20160720 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 110 OF 2013 MURO INVESTIMENT COMPANY LTD ....................... PLAINTIFF VERSUS MAXINSURE (T) LTD ................................................ DEFENDANT RULING MKASIMONGWA, J. This suit came for hearing on 29/4/2016 when neither the plaintiff nor his advocate appeared in court whereas Miss Gigi Maajar appeared on behalf of the defendant. Following the absence of the plaintiff, the learned advocate for the defendant made an oral application that the plaintiffs case be dismissed for want of prosecution and that the defendant's case brought by way of a counter claim should be ordered to prceede ex-parte. With a view to substantiating the prayers Miss Maajar submitted that the plaintiff company filed his plaint on 11/6/2013. According to the plaint the company is claiming from the Defendant a total sum of Tshs. 250,000,000/= being total unpaid third party claims for eight motor vehicles that were gutted down and destroyed by fire caused by the defendant's insured vehicles; the loan taken by the plaintiff to pay for premiums of his other vehicles after the 1 defendant, without any justifiable cause cancelled all insurance policies with the plaintiff and delayed in refunding the prorata premiums and for general damages. Subsequently, the defendant filed the Written Statement of Defence and a Counter Claim against the plaintiff on 20/8/2013 which was served upon the plaintiff and it was acknowledged by signing it on the same day. He also filed the Third Party Notice Application sometime on 2/9/2013. The plaintiff has not, to date, filed the Written Statement of Defence to the counter claim which ought to have been filed by 10/9/2013. Further there has been no any application for extension of time in which to file it nor has any been granted. Miss Gigi Maajar, submitted further that apart from failure to file the written statement of defence to the counter claim as shown above it has been evident that the plaintiff had not appeared in court for almost three years. He was last preset in court on 3/9/2013 when the case was adjourned before Hon. Msumi, the then District Registrar. As a result the case has been adjourned several times due to the absence of the plaintiff who. seems to have lost interest in the matter. Miss Maajar prays the court that it dismisses the suit brought by the plaintiff for want of prosecution under Order IX Rule 8 of the Civil Procedure Code [Cap 33 R. E 2002]. As to the second arm of the prayers, Miss Maajar submitted that, although the plaintiff was duly served with the counter claim on 20/8/2013 he has not to date filed a written statement of 2 defence. In terms of Order VII Rule 11 of the Civil Procedure Code the plaintiff was and still is required to file the defence within 21 days since when the counter claim was served upon him. He has failed to file the defence to the counter claim for about 2 years and 7 months from the date the counter claim was served upon him. Under the circumstances Miss Maajar prays the court for an order that, Under Order VII Rule 14(20(b) of the Civil Procedure Code, hearing of the counter claim proceeds ex-parte. As to the Application for Third Party Notice filed by the defendant on 2/9/2013 and which was scheduled for hearing on 29/4/2016, Miss Maajar prays the court that it markes it withdrawn with leave to re-file it. I have considered the .prayers and submissions made by Miss Gigi Maajar along with the record of this case. It is evident that the plaintiff filed his plaint on 11/6/2013 making a claim as shown above against the defendant. In response to the claim, on 20/8/2013 the defendant filed a written statement of defence and counter claim. He also filed an application for an order of the court allowing him to present a Third Party Notice on 2/9/2013. Court records reveal that on 10 /9/2013, the plaintiff did file a "Reply to written statement of deference and to the counter claim" in which he prays that the counter claim be dismissed with costs and reiterates the prayers in the plaint. As Miss Maajar admits that the counter claim was served upon the plaintiff on 20/8/2013 when the plaintiff filed the reply to the counter claim on 10/9/2013, he did 3 so- within the prescribed limitation period. As such the provisions of Order VII Rule 14(2) of the Civil Procedure Code do not apply. -> Miss Maajar submitted on the non-appearance of the plaintiff when he is required to appear in court. The record shows that this matter was called to the court for the first time on 4/7/2013 when it was fixed for mention on 3/9/2013 when it came before Hon Msumi - DR. The plaintiff was represented. As from then the suit was called in court on 13/2/2014, 22/5/2014, 2/9/2014, 10/3/2015, 28/4/2015, 15/5/2015, 5/6/2015, 13/7/2015, 14/9/2015, 19/10/2015, 8/12/2015, 23/3/2016, and 29/4/2016. In all those dates neither the plaintiff nor his advocate appeared in court. That being the case, one can as Miss Maajar does, think rightly that the plaintiff has lost interest in his case. The prayer by the Defendat's counsel to have this suit by the plaintiff be dismissed for want of prosecution is justified. The plaintiffs suit which is totally disputed by the defendant is therefore dismissed with costs for want of prosecution in terms of Order IX Rule 8 of the Civil Procedure Code. Sincerely the plaintiff has lost interest in defending the counter claim. As such the same is ordered to be heard ex-parte against the plaintiff. As to the prayer to withdraw the application for the Third Party Notice, the same is so marked. Since the plaintiffs claim has been dismissed, there arises no issue of the order withdrawing the application with leave to re-file it. The defendant will have as of 4 -- -- -----rigb:t-an-opportunity-to--file-the _notiG_~jLt_l:!~- _pla~1:1tiff will re-institute ----- ---- the matter in accordance with the law. __ Dg_te9- ~t J?ar es Salaam this 20 th day of July, 20 I-6; 5 < • -i J.. L ( . Date: 20/7/2016 Coram: Mkasimongwa, J For the Plaintiff: Absent For the Defendant: Mr. Kitare (Adv) C.C. Mabugo Mr. M. Kitare (Adv). My lord, I am appearing for the defendant. The matter 1s coming for Ruling; I am prepared to receive it. Court: Ruling delivered in Chambers on this 20 th of July, 2016 in the presence of Miss Marilymo Kirate (advocate) for the defendant only. & E.J.Mk~a JUDGE 20/7/2016 Order: Ex-parte hearing of the counter claim on 13/9/2016 E.J~gwa JUDGE 20/7/2016 6