DEFAULT JUDGMENT AWA GROUP AND ARAL LIMITEDCOMMERCIAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 5457 OF 2024 AWA GROUP OF COMPANY LIMITED………………...………............PLAINTIFF

VERSUS ARAL INTERNATIONAL COMPANY LIMITED………………………1ST DEFENDANT AMIR ABDELMAJEED…………………………..……………….……..2ND DEFENDANT

DEFAULT JUDGMENT Date of Last Order: 25/06/2024 Date of Ruling: 11/10/2024 GONZI, J. The Plaintiff sued the Defendants claiming against them jointly and severally for Judgment and Decree for Orders that: (i) The Defendants pay the Plaintiff a sum of TZS 514,430,875/= (equivalent to USD 203,735 at 1 the rate of 2525) being the principal amount withdrawn, authorized and received thereon; (ii) The Defendants pay compounded interest of TZS 7,716,463.12/= on the principal amount at the rate of 1.5% per month from date of delivery to the date of filing of the suit; (iii) The Defendant pay the Plaintiff interest at the court’s rate of 11% per annum from the date of Judgment till the decree is fully satisfied. (iv) The Defendants pay costs of and incidental to the suit; (v) Any other relief(s) that the Honorable Court may deem fit. On 28th March 2024, the Court directed the Plaintiff to effect service of the suit upon the Defendants who were granted time to file Written Statement of Defence after 21 days from the date of service. On 29th April 2024, the Defendants filed in court a Joint Written Statement of Defence. 2 The Defendants refuted the Plaintiff’s claims against them. On 3rd June 2024, the case was called for First Pretrial Conference. Mr. Kessy Ngau, Learned Advocate appeared for the Plaintiff. The Defendants did not appear. Mr. Ngau, Learned Advocate, prayed that as the

Joint Written Statement of Defence by the Defendants had been filed outside 21 days as the 21 days had elapsed on 25th April 2024, the case should proceed exparte against the Defendants. The Court considered the implications of the Defendants being absent while the case was coming for First Pretrial Conference on that day. The court proceeded to make an order striking out the Joint Written Statement of Defence filed by the Defendants and granted the Plaintiff leave to make an application for default Judgment by Form No.1 and an affidavit under Rule 22(1) of the Commercial Court Rules, as there was no Written Statement of Defence by the Defendants. On 4th June 2024, the Plaintiff filed an application for Default Judgment. It was supported by an affidavit of Patrick Salum, Principal Officer of the Plaintiff Company. The affidavit of proof of the claims, after the preliminary paragraphs detailing the parties, their addresses and the initial orders of the court, stated as follows and I reproduce it verbatim: 3 “5. That the Defendants were served with the Plaint on 4th April 2024 as initial ordered by the court. The service was received and signed by the 2nd Defendant in person and on behalf of the 1st Defendant as the 2nd Defendant was also the Director of the 1st Defendant. A copy of Plaint served and signed by the 2nd Defendant is attached and herein marked as annexture “AWA- 2” to form part of this affidavit.

6. That the Defendants did not file their Written Statement of Defence as up to 25th April, 2024 as the initial ordered by this court hence no reply of 2nd May, 2024 by the Plaintiff.

7. That on 3rd June, 2024 when the parties were supposed to appear for first pre-trial conference as scheduled by this Honourable Court the defendants did not enter appearance. 4 8. That as the matter of procedures when non- appearance of defendants in the suit this court rules that the defendants had default to defend their case.

9. That the Plaintiff claims against the defendants for refunding TZS 514,430,875/= being the money defendants illegally authorized, withdrew and received from the Plaintiff.

10. That the Defendants has to pay compound interest of TZS 7,716,463.12/= on the principal amount at the rate of 1.5% per month from the date of delivery to the date of filing this suit.

11. The Defendants has to pay interest at the court rate of 11% per annum from the date of judgment till the decree is full satisfied.

12. That, I depose this affidavit in support of reliefs sought in the Plaint which was filed before this 5 Honourable Court, served and received by both respondents on 4th April, 2024.” I should premise my decision by pointing out that the delivery of this decision has taken relatively longer period than it would have ordinarily taken due to the challenges the Plaintiff faced in filing their application for default judgment online. The Plaintiff filed the application for default Judgment on 4th June 2024 as ordered but apparently the Plaintiff mixed-up some details pertaining to the names of the parties between this case and another one titled as a case between Africa Energy Limited as the Plaintiff and Amir Abdelmajeed as the Defendant whose attached copies of pleadings appear to be the same like in the present case. The Plaintiff’s application for Default Judgment was not traceable in the online case file until 20th September, 2024 and after several extensions of time were made to accommodate the Plaintiff’s efforts to overcome challenges to bring an application for default Judgment. The application for default judgment was made under Rule 22(1) of the Commercial Court Rule GN 250/2012 which provides that: 6 "(1) Where any party required to file written statement of defence fails to do so within the specified period or where such period has been extended in accordance with

sub-rule (2) of rule 20 within the period of such extension, the Court may, upon proof of service and on application by the plaintiff in Form No. 1 set out in the Schedule to these Rules accompanied by an affidavit in proof of the claim; enter judgment in favour of the plaintiff." (Underlining supplied) It is clear that the affidavit supporting an application for default Judgment is filed in proof of the claim. That is to say despite the default by the Defendants to enter their defence to the claims brought against them by the Plaintiff, under Rule 22(1) of the Commercial Court Rules, the Plaintiff is still required to prove all his claims against the Defendants. Proof of claims presupposes the Plaintiff bringing evidence to substantiate his claims contained in the Plaint. The evidence supporting and forming the basis of the default judgment should stem from the affidavit in proof of the claim. An 7 affidavit is a substitute for oral evidence or rather, it is oral evidence in a written form. The use of affidavits to tender evidence in courts is, inter alia, governed by Order XIX Rule 1 of the Civil Procedure Code CAP 33 of the Laws of Tanzania which provides that: “A court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the

