plaintiff which is annexed to the Written Statement of Defence as CMC-1, informing the Plaintiff that the vehicle repair work was complete and that the same was ready for collection. The said letter was accompanied with the Page 3 of 12 Defendant's invoice in respect of the costs of the new chassis and maintenance charges. The Defendant's Counsel submitted further that if the Plaintiff had a right of free maintenance under the alleged manufacturer's warranty, then the moment the Plaintiff received those documents, the Plaintiff's cause of action accrued way back in 2004. That being the case, the Defendant's Counsel further submitted, by the time the Plaintiff's suit was being lodged on the 13th day of June 2011, the suit was already hopelessly time barred. Even if it assumed that the Plaintiff's cause of action accrued when the Plaintiff started to demand for the release of the said vehicle from the Defendant, the Defendant's Counsel further submitted, yet that also cannot be of assistance to the Plaintiff since the first Plaintiff's demand letter is the one dated 17th March, 2005, which is annexed in the Written Statement of defence as annexure CMC-2. The Plaintiff was therefore supposed to lodge his suit not later than the 18th day of March 2011. Instead the Plaintiff lodged his case on the 13th day of June 2011, almost three months after the cause of action against the Defendant had expired, and hence the same is to be dismissed with costs, the Defendant's Counsel surmised and prayed. In reply the Plaintiff's Counsel submitted that paragraph 7 and 8 of the Plaint tells it all as they disclose as to when the '//t/s contestat/o'that is, the contested dispute arose, which is is June 2008, when the last demand notice was served upon the Defendant without bearing the intended results. The Plaintiff's replies to the Written Statement of Defence show that there were continued negotiations and the point when the two parties ended was as per the Defendants letter dated 17th January 2008, the Plaintiff's Counsel further submitted. Going by the Page 4 of 12 Written Statement of Defence at paragraph 7 that on the 14th day of June 2005 the Defendant was forced to send a reminder to the Plaintiff requesting them to collect their motor vehicle within seven days from the date of the said reminder, the time started to run on the 21st of June 2005 from which six years ends on the 20th day of June 2011 and hence this suit which was filed on the 13th day of June 2011 was well within the time of six years reckoning from the 21st day of June 2005, the Plaintiff's Counsel further submitted. In buttressing his submissions, the Plaintiff's Counsel drew the attention of this Court, the rule as to preliminary objection in Mukisa Biscuit Co. v. West End Distributors (1969) E.A 696 that: "A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f judicial discretion." In this point of preliminary objection, too many facts have to be reconciled in order to ascertain the cut-off point and therefore making it fail the test of pure point of law, the Plaintiff's Counsel pointed out. I have carefully considered the submissions and rival by Counsel. It is without much dispute that the dispute between parties in this case arises from a contract for the repair of the motor vehicle of Land Rover Discover make with registration No.MG 7229, which belongs to the Plaintiff. The Plaintiff strongly contends that the warranty for the said motor vehicle was still operative and hence it ought to be released free of charge. The Defendant refused to release the said motor vehicle until the Plaintiff has paid all the costs for the reason that the purported warranty for the motor vehicle is no longer in force. This being the case Page 5 of 12 therefore it is my considered opinion that, the dispute between the parties ensued on the date the Defendant refused to release the said motor vehicle free of charge as requested by the Plaintiff. This Court has been referred by the Defendant's Counsel to annexure CMC-1 collectively to the written statement of defence, a letter dated the 29th day of September 2004 from the Defendant informing the Plaintiff that the work for repairing the vehicle was complete. The said letter has an annexure, which is an invoice showing that the said repair work was finalized on the 10th day of September 2004. This Court was also referred by the Defendant's Counsel to annexure CMC-2 to the Written Statement of Defence which is the Plaintiff's