Mathew Martin v. Kahama Mining Corporation Civ no 79 of 2006 (limitation to sue)

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO. 79 OF 2006

MATHEW MARTIN………………………………….………PLAINTIFF

VERSUS

THE MANAGING DIRECTOR

KAHAMA MINING CORPORATION…………………..DEFENDANT

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RULING

KALEGEYA, J.

        The Defendant challenges the action filed by the Plaintiff on two preliminary objections – that the suit is time barred as it was filed beyond three years after the accrual of a cause of action and also that this court has no jurisdiction to deal with a workman’s compensation dispute as the relevant court is the Resident Magistrate’s Court.

        Facts undisputed are that the Plaintiff was employed by Defendant as an electrician; that in May, 2001, he was detailed to effect repairs on a miller and starter; that immediately after effecting the said repairs he suffered pain to both his legs and this was thought to have resulted from “chemicals and acid” at the repair scene.

        The Plaintiff contends further that the injuries seriously affected his legs leading to incapacity notwithstanding various medications and that on 13/10/2001 the Defendant terminated his services.  He insists that he is still undergoing treatment for his disabled legs which had to receive patchments from his thigh in order to create the required skin.  He urges that the Defendant’s conduct has caused severe pain, economic hardship and psychological problems for which he claims shs. 93 million as specific damages and shs. 80 million as general damages with interest and costs.

        Briefly, submitting in support of the said preliminary objections the Defendant states that counted from May, 2001 three years expired long before 30/5/2006 when the suit was instituted and made reference to (HC) Civil Case No. 70 of 1998, John Cornel vs A. Grevo (T) Ltd, and, further that under Section 3 of the Worker’s Compensation Act, Cap 263, R.E. 2002 the court vested with jurisdiction is a Resident Magistrate’s Court.

        On his part, the Defendant counters by saying that he is not time barred because between “2001 up to the year 2004” he was still under medication and so continued, attending “at Aghakan Hospital under his own expenses up to the year 2006”.  According to him time started to run starting in 2006.

        Unfortunate as it is, for it leans against the physically incapacitated Plaintiff, there is nothing this Court can do to assist him in relation to the obvious barrage of his action by limitation of time.  In Cornel’s case referred to by the Defendant, I observed:

“However unfortunate it may be for the Plaintiff, the Law of Limitation on actions knows no sympathy or equity.  It is a merciless sword that costs across and deep into all those who get caught in its web.”

        I still hold the same view and it applies squarely in the present case.

        By his own pleading, (the plaint) the Plaintiff concedes that the “cause of action arose when the Plaintiff was ordered to perform work in the area contained acids and other chemicals which severely affected” his legs causing permanent incapacity.  I agree, and so does the Defendant that indeed that is when the cause of action accrued.  And that was 2001.  This claim falls under Section 6 (e) of the Law of Limitation Act, No. 10 of 1971, which provides:

“in the case of suit for compensation for a wrong which does not give rise to a cause of action unless some specific injury actually results therefrom, the right of action shall accrue on the date when an injury results from such wrong”.

        Being sent to areas where acids and other chemicals were stored per se is not actionable as such unless an injury, as was the case here, is suffered.  The Plaintiff suffered immediately and this was vividly exposed in the same year, 2001.  That being the case, a three years period for tortuous actions as provided under item 6 of the First Schedule to the Law of Limitation Act ends, at most, even discounting the whole of 2001 to provide for the establishment of actual injury and its extent by doctors, in 2004.  Filing an action in 2006, as was done in this case, is glaringly beyond the prescribed period of limitation.  Sympathetic as we may be to the incapacitated Plaintiff, we cannot avoid upholding the first preliminary objection as we hereby do.  With this finding it is unnecessary to tackle the 2^nd preliminary objection.  The suit is dismissed for being time barred.

        DATED at DAR ES SALAAM this  day of  2009.

L. B. KALEGEYA

JUDGE 

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