LIBERTY TRANSCARGO LTD VS KOGEL FAHRZEUGWERKE MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 299 OF 2015 (Original Commercial Case No. 100 of 2013) LIBERTY TRANSCARGO LIMITED....................APPLICANT VERSUS KOGEL FAHRZEUGWERKE GMBH - IN LIQUIDATION..............................RESPONDENT RULING Mansoor, J: Date of Ruling- 28th AUGUST 2015 The Applicant brought an application for striking out of the witness statements of the plaintiff for being irrelevant and inconsistent of the plaintiffs pleadings. He prayed for striking out of the witness statements of Andrea Maria Franken, 1 Alexander Holy and Marc Heigele. He made the application under Rule 53 of the High Court (Commercial Division) Procedure Rules, 2012, which provides as follows: “During the hearing of the suit and upon an oral application by a party or suo moto, the Court may order that any inadmissible , scandalous, irrelevant or otherwise oppressive matter be struck out of any witness statement. ” The application is supported by an affidavit of Casmir Faustine Nkuba, the Advocate for the Defendant, stating at paragraph 6 of the affidavit that the plaint pleaded matters relating to appointment of Mr Ardnt Geiwitz as liquidator of the plaintiff’s company, who after investigation of the affairs of the company found out that the defendant owed the plaintiff the sum of USD 45,012, and that none of the witness statements has explained this fact. The Applicant stated in paragraph 7 of the affidavit of the defendant’s Counsel that what was pleaded in the witness statements of the plaintiff are evidence and an attempt to defeat the Court Order of 27th May 2013, and seeks to raise matters not pleaded by the plaintiff in the main suit. To the above application, the Respondent raised a preliminary objection that the application contravenes Rule 53 of the Commercial Court Rules for being premature and wrongly 2 made. The Counsel for the Applicant has stated that Rule 53 is clear, and an Applicant ought to have made an oral application and during the hearing of the suit, and not at the stage of the Final Pre Trial Conference. He said, on the contrary the Applicant has not made an oral application but filed a chamber application. The Respondent prayed for the dismissal of the application. On determining the objections, I shall take the view of the Respondent’s Counsel that the hearing of the commercial cases commences when parties file the witness statements of their respective witnesses. Rule 43 to 68 of Part VI, of the Commercial Court Rules is dealing with appearance of parties, hearing and examination of witnesses, and this is after the court has finalised the processes of Court Annexed Mediation processes. Witnesses statements are received by the Court as Evidence in Chief as per Rule 49 of the Commercial Court Rules, thus hearing of the case or trial begins at the state of filing and recording the witness statements by the Court. Once filed the witness statement forms the records of the Court, and, and a witness who has filed a statement is required to appear in court for cross examination, and if he does not appear, the court will give lesser weight to his evidence in chief. This position was taken by Hon Judge Makaramba J in his Ruling of 17th September 2014, in the case of Maltauro Spencon Striling JV Limited vs Mwananchi Engineering & 3 Contracting Company Limited, Commercial Case No. 101 of 2013. He said, “ on the date o f cross examination of witnesses, the adverse party may object the admissibility of documentary evidence supporting the Witness Statement, but yet the sworn statement remains part of the records of the proceedings.” Thus, an application under Rule 53 to strike out the irrelevant part of the witness statement may be made even before a witness is called in court for cross examination, as cross examination entails that examination in chief is already done, by way of filing a witness statement. Under the Commercial Court Rules, specifically Rule 50 (c) of the Rules, the Court is required to determine who among the witnesses who have filed their witness statements will be required in court for cross examination, and this is done during the Final Pre Trial Conferences, and after the witness statements have already been filed. Thus hearing of the suit, and recording of evidence in chief has started at the moment when a party files the witness statements. Thus this application was not made prematurely. On an issue of whether or not an application under Rule 53 of the Commercial Rules could be made in written form, I also take the view of the Counsel for the Applicant. Item 7 of the First Schedule to the Rules requires that any application 4 before the Court must be made upon payment of prescribed fee, and the Rules have not prohibited an application under Section 53 to be made by a written application. This application is proper before the Court, and the objections raised by the Respondents are hereby overruled and dismissed with costs. DATED at DAR ES SALAAM this 28 th day of August, 2015 5