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
--------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
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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.
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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
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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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