demand notice letter dated the 17th day of March 2005, demanding for compensation for the use of vehicle for two years and three months. In terms of annexure CMC-2 to the defence, the demand notice, the Plaintiff's claim against the Defendant is for compensation for the use of the said motor vehicle. The Plaintiff's claim against the Defendant in this suit as per the Plaint is for an order for the release of the said motor vehicle. The claim of the Plaintiff against the Defendant in the suit lodged in this Court on the 13th day of June 2011 is not for compensation for the use of said motor vehicle. In my considered view, the two claims, one for release of the said motor vehicle and another for compensation for the use of the said motor vehicle are quite distinct and therefore comprise two distinct causes of action. Annexure CMC-2 to the defence, the demand notice, is therefore of no much assistance to this Court in determining when the cause of action as between the parties arose. Page 6 of 12 The Plaintiff's Counsel also referred this Court to the letter dated 17th January 2008 which was written by the Defendant to the Plaintiff as annexed in the Written Statement of Defence to the counterclaim showing negotiations which went on between the Plaintiff and the Defendant on how to release the motor vehicle. The Plaintiff further referred this Court to the Plaintiff's last demand notice letter dated 7th January 2008 as annexed in the plaint. On the submissions by learned Counsel, neither of the documents nor in the submissions of Counsel, the exact date the Defendant refused to release the motor vehicle free of any encumbrances as requested by the Plaintiff has been disclosed. This has therefore made it difficult for this Court to determine exactly the date on which the cause of action arose for purposes of establishing the limitation period. I am at one with the Plaintiff's Counsel in his submissions that this particular point of preliminary objection does not meet the test of preliminary objection as propounded in MUKISA BISCUIT CO. V. WEST END DISTRIBUTORS (1969) E.A 696 since in determining it, this Court has to ascertain the facts of this case. This Court has been referred by the Defendant's Counsel to the demand notices, annexures CMC-1 and CMC-2 respectively, which form part of the facts contained in the written statement of defence. The Plaintiff's Counsel also referred this Court to the demand notice and the letter dated 17th day of January 2008, annexed in the reply to the Written Statement of defence, and in the written statement of defence to the counterclaim. Clearly this Court is being invited to render its decision on the first point of preliminary objection that the suit is time barred by traversing Page 7 o f 12 the facts contained in the said documents. This essentially renders the first preliminary objection to be without merits and accordingly it is hereby dismissed. The second point of preliminary objection is that the verification contained in the Plaintiff's plaint does not comply with the mandatory provision of Order VI Rule 15 of the Civil Procedure Code, Act Cap.33. R.E. 2002. The Defendant's Counsel argued that the Plaintiff being a body corporate registered under Trustees Incorporation Act, Cap.318 R.E 2002, the Plaintiff's pleading ought to have been verified by one of its board member with his name clearly stated. The signature in the verification clause contained in the Plaintiff's plaint purported to belong to the Plaintiff is no signature at all, the Defendant's Counsel further argued thus amounting to equally saying that the Plaintiff's plaint has not been verified. This is contrary to the mandatory provision of Order VI Rule 15 of the Civil Procedure Code Act, Cap.33 R.E 2002, the Defendant's Counsel reiterated. The said provision provides as follows: "Save as otherwise provided by any law for the time being in force, every pleading shall be verified o f the foot by a party or by one o f the parties pleading or by some other person proved to the satisfaction o f the Court to be acquainted with the facts o f the case." The Defendant's Counsel submitted further that the verification clause at the foot of the Plaintiff's plaint has violated the mandatory provision of Order VI Rule 15 of the Civil Procedure Code, Act Cap.33 R.E 2002 cited above, which renders the Plaint defective, and thus deserves nothing other than to be struck out. Page 8 of 12 In reply, the Plaintiff's Counsel submitted