community food limited vs quality food beverage 2011 tzhc 2023 25 july 2011

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO 177 of 2008 COMMUNITY FOOD LIMITED...................................PLAINTIFF VS QUALITY FOOD BEVERAGE............................................DEFENDANT Ruling Date of last Order: 24-07-2012 Date of Ruling: 25-07-2011 JUMA, J: W hen this suit came up for the continuation o f the hearing of the defence witness on 24™ July 2012; Mr. Eustace, the learned Advocate representing the Plaintiff was present and expressed his readiness to proceed. Mr. Kamugisha and Mr. Rattansi, the two learned Advocates who have all along been representing the defendant, were both absent. In their absence; appeared Mr. Anjan Bandyopavhya, who introduced him self as a Principal Officer of the defendant company. The Principal Officer o f the defendant inform ed the court that Mr. Kamugisha is not around and that he (the Principal Officer) needed m ore tim e to establish the w hereabouts o f Mr. Kamugisha! i Mr. Eustace expressed his strong o pposition to any further adjournm ent of the defence case. The learned Advocate pointed out that the defendant's case is conducted by Mr. Kamugisha and Mr. Rattansi and w ondered why both learned Advocates failed to show up for the hearing of the case. Mr. Eustace also noted that although the defendant was scheduled to begin the examination in chief of its second witness the Principal O fficer came to court w ithout bringing the second witness. Mr. Eustace drew my attention back to the 4th June 2012 when the defence came up for continuation of hearing and Mr. Rattansi inform ed the court that he was not ready because defendant's witness was not available. Relying on the provisions of O rder XVII Rule 1 of the Civil Procedure Code, Cap. 33 (CPC), Mr. Eustace asked this court to disallow any further requests for adjournm ents of the defence case, and this court should on the basis of evidence on record p ro ceed to o rd e r final su bm ission s, Ju d g m e n t and bring this suit to a con clu sion . O rder XVII Rule 1 of the CPC state: 3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance o f his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith. In his reply, Mr. Anjun the Principal O fficer of the defendant com pany repeated his request for further adjournm ent to allow Mr. 2 Kamugisha w ho had been a lead Counsel to appear and lead the defence case. From the subm issions of the parties it is pertinent to pause and reflect back that this case which was filed way back in 2008 has been pending for a long time. Due to this extended pendency, the initial speed track assigned to this case has been extended twice, on 5th December 2011 and again on 4th June 2012. This case has reached a stage where the Plaintiff Com pany has already led its witnesses and closed its case. One witness for the defendant- Am ri Haji Suleiman (DW1) has already been heard. The issue for my determ ination is w hether the defendant com pany has failed to cause the attendance of its witness within the meaning ascribed under O rder XVII Rule 3 of CPC. W ay back on 5th Decem ber 2011 Mr. Kamugisha had requested, and this court had allowed the defendant to bring one more witness in support of the defendant's case. The defendant com pany had a legal duty to cause the attendance of defence witnesses to advance this suit to its next stage. Mr. Eustace is with due respect correct to point out that on 4th June 2012 when the defence came up for continuation o f the hearing of defence witness, it was Mr. Rattansi again who inform ed the court that he was not ready because defendant's witness was not available. Today the defence case came up for hearing but the defendant com pany not only failed to cause the attendance of the witness, but both the learned Advocates representing the defendant failed to appear in court. The defendant has clearly defaulted in its obligation to not only secure the 3 attendance, but to proceed with examination in-chief. In light o f the default, I am not persuaded that further adjournm ent will be to the best interests o f justice. I shall therefore not grant any further adjournm ent to allow any further witness by the defendant company. This suit shall proceed to the stage of hearing subm issions of the opposing sides and finally disposed on the merits based on evidence o f witnesses who have so far testified. Plaintiff is awarded costs. I.H. Juma JUDGE 25-07-2012 ( 4