Q&A – 7 April 2014

An appeal to the Commercial Court

My two colleagues and I own an IT services company having its operations in Arusha, Dar, Mwanza and Mbeya. We have faced difficulties in getting our payments from several of our clients despite our numerous efforts to remind them. We sought for an opinion from our internal lawyer who advised us that on the basis of the amount we claim from these clients, we should file recovery suits in the Resident Magistrates Courts. It is very strange that we have lost some of these straight forward cases on merits despite them taking a lot of time in Court. We think even a law student would have decided in our favor due to the straightforwardness of the claims including the evidence we gave. We now want to appeal against these corrupt decisions. Can we now file our appeals in the High Court Commercial Division where we are informed cases are determined at a very fast speed? Will the amount still be an issue? Please advise us?
KG, Dar

Under the rules of procedure applicable in the High Court Commercial Division the value of claim threshold for original jurisdiction in commercial cases should be one hundred million for recovery of immovable property and at least seventy million where the subject matter is capable of being estimated at money value.

Likewise the High Court Commercial Division has appellate jurisdiction also on determination of appeals against the decision of the subordinate court on commercial cases. The appeal can be against the whole or any part of the decision and you are supposed to file a notice of appeal within 14 days from the day on which the decision was pronounced.
If you are not satisfied with the decision you have mentioned you may proceed to exhaust this remedy in the High Court Commercial Division where, as you have intimated, speedy disposal of cases is highly considered. However you need to be well guided by a practicing attorney in the High Court Commercial Division on the modality, timing and other technical matters involved the filing of your appeal.

Accident caused by negligence

Five years ago I was involved in a very serious accident when I passed under a building that was under construction. It took me five years of treatment to get myself back to what I was like before. Having multiple injuries, I nearly died but thankfully did survive. I am now back and want to sue the company that was constructing including anyone else that is capable of being sued. Apart from the money, I want to make sure that these people are taken to task. For example I still see building occupied in the ground floors when the top floors are being built. I still see persons on site with no helmets, and even if they have helmets they are the cheapest quality that even a squirrel can break into. Having contacted my lawyer, I was shocked to hear that I had 3 years in which to sue, and since the 3 years have lapsed I cannot take action against anyone. How can a law be so stringent? How can you help? Why does Tanzania have such a law?
NG, Dar

It is true that there is a law- the law of limitation act that provides for various time periods within which an action must be taken. Issues like yours would be covered under tort and the time limitation is 3 years.
Section 44 of this law allows the Minister to extend the time frame by another one and a half years for you and states “where the Minister is of the opinion that in view of the circumstances in any case, it is just and equitable so to do, he may, after consultation with the Attorney-General, by order under his hand, extend the period of limitation in respect of any suit by a period not exceeding one-half of the period of limitation prescribed by this Act for such suit.” However this does not help you as your claim is about five years old.

Luckily for you section 16 of this law may come to the rescue where it states that “where, after the right of action for a suit or an application for the execution of a decree has accrued and before the period of limitation prescribed for such suit or application expires, the person to whom such right has accrued suffers a disability, in computing the period of limitation prescribed for such suit or application, the time during which such person is under disability shall be excluded.”

Unfortunately disability is not defined and neither have you given us enough information on the type of injury you suffered, but we believe your lawyers can further explore this avenue which is likely available to you.

Furthermore, your lawyers should also consider section 20 of the Law of Limitation Act which states “In computing the period of limitation prescribed for any suit or an application for execution of a decree, the time during which the defendant has been absent from the United Republic shall be excluded.”

With section 16 and 20 at your disposal we believe you should be able to proceed.

Such statute of limitations are not uncommon in other countries. According to Halsbury Laws of England the purpose and effect of Statutes of Limitation is to protect defendants there being three reasons that support the existence of Statutes of Limitation, namely: (a) that a plaintiff with good causes of actions should pursue them with reasonable diligence; (b) that a defendant might have lost evidence to disprove a stale claim; and (c) that long dormant claims have more cruelty than justice in them.