the Defendant's second point of preliminary objection does not specify the provision infringed since Rule 15 of Order VI of the CPC consists of three sub-rules, thus leaving it open for the Court to guess the intended provision, which is wrong and untenable. The Plaintiff's Counsel submitted further that this would not be a point for which to dismiss or strike out the plaint but only attracts an amendment as was determined in the case of KIGANGA AND ASSOCIATES GOLD MINING COMPANY LIMITED V. UNIVERSAL GOLD MINING NL (2002) T.L.R 129 at 138, where Justice Kalegeya (as he then was) stated as follows: "The importance o f the verification clause is to fix responsibility and abuse o f Court process. An error in the verification clause leads to ordering for amendment o f the pleadings (if necessary) and not otherwise. Order XXVIII Rule 3 o f the Civil Procedure Code Act, Cap. 33 offer a cushion for any clarity or issue that may accrue in course o f proceedings by summoning the relevant officer concerned." In his submissions, the learned Counsel for the Plaintiff has conceded to the submission by the Defendant's Counsel that the Plaintiff did not properly verify his plaint. This is so because the person who signed the Plaint on behalf of the Plaintiff's Company and who is acquainted with the facts of the case should have clearly stated his name. In my view although the wording of Rule 15 of Order VI of the CPC does not expressly require the Plaintiff to identify his or her name, it is desirable to do so. This legal position has been succinctly restated by this Court in the COMMERCIAL CASE NO. 58 OF 2007 between Page 9 of 12 USANGU LOGISTICS (T) LTD and TANZANIA NATIONAL ROAD AGENCY & 2 OTHERS, where it was stated that: "There is no rule that requires the full identification o f a person who verifies a pleading, but I think it is desirable to do so, if the object o f verification is to be achieved." It is also a mandatory requirement of Order VI Rule 15(2) of the Civil Procedure Code that the Plaintiff verifies the plaint by making reference to each and every numbered paragraph. This means that the Plaintiff was required to specifically make reference to each paragraph that the Plaintiff believes to be true. However, this error, as the Plaintiff's Counsel rightly submitted is curable by mere amendment in line with what was determined in the case of KIGANGA AND ASSOCIATES GOLD MINING COMPANY LIMITED V. UNIVERSAL GOLD MINING NL (2002) T.L.R 129 at 138. I am also alive to the decision by Hon. Justice Dr. Bwana, (as he then was) in COMMERCIAL CASE No. 58 OF 2002 between MANZUR JESSA and TANZANIA REVENUE AUTHORITY that: "Where the court is o f the opinion that the procedural error committed does not constitute or lead to a serious miscarriage o f justice, then a party should be allowed to make the amendments required subject to such terms and conditions as a court may impose." In another decision of this Court on similar point, Hon. Massati, J. ( as he then was) in COMMERCIAL CASE NO. 10 OF 2006 between MBEYA CEMENT COMPANY LIMITED and KIMAMBI BUILDING Page 10 of 12 CONSTRUCTION CO. LTD quoting Samatta CJ had occasion to state as follows: "....even if I had found the verification clause to be defective as alleged, thatfinding would not by itself have constituted a warrant for dismissing the petition. As I apprehend the law, want of, or defect in verification does not make a pleading void; it is a mere irregularity which is curable b y amendment. "(the emphasis is o f this Court). On the strength of the authorities cited above, much as the verification in the Plaint does not meet the mandatory requirements in Rule 15 Order VI of the CPC, this error does not make the Plaint void. The defect is curable by mere amendment since it does not go to the root of the matter, nor does it not constitute or lead to a serious miscarriage of justice. In fine the two points of preliminary objection raised by the Defendant's Counsel are to the extent indicated above, dismissed with costs, which costs shall be in the cause. Further, the Plaintiff is hereby ordered to file an amended plaint with proper verification. It is accordingly ordered. JUDGE 19/12/2011 Page 11 of 12 Ruling delivered this 19th day of December, 2011 in the presence of Mr. January John Advocate holding brief of Mr. Byamungu , Counsel for the Plaintiff and Mr. Kessy, Advocate holding brief of Mr. Nyangusu, Counsel for defendant. JUDGE 19/12/2011 2,945 - words Page 12 of 12