FBME Bank Limited versus Lupembe Tea Estates Co Ltd; Commercial Case No. 41 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure.
- Res judicata – Matter previously struck out for want of lifespan – whether res judicata.
- Commercial Court Rules – Skeleton arguments – failure to file skeleton arguments within time – effect.
- Limitation of time
- Cause of action – when does the cause of action arise in loan agreements?
- Banking Law
- Limitation- when does the cause of action arise in respect of loan agreements?
Held:-
(i) Failure to file skeleton arguments within the time prescribed by the law or an order of the Court is tantamount to failure to file the same and, therefore, they are of no effect before the Court whatsoever. Hence, hearing will always proceed as scheduled and oral submissions will be within time prescribed by the rules.
(ii) When a borrower defaults to repay a loan, the right of action accrues upon cause of action arising. Both single default and the last default constitute a cause of action and right of action accordingly. As such, plaintiff’s failure to bring an action upon failure to pay a single instalment cannot bar him/her from instituting an action on the maturity date of the principal sum, thus, time to institute an action cannot be reckoned from the date of first default only but properly on the due date the loan was supposed to be discharged
(iii) Where a matter has been struck out for want of lifespan, it cannot be said that it was dealt with on merits. Therefore, the doctrine of res judicata cannot be used to bar the plaintiff to institute a fresh suit.