court thinks reasonable.” The law on affidavits was set out in the case of Uganda v. Commissioner of Prisons, Ex parte Matovu (1966) E.A.514 at page 520. The principle in that case was accepted by the Court of Appeal of Tanzania in the case of PHANTOM MODERN TRANSPORT (1985) LTD and D.T. DOBIE (TANZANIA) LTD and in several other cases. In Uganda vs Commissioner of Prisons, Exparte Matovu case (supra), the rule on the making and use of affidavits for use in court was stated that: 8 “…as a general rule of practice and procedure, an affidavit, for use in court, being a substitute for oral evidence, should only contain statements of facts to which the witness deposes either of his own personal knowledge or from information he believes to be true.” (underlining added for emphasis). It is plain therefore that an affidavit for use in court is a substitute for oral evidence. Thus, where the Plaintiff files an affidavit in proof of the claim under Rule 22(1) of the Commercial Court Rules GN No.250 of 2012, he should assume that he is testifying before the court proving his claims in the plaint. In other words, all the evidence that would have been necessary for the Plaintiff to give in order to establish his entitlement to the claims and their quantum as claimed in the Plaint, should be reduced into writing under oath in the form of an affidavit in proof of the claim. Where the

Plaintiff had annexed copies of documents to the Plaint, he is required to produce or tender the same by annexing them to the affidavit in proof of the claim as Exhibits. He is proving his case by way of an affidavit. In the case at hand, the totality of the evidence in the affidavit in proof of the claim is as reproduced under paragraphs 5 to 11 of the affidavit in 9 proof of the claim reproduced verbatim above. Even if believed, it does not establish any of the Plaintiff’s claims in the plaint. There is no proof or even an explanation of how the Defendants incurred the alleged liability towards the Plaintiff for which the suit is brought. Whereas the law requires specific damages to be specifically pleaded and strictly proved, there is no proof whatsoever as to the basis and quantum of the special damages in the affidavit in proof of the claims in this case. The Plaintiff has not event stated under oath why the Plaintiff is claiming the several reliefs against the Defendants. The Plaintiff’s affidavit focuses only on attempting to prove and justify that the Plaintiff was entitled to present the application for default judgment due to the default done by the defendants in relation to their Written Statement of Defence. The Plaintiff should have substantiated his being entitled to the claims. To the contrary, the Plaintiff has invested all his efforts to prove that he was

justified to present an application for default judgment against the Defendants. That is wrong. The Court in granting the Plaintiff permission to file Form No.1 and an affidavit in proof of the claim, had already satisfied itself that there was no written statement of defence by the Defendants in this case and it was only in that regard that the Plaintiff was allowed to prove his case by way of an affidavit in proof of the claim 10 under Rule 22(1) of the Commercial Court Rules. The Rule does not guarantee that a Plaintiff who presents an application for Default Judgment where there is no Defence by the other side to the case must obtain a Judgment and Decree in his favour without proving his claims. A default Judgment under Rule 22(1) of the Commercial Court Rules, is not a Judgment on admission as such. In NITRO EXPLOSIVES (T) LIMITED VERSUS TANZANITE ONE MINING LIMITED, Civil Appeal No. 175 of 2019 the Court of Appeal at page 11 underscored the difference between the two when it held: The contents of the letter; annexture 2 to the affidavit, if we are to digress, are plain enough to constitute admission which, had the suit been tried in a court other than the Commercial Court, would have entitled the appellant to apply for a judgment on admission in terms of Order XII rule 4 of the CPC. (Underlining supplied) I must emphasize that the word “may” which is used under 22(1)

of the Rules signifies the discretionary powers of the court which should be exercised judiciously. To enable the Court make analysis and draw inferences 11 and conclusions, the affidavit in proof of the claim itself was supposed to contain evidence proving the claims contained in the plaint. The affidavit in proof of the claim was not merely required to contain facts proving that the Plaintiff was entitled to prove his case by way of an application for default Judgment. The Plaintiff should have made that application and substantiate it by evidence in his affidavit in proof of the claim. He should have brought evidence to prove the claim. He utterly failed to do so. Perhaps, the Plaintiff misconceived the status of the allegations and statements in the Plaint as being evidence and thereby took it for granted that the court would pick the details from the Plaint and treat the same as the evidence in composing the Judgment. In law, pleadings do not constitute nor contain evidence. Order VI Rule 3 of the Civil Procedure Code, CAP 33 provides that: 3. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when 12 necessary, be divided into paragraphs, numbered consecutively; and dates, sums and

numbers may be expressed in figures. (Underlining supplied) The Plaintiff could not therefore rely on the facts, explanation and allegations contained in the plaint as the evidence proving the claim in this suit. Evidence was specifically needed so as to prove the averments and allegations contained in the Plaintiff’s pleadings. For this case, under Rule 22(1) of the Commercial Court Rules, that evidence was required to be adduced in the form of an affidavit in proof of the claim. No relevant evidence exists therein. Not even narrative evidence. All in all, I find that the Plaintiff has failed to prove the case at hand and the same is hereby dismissed for lack of merit. As the matter proceeded without the involvement of the other side, I make no order as to costs. It is so ordered. A. H. GONZI

JUDGE 11/10/2024 13 Judgment is delivered in Court this 11th day of October, 2024 in the presence of Mr. Kessy Ngau Learned Advocate for the Plaintiff and absence of the Defendant who had notice of the date of Judgment, this 11th day of October 2024. A. H. GONZI

JUDGE 11/10/2024 14