LEGEND AVIATION PTY LTD VS WHIRLWIND AVIATION LTD COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 61 OF 2013 LEGEND AVIATION (PTY) LTD t/a KING SHAKA AVIATION...PLAINTIFF VERSUS WHIRLWIND AVIATION LIM ITED..............................DEFENDANT 10th & 30th June, 2015 RULING MWAMBEGELE, J.: This is a ruling in respect of a prayer made by Ms. Linda Bosco, learned counsel for the defendant to have the witness statement of a certain Mr. Cornelius Van Eijk admitted in evidence. The prayer was orally made before me on 10.06.2015 when the case was slated for hearing of the defendant's case. It should be noteworthy here that the procedure in this court, including hearing, is now governed by the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (henceforth "the Rules"). Rule 49 (1) thereof requires that for all proceedings commenced by a 1 plaint, evidence in chief shall be given by way of a statement on oath or affirmation, and further rule 56 (1) imposes a mandatory requirement to produce such witness for cross examination where a party intends to rely on such statement as evidence. In that accord therefore, since all evidence in chief, be it for a plaintiff or defendant, must be received in court by way of such a statement, in order for the same to be relied upon in court, the maker of the statement must be procured for the purpose of cross-examination. Failure to do so will either lead to the witness statement being struck out from the record or, upon exceptional circumstances being shown for such default, it will be admitted in lieu of the maker's examination in chief but shall be accorded lesser weight. These are the dictates of rule 56 (2) and (3) of the Rules. In the present case, Ms. Bosco, learned counsel, informed this court that the witness who was to appear for cross-examination could not make it and had sent them an email informing them that he is unable to come because he has financially gone down. The court and the opposite party were shown the relevant email. On this premise, Ms. Bosco stated that it email has shown exceptional circumstances preventing the witness from appearing in court and asked me to be so satisfied so that I could admit the statement and accord it lesser weight. Mr. Lusiu, the learned counsel who had entered appearance for the plaintiff objected the prayer putting mainly that the reasons adduced are not sufficient to warrant exemption of the witness from appearing in court for cross-examination. The learned counsel was of the view that the email 2 produced was not enough and that admitting the statement without according the plaintiff an opportunity to cross-examine the said witness will be prejudicial to the plaintiff's case. In a short rejoinder, Ms. Bosco reiterated her position but added that, in the alternative, she would pray for permission to present an affidavit of the witness to the effect that his statement be admitted. She also added that the plaintiff's case will not be prejudiced by admitting the statement because, in terms of rule 56 (3), the same will be accorded lesser weight. I have heard the contending arguments of the two trained minds keenly. I must state from the outset that if it were not for Mr. Lusiu's lack of strength in his opposition to Ms. Bosco's prayer, I would have refused her (Ms. Bosco's) prayer. I expected Mr. Lusiu to challenge the authenticity of the document it being electronically transmitted and stored information. I also expected him to challenge the names on the email vis-a-vis the. names on the witness statement intended to be tendered and admitted. The author of the email is indicated to be Neels Van Eijk. The witness statement which is intended to be admitted is Cornelius J. Ban Eijk. Neels Van Eijk and Cornelius J. Ban Eijk are, certainly, two different names. When the court asked Ms. Bosco, learned counsel for the defendant if the names were meant for the same person, she stated from the bar that they indeed belonged to one and the same person. She told the court that Neels is a nickname for Cornelius. The learned counsel's explanation is just one from the bar which would be unacceptable. And even if, just for the sake of argument, the court was to agree with Ms. Bosco that Neels in 3 the email indeed referred to Cornelius in the witness statement, still there is a "J." between the names in the statement and there is none in the email. Unless there would be a sufficient explanation, Cornelius Van Eijk is not Cornelius J. Van Eijk. In the premises, the email could not, at any rate, be relied upon to seek such indulgence of the court at such a crucial stage of the trial. I expected him, as well, to challenge Ms. Bosco's statements from the bar. But Mr. Lusiu, learned counsel for the plaintiff, has been very casual in his objection. He simply objected to the prayer and stated that his client's case would be prejudiced without telling the court how the plaintiff's case would be so prejudiced. I expected him go into the details why the email should not be relied upon to warrant the court admit the witness statement and to detail the prejudices that the admission of the statement would bring about if admitted in lieu of the witness's examination in chief. I have seen the document which the learned counsel for the defendant availed Mr. Lusiu and to the court for identification. It is an electronic communication between the witness and Ms. Bosco. The correspondence reads as follows: "Dear Linda Thank you for your assistance n this case. Linda Whirlwind Aviation stopped all operations in November 2013, the company lost hundreds of 4 thousands of Dollars and lost all its operating licences in 2014. I left Tanzania in November 2013 and haven't had [any] income or a job in 15 months, I am truly not in a position to come to TZ at this stage, I will make good on the monies owed to you as soon as possible, I need your advise on the plan forward Thanks so much." Surely, the words speak it loud that the said witness will not be able to show up in court here in Tanzania for want of financial resources. It, however, does not come out clearly if the intended witness did contemplate the course of action taken by Ms. Bosco, his advocate. If anything, the correspondence is suggestive of the fact that he is still awaiting an advice on the way forward, otherwise, there should have been a formal communication to this court on the said predicament and the same should have been so formally brought by way of an affidavit. But having considered on the defendant's right to be heard. And having considered the fact that the defendant has opted to be heard in the manner Ms. Bosco prays. And having juxtaposed the pros and cons of refusing or not refusing the prayer in the name of natural justice, I have found myself unable to refuse the prayer. It seems to me that justice will prosper in allowing the prayer than refusing it. Let the witness statement be admitted in lieu of the witness's examination in chief so that this case 5 comes to its logical finality in a manner that will not leave justice crying. I think the balance of probabilities tilts against Mr. Lusiu's objection. All said and done, Ms. Bosco's prayer to have the statement of Cornelius J. Van Eijk admitted in lieu of the witness's examination in chief is granted. The statement will formally be admitted and marked accordingly when this case will be called on for defence hearing on a date to be fixed. As no party prayed for costs in this application, the same will be in the cause. Order accordingly. at DAR ES SALAAM this 30th day of June, 2015. • ■5 J. C. M. MWAMBEGELE JUDGE 6