20100218 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 3 OF 2008 VITALIS JOSEPH MUTAGWABA •........ PLAINTIFF

VERSUS SECURICOR TANZANIA LIMITED •••...... DEFENDANT Date of last Order 3/12/2009 Date of Ruling 18/2/2010

RULING . \' Shangwa, J . On 4 th March, 2008, the defendant Securicor Tanzania · Limited filed a written statement of defence in which he raised the following points of Preliminary Objection against the plaintiff's suit: "' 2 1. That the suit by the plaintiff is time barred.

2. That the plaint is bad for containing incurably defective verification.

3. That the plaint is incurably defective for not pleading value of the subject matter for the purposes of jurisdiction of the court. The reason which was given by counsel for the defendant in support of the first point of Preliminary Objection is that the plaintiff's suit based on the tort of assault is time barred because the time limit which 1s provided for under S. 3 (1) of the Law of Limitation Act read together with item 6 of the schedule to the Law of Limitation Act [ Cap 89 R.E.] for institution of such suits is three years from the date when the cause of action arose. 3 The question which has to be examined here is whether or not the plaintiff's suit is in actual fact founded on a tort of assault. There is no dispute that the plaintiff who was employed by the defendant as security guard at Williamson Diamond Mine at Mwadui in Shinyanga Region was attacked twice by bandits on two different occasions while he was in the course of his· employment, and that during the attacks he sustained serious and terrible bodily injuries which led into the amputation of his right leg. The first attack against him was on 17/11/1999 at Williamson Diamond Mine area at Mwadui. The second attack was on 14/6/2003 while he was driving the defendant's motor vehicle carrying a consignment of diamonds from the mine. As it can be seen, the plaintiff is not suing the defendant for assaulting him.

He is suing the defendant for compensation and damages for his medical care as a result 4 of the injuries he sustained at the hands of his attackers during the course of his employment. The plaintiff's suit is therefore not founded on the tort of assault as alleged by the defendant but it is founded on contract and on the application of the common law principle of Employments liability under which the employer 1s liable for compensation of the bodily injuries suffered by the employee in the course of his employment. Under item 7 of the Schedule to the Law of Limitation Act, the period of limitation for suits founded on contract is 6 years. Now, as the plaintiff suffered added bodily injuries for the last time in the course of his employment in 2003 and filed the suit in 2007, it cannot be held that his suit is time barred. Therefore, the first point of Preliminary Objection fails and I so hold. .' 5 The reason which was given by counsel for the defendant in support of the 2 nd point of preliminary objection is that the verification clause is signed by the plain tiff alone instead of being signed by the plain tiff and his Advocate as provided for under O. VI r. 14 of the Civil Procedure Code [ Cap 33 R.E. 2002.] I have looked at the plaint and found that both the plaintiff and the Advocate for the plaintiff Mr. F. H. Kugesha who drew and filed the plaint on behalf of the

plaintiff did sign the plaint. Thus, the second point of preliminary objection also fails. Lastly, the reason which was given by counsel for the defendant in support of the third point of preliminary objection is that the plaint does not contain the particulars showing that this court has jurisdiction to entertain the suit which is contrary to the mandatory provisions of 0. VII r. 1 of the Civil Procedure Code Cap. 33 R.E.

2002. I have 6 also looked at the plaint and found that the cause of action arose at Mwadui in Shinyanga, Tanzania and that apart from the claim of specific amount of money for general damages, special damages and punitive damages, the plain tiff is also claiming for an order against the defendant to unconditionally support and care for him by providing him with all his needs throughout his life. In my opinion, the above mentioned particulars of the claims which are shown by the plaintiff in the plaint are sufficient to show that the plaintiff did plead the value of the subject matter for the purposes of jurisdiction of the court. I hold therefore that the third point of Preliminary Objection raised by counsel for the defendant also fails. 1 ;.: 7 In general, ~ find that the preliminary points of objection raised by the defendant against the plaintiff's suit have no merit. I overrule them and order that costs will be in the main cause. -~ A.Shangwa ·JUDGE 10/5/2010 Delivered in open court this 10th day of May, 2010 in the presence of the plaintiff and Mr. Muganyizi holding brief of Mr. Malima for the defendant. ~ A.Shangwa

JUDGE 10/5/2010 8 MR. MUGANYIZI: My Lord, we pray for a date of mention with a view of fixing a date of holding the First . pre-trial conference. ORDER: Mention on 30/6/2010. A.Shangwa

JUDGE 18/2/2010