20081003 TZHC Dar es Salaam 1

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO 143 OF 2007 THADEI MKWAWA MBENA ............ PLAINTIFF VERSUS 1. THE MINISTER FOR PUBLIC SAFETY AND SECURITY 2. ATTORNEY GENERAL . .... ·. . . DEFENDANTS Date of last order - 18/7/2007 Date of Ruling - 3/10/2008 RULING Sha_ngwa, J. On 28th December, 2007 learned State Attorney for the defendants presented for filing the Written Statement of Defence in which he raised a notice of preliminary objection against the hearing of the plaintiff's suit on ground that the suit is hopelessly out of time and that no cause of action lies against the defendants and that the suit is premature and 2 incompetent as it violates S. 6 (2) of the Government Proceedings Act [Cap. 5 R.E. 2002]. th On 19 March, 2008, I ordered that the preliminary objection raised by the learned State Attorney on behalf of the defendants should be disposed of by way of written submissions. The parties did comply to the said order. In his written submissions filed on 28/4/2008, the learned State Attorney for the defendants dropped two grounds of objection out of the three grounds which he raised in his notice of preliminary objection against the hearing of the suit and maintained only one ground to the effect that the suit is hopelessly out of time. The learned State Attorney submitted that the cause of action arose on 22/6/2002 when the plaintiff re-arrested his son Emmanuel Mkwawa who had jumped bail and handed him to the police station at Buguruni. Where he had been charged with the offence of breaking and stealing from a '• I, 3 godown with two other persons. He further submitted that the plaintiff filed his suit on 22/11/2007 which was after three years from 22/6/2002 when the cause of action arose. He contended that as the cause of action arose on 22/6/2002 and the plaintiff's suit is founded on tort, it had to be commenced within three years from the date on which the cause of action accrued. In support of his contention,· he referred the court to item 6 of the First Schedule to the Law of Limitation Act, 1971. In his reply submission, the plaintiff submitted that the argument made by the learned State Attorney for the defendants that the cause of action arose in 2002 when he re-arrested his son and handed him over to the Police at Buguruni is not correct. He said that the cause of action arose when the Magistrate at Temeke District Court ordered for his arrest by the police who tortured him and when he was remanded in Prison which resulted into loss of his i.. , ••. 4 properties. He said that the preliminary objection raised by the State Attorney for the defendants against his suit is unj ustifia ble. The issue to be considered by this court· is ·whether or not the suit is time barred. There is no doubt that the plaintiff's suit is founded on tort. As indicated at paragraph 4 of his plaint, the plaintiff is claiming for damages from the defendants to the tune of Tshs.200,000,000/= for his arrest which he alleges was unlawful and unjustifiable and for his imprisonment which he alleges was false on grounds that after re-arresting his son Emmanuel Mkwawa whom he had stood surety in court and handing him over to the police from whose custody he escaped and later died in a car accident on 5/3/2003, he was no longer responsible _to make sure that his son attends the court which had granted· him · · ~- bail. 5 In my opinion, I agree with the learned State Attorney for the defendants that the plaintiff's suit is hopelessly out of time. However I do not agree with the said Attorney that the cause of action arose on 22/6/2002 when the plaintiff re-arrested his son Emmanuel Mkwawa and handed him over to the police from whose custody he escaped and met a car accident on 5/3/2003. In my view, the plaintiff's cause of action arose on the date he was arrested following the Magistrate's order for his arrest on grounds that he failed to produce in court his son Emmanuel Mkwawa whom he had stood surety after being granted bail by the court. That is far back in 2003. The plaint shows that his suit was instituted on 28/11/2007 which means that from the time when he was arrested and remanded in prison to the time when he filed his suit which is founded on tort, it is over three years. 6 As correctly submitted by the learned State· Attorney such suit which is founded on tort had to be filed by the plaintiff within three years from the date when the cause . of action arose as it is pr:ovided for under item 6 First Schedule to the Law of Limitation Act, 1~71. ·I find therefore that the preliminary objection raised by the learned State Attorney on behalf of the defendants has merit. Now, as the plaintiff ' . failed to file his suit within the statutory period of time, this court has no alternative but to strike it out which I hereby.- ·, do. Let each party bear its own costs. • ~ A. Shangwa JUDGE 3/10/2008 0 i I, . 'I Delivered in open court this 3rd ·day of October, 2008 in the presence of the plaintiff and Mr. Mweyunge, State Attorney for the defendants. ~~­ A. Shangwa .- .I--ik. / C·l JUDGE • ~'. # -~~1•·~ -~~"l- 3/10/2008