MOHANS OYSTERBAY DRINKS LTD VS BRITISH AMERICANO TOBACCO KENYA LTD COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 90 OF 2014 MOHANS OYSTERBAY DRINKS LIMITED............. PLAINTIFF VERSUS BRITISH AMERICAN TOBACCO KENYA LIMITED..................................................... DEFENDANT RULING Mansoor, J: Date of Ruling- 09t h NOVEMBER 2015 The plaintiff, after closing his evidence applied that the summonses be issued to one Mr. Haryad Malewo, the Employee of the Defendant as the Court’s witness not referred to in the list of witnesses for the plaintiff, and no witness statement has been filed for Mr. Haryad Malewo either by the Plaintiff or the Defendant. The defendant opposed the 1 application saying that the plaintiff had not filed a list of witnesses as required by the Civil Procedure Code, and no witness statement has been filed for Mr. Haryad Malewo as required by Rule 49 (1) of the High Court (Commercial Division) Procedure Rules, 2012 and prayed that the application be disallowed and the evidence of the plaintiff be ordered to be closed. On this, the plaintiff filed the witnesses’ statements of only two witnesses, and only one witness was brought before the Court for cross examination. It was argued by the learned Counsel for the Defendant, Ms. Fatma Karume that, Order 16 Rule 1 does not apply to Court witnesses but the witnesses of the parties to a suit. She said, plaintiff’s application to summon a witness under Order 16 Rule 1 of the Civil Procedure Code should be rejected on the ground that Mr. Haryad Malewo’s statement was not filed in Court as the plaintiffs witness, within seven days from the date the mediation was marked failed as required by Rule 49 of the Commercial Court Rules, and an application made by 2 the Counsel for the Plaintiff, Counsel Dilip Kesaria intends to circumvent the obligations of the parties put under Rule 49 of the Commercial Rules, and if the Counsel for the plaintiff shall be allowed to bring an additional witness under Order 16 Rule 1 of the Civil Procedure Code, then this Court would be setting a bad precedent in that parties will be using Order 16 Rule 1 of the CPC to undo the obligations which a party has under Rule 49 of the Commercial Rules, which essentially requires a party to be prepared for trial. The Counsel for the Defendant referred this Court to the case of Panchkari Mitra vs Panchanan Saha And Others AIR 1924, Cal 971 at page 2, where the court in India had held that: “Order 16 Rule 7, Civil Procedure Code provides that at any time after the suit is instituted the parties may obtain on application to the Court or to such officers as it appoints in this behalf summonses to persons whose attendance is required either to give evidence or to produce document. Under this rule a party is entitled as o f right to summonses on his witnesses. Bai Kali vs Alarakh Pirbhai (1890) 15 Bom. 86. So long as the 3 application is made after the institution of the suit and before its final disposal the court is bound to issue summonses. The only case in which the court has power to refuse to issue summonses is where the application is not made bonafide, and in such a case the court acts in the exercise of its inherent power to prevent the abuse o f its own process. Ms. Fatma Karume argued that this application is an abuse of the Court process and should be rejected. The plaintiff had not filed the statement of Haryad Malewo, he has not even filed the list of the witnesses to be produced on trial. It was observed by Counsel Fatma Karume that giving an opportunity to the plaintiff to produce the evidence of Haryad Malewo will be to the prejudice of the defendants as the plaintiff had not filed neither the witness statement nor the list of witnesses before trial. Mr. Dilip Kesaria did not actually state that this witness Mr. Haryad Malewo should be summoned to give evidence as the plaintiffs witness, certainly it cannot be the witness of the 4 Court as long as Mr. Kesaria’s application was made under Order 16 Rule 1 of the CPC; a witness of the Court can only be summoned under Order 16 rule 14 of the CPC, which provides that Court may of its own accord summon as witnesses strangers to the suit, when the Courts thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit to give evidence or to produce document. The provision of Order 16, Rule 1 of the CPC, applies to parties’ witnesses and provides as follows: "At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents." The proceedings in the High Commercial Division are governed by the High Court (Commercial Division) Procedure Rules, 2012, in which under Rule 49 and not later than seven days after mediation had failed and before settlement of issues, each party shall present in Court witnesses statements of the 5 witnesses whom it proposes to produce for cross examination. And that no party is permitted to produce witnesses other than those who had given their witness statements. Rule 49 did not give any exceptions to the general provisions of the rule or jurisdiction to the Court to give permission to parties who omitted to file their witness statements or who wants to add additional witnesses other than those who have given their statements as required under the Rules. Rule 49 of the Rules did not also provide for filing of additional witness statements or provision of extension of time to file witness statement or additional or even supplementary witness statements. I understand that where there is a lacuna in Commercial Rules, a party can apply the provisions of the Civil Procedure Code, however Rule 1 of Order 16 allows a party to make the application to Court or to such officer as it appoints in this behalf, so that the party may obtain summonses for persons whose attendance is required in Court. 6 In the circumstances of this case, the plaintiff did not give the statement in chief of Haryad Malewo and in my opinion the Provisions of Order 16 Rule 1 would only be applicable to a witness who had already given his statement, and a summon can then be issued to produce this witnesses for cross examination after paying expenses to him. Order 16, Rule 1 clearly give the discretion to the Trial Court to give summons for examination of witnesses who are already in the list of the party’s witnesses or who have already given their statements but whose attendance cannot be procured for reasons beyond party’s control. Order 16, Rule 1 no doubt makes reference to the list of witnesses already submitted in court and in regard to commercial rules to the witnesses whose statements have already been filed in court. The emphasis is on the point that the witnesses who have not given their witness statements cannot be produced without the permission of the Court and without showing good cause for their failure to file witness statements. Court's power to take evidence of any witness not 7 in the list of a party’s witnesses and who have not been produced by a party to the suit is given under Order 16 Rule 14 of the C.P.C, and this power remains unfettered. The learned Counsel for the plaintiff had been given an opportunity to lead evidence, he produced one witness for cross examination and closed his case, the rules governing High Court Commercial Division Proceedings does not give a party any room to produce additional witnesses other than those who have already filed their witness statements as required by Rule 49 of the Commercial Rules. I am, therefore, of the opinion that the application to summon Mr. Haiyad Malewo as the Court’s witness, made under Order 16 Rule 1 of the CPC should be disallowed as the application was made under the wrong provision of the law, and intended to circumvent the provisions of Rule 49 of the Commercial Rules. It is so ordered 8 DATED at DAR ES SALAAM this 09th day of November, 2015 MANSOOR JUDGE 09 th November 2015 9