NIC BANK T LTD VS HIRJI ABDALLAH KAPIKULILA COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM Commercial Case No. 116 of 2016 NIC BANK TANZANIA LIMITED ........ PLAINTIFF Versus HIRJI ABDALLAH KAPIKULILA ........ DEFENDANT RULING SEHEL, J, When the matter was called today for hearing, counsel Makarios who appeared on behalf of the plaintiff notified the court that he prepared the witness ready for hearing but requested the court to hear from the head of the legal department of the plaintiff on the whereabouts of the witness. The officer, Mr. Richard Eusebia agreed with the counsel that yesterday they prepared the witness but when he went to pick him, the witness refuses with a reason that i he is not i n a position to speak before the court. He said, he tried to convince the witness but he kept on refusing with the same reason. With this information then counsel Makarios prayed to invoke Rule 2 (2) of the High Court (Commercial Division) Procedure Rules, GN 250 of 2012 (hereinafter referred to as "the Rules") for this Court to issue summons for the witness, Michael Clement Benedict Kimwaga to attend under Order XVI Rule 1 of the Civil Procedure Act, Cap. 33 (hereinafter referred to “CPC"). He contended that the witness can be compelled to attend because this Court has found him competent to testify as per the provisions of Section 127 of the Evidenc~ Act, Cap.6 (hereinafter referred to as "the Act"). The prayer was strongly resisted by learned advocate Ruhumbika by arguing that there is no l acuna in the Rules since Rule 56 of the Rules is loud and clear that after ■ filing witness statement, the witness has to appear for cross •examination and where the witness does not appear the remedy is provided under Rule 56 (2) of the Rules. ~ 2 He contended that in the last appearance, this Court correctly ruled that Michael Clement Benedict Kimwaga is competent to testify thus the matter was fixed to come today for hearing. He said since the witness is not willing to appear as stated by the head of legal counsel for the plaintiff then the witness statement should be strike out. Counsel Makarios rejoined that Rule 56 has an exception of exceptional reasons. He thus said in the matter at hand there are exceptional reasons which are the witness first disappeared, his father appeared before the court, and the witness was examined whether competent to testify. On lacuna, he argued that the Rules do not provide for issuance of summons. He thus insisted for their prayer. From the submissions made by the counsels and from the facts, it is on record that today the matter is fixed for hearing of the plaintiff's case. It is also not disputed that the plaintiff witness one Michael Clement Benedict Kimwaga did not turn up for cross examination. The witness did not attend the hearing because we^ 3 have been told by the head of legal department of the plaintiff that when he went to fetch him, the witness refused to come. Due to this, counsel for the plaintiff prayed for the court to invoke Rule 2 (2) of the Rules and issue summons to the witness under Order XVI Rule 1 of CPC. The prayer was opposed by the counsel for the defendant arguing that Rule 56 is sufficient thus there is no need for the court to invoke Rule 2 (2) of the Rules. Therefore, this Court is invited to determine as to whether it should invoke Rule 2 (2) of the Rules so as to bring into picture Order XVI Rule 1 of CPC. It is trite law that a suit commenced by a plaint in commercial court its evidence in-chief is adduced by way of a witness statement (See Rule 49 (1) of the Rules). This position of the law has been repeatedly stated by this Court in its numerous decisions. For instance, Hon. Nchimbi, J (as he then was) in Barclays Bank (I) Limited Vs Tanzania Pharmaceutical Industries & 3 others. Commercial Case No. 147 of 2012 (Unreported) said:^^ 4 ",..The only way to adduce evidence in chief In this court is by witness statement io be filed by respective parties... [and] that requirement is mandatory... ' ’ Luckily in the matter at hand, the plaintiff did file one witness statement of Michael Clement Benedict Kimwaga. After, filing the witness statement, as correctly submitted by counsel Ruhumbika, the witness is required to appear for cross examination. The Rules under rule 56 (1) requires a party who i ntends to rely on a witness statement to cause his witness to attend the cross examination. For the matter at hand, the case was at the stage of hearing the plaintiff's case thus the burden lies to the plaintiff to bring Michael Clement Benedict Kimwaga for cross examination. We are told that the plaintiff went to fetch the witness but the witness declined to come to court. It is argued that because the plaintiff went to fetch the witness and the witness -declined to come then the court should invoke rule 2 (2) of the Rules. With due respect to the reasoning of the counsel for the plaintiff, Rule 56 (2) of the Rules is loud and clear that:~ 5 "(2) Where the witness fails to appear for cross examination, the Court shall strike out his statement from the record, unless the Court is satisfied that there are exceptional reasons for the witness’s failure to appear." It follows then that where the witness fails to appear then the Court shall strike out the witness statement. However, if the Court is satisfied that there are exceptional circumstances for non- appearance then the Court can admit the statement and give it lesser weight as per Rule 56 (3) of the Rules. As I said the witness did not appear and the reason for his non appearance is because he did not want to come to court. On these facts, I am invited by the counsel for the defendant to strike out the witness statement. Counsel Makarios had a different view as he said that there are exceptional reasons not to strike it out. I must admit that the Rules do not define what constitutes “failure to appear" and “exceptional circumstances". To my knowledge failure to appear may as well be due to unwillingness of a witness to appear and testify; or due to death; illness or infirmity. 6 According to Section 127 (1) of the Act, a person with extreme old age or who suffers mental illness is considered not to be competent to testify thus he is not compelled to come and testify. It is on records that the plaintiff in this case first came up with an excuse that the witness has mental illness thus cannot testify. However, on 21st day of August, 2018 upon the witness being cross examined by the court, it was found that he is competent and the court ordered for the witness to be sworn in for hearing. Nonetheless, the hearing was adