TiMOTHy DANIEl KILUMILE CO VS HILLARY PATRICE OTAIGA COMM CASE NO

Page 1 o f 9 IN THE HIGH COURT OF TANZANIA (COMERCIAL D IV IS IO N ) AT MWANZA COMMERCIAL CASE NO. 22 o f 2014 BETWEEN TIMOTHY DANIEL KILUM ILE C O ------------------------------------------------- P L A IN T IF F VERSUS HILLARY PATRICE OTAIGA T/A NYANKANGA F IL L IN G SE R VICE STATION--------------------------------------------------------- DEFENDANT RULING Date o f the Last Order 12/2/2015 Date o f the Ruling; 13/2/2015 SONGQRO, J On the 25/9/2014, Timothy Daniel Kilumile Co. Ltd, the Plaintiff sued Hillary Patrice Otaigo trading under the name of Nyankanga Filling Station. In suit, the Plaintiff claims he supplied the Defendant with 39,000 litres of petrol and is now claiming shs. 86, 160, 360.00 for the supply of fuel, an interest of 31 % per month from 16/7/2013 to the date of judgment, general damages to be assessed at the Court Rate from the date of Judgment to the date of satisfaction of the decree, and costs of the suit. In response to the Plaintiff claim, the Defendant on the 3/11/2014 filed a Written Statement of Defence, and opposed all Plaintiff claims. He also prayed for dismissal of the suit forthwith. Upon being served with the Defendant Written Statement of Defence, the Plaintiff filed a reply to the Written Statement of Defence insisting on his claim. In addition, he filed a notice of preliminary objection on point of law stating that; Page 2 of 9 The purported Written Statement o f Defence o f the defendant should be struck out o f the court record fo r being f i l e out o f time, ille g a lly . In the light of the preliminary objection on point of law, the plaintiff prayed to the court, to enter a default judgment against the Defendant. On the 12/2/2015, when the suit was before the court, Plaintiff and Defendant opted to pursue the plaintiff’ s preliminary objection on point of law. During the hearing the Plaintiff was represented by Mr. Weiwei, the Learned Advocate, whereas the Defendant appeared, and responded to the objection. In pursing the Plaintiff objection on point of law, the Learned Advocate for the Plaintiff informed the court that Defendant was served with a copy of the plaint, and court summon on the 26/9/2014. Further, the Plaintiff’ s Counsel briefed the court that, the Defendant was supposed to file his Written Statement of Defence on the 17/10/2014, but he failed to do so. Then on the 16/10/2014 the court acting on the Defendant oral application and relying under Rule 20(2) of the High Court Page 3 o f 9 (Commercial Division) Procedure Rules, 2012 granted an extension of time of 10 days to file a Written a Statement of Defence. The granted 10 days period for filing a Statement of Defence expired on 27/10/2014 and the Defendant did not file his defence. The Plaintiff’ s Counsel then pointed out that, the Defendant filed a Written Statement of Defence on the 3/11/2014 after the time granted to him by the Court to file a defence had expired. He then submitted and insisted that, the Defendant has no defence, and the purported defence which is in court was wrongly filed. In his preliminary objection on the point of law, the plaintiff prayed that, the court struck out the Defendant’ s defence and enters a default judgment. In response to the applicant objection, Hillary Patrice Otaigo the respondent for Nyankanga Filling Station admitted that, he filed his Written Statement of Defence after the expiry of 10 days which was granted by the Court. He then explained that, his delay to file a defence was attributed with sickness, and his failure to secure the Advocate to assist him in pursuing the suit. It was his Page 4 o f 9 prayer that, his defence be maintained and be given time to find the service of the Advocate. In his rejoinder, Mr. Weiwei for the Plaintiff responded by discounting the Defendant s submissions by stating that, were not addressing the issues raised in the preliminary objection. On the defendant's request for time, and opportunity to hire an advocate, the Learned Advocate submitted that, the Defendant is just using delaying tactics to derail the case because was aware of the pending suit since 26/9/2014 and he made the same prayer on the 21/11/2014. Finally, Mr Weiwei rested his submission by requesting the court to disregard the Defendant’ s arguments and struck out the Defendant's defence, and entering default judgment. The court had time, and opportunity to peruse the Plaintiff preliminary objection on point of law, and his submission and find for the interest of justice, it is important to make a clarification on what is a preliminary objection on point of law, its purposes, and legal consequences once is pleaded successfully. Page 5 o f 9 In the case of Mukisa Biscuit Manufacturing Company Ltd. v. West End Distributors Ltd. (1969) EA 696, Sir Charles Newbold P. had this to say on preliminary objection at page 701:- “A preliminary objection is in the nature o f what used to be a demurrer. I t raises a pure point o f law which is argued on the assumption that, a ll the facts pleaded by the other side are correct. I t cannot be raised i f any fact has to be ascertained or what is the exercise o f judicial discretion. ” In the same case, Law JA, at page 700 had this to say:- “So far as I am aware, a preliminary objection consists o f a point o f law which has been pleaded or which arises by clear implication out o f the pleadings, and which, i f argued as a preliminary objection, may dispose o f the sui t. Examples are an objection to the jurisdiction o f the court, or a plea o f (time) limitation, or a submission that, the parties are bound by the contract giving to the su it to refer the dispute to arbitration. ” Likewise the Court of Appeal of Tanzania in the case of Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Page 6 of 9 Kanji - Civil Application No. 42 of 1999 (unreported), expressed its view on the point in similar terms when it said:~ “The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that, will dispose of the matter summarily. ” In the light of the above mentioned observations and clarification by courts, I would like to ask myself, if the preliminary objection on point of law raised, and argued by the Plaintiff, and his Counsel is a preliminary objection on the point of law, and they want if the upheld, the suit be summarily dismissed With due respect to the Plaintiff, and his learned counsel I find it is unusual, for the Plaintiff, or his counsel who has filed a suit, to turn around, and raise a preliminary objection on the point of law against his own suit. I say, it is strange, because once a Preliminary Objection on the point of law, is pleaded successfully, it may end for dismissal of the suit, and wipe out Plaintiff claims, and reliefs. Page 7 of 9 This means, in a simple language that, the Plaintiff and his advocate will leave this court with empty hands, because successfully plea of preliminary objection on point of law, lead to dismiss the suit, forthwith. The court will have no chance to make even an order of default judgment which the Plaintiff is insisting. In the light of what I have stated above, it is therefore my expectation that, if there is no counter claim in the suit, and an objection to the counter claim, it is the Defendant, and Defendant alone who may raise a preliminary objection on point of law, and press for the dismissal of the suit, and not the Plaintiff like in the present suit. The above cited observation is reinforced by decision in the case Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Kanji-Civil Application No. 42 of 1999 unreported which stated that, its determination will dispose of the matter summarily. Reverting back to the Plaintiff’ s preliminary objection on point of law, this Court also find it requires ascertaining some of the facts, like, if the Defendant was served with court summons, and the plaint, if the Defendant was given an extension of time, and other facts. Page 8 o f 9 In this regard, I find the point of preliminary objection raised by the Plaintiff in essence it requires ascertainment of facts, and for that reason, may not be resolved by just looking pure matters of law. Taking into account that, the Plaintiff objection even if pleaded successfully may not lead to summarily wipe out the suit, and the fact that, it’ s determination requires close examination of matter of mixed facts and law, I find the so called preliminary objection on point of law, is a normal objection which may be determined in the cause of hearing of the suit, and not at this early stage. Since the preliminary objection has been determined as stated above, Plaintiff is now at the liberty to move the court, to consider if the Defendant Written Statement of Defence was properly filed in court. For reasons, which I have explained above, the appropriateness of Written Statement of Defence in this court may not be pursued, and decided in the objection which was raised by the Plaintiff. Page 9 of 9 In the light of what I have stated above, I hereby dismiss the Plaintiff’ s preliminary objection on point of law, and make no order as to costs. Dated at Mwanza this 13 th day of February, 2015 JUDGE Delivered at Mwanza this 13th day of February, 2015 The' ' was’ delivered in the presence of Mr. Timothy Daniel Kilumile, the Plaintiff in person, and Mr. Hillary Patrice Otaiga, the Defendant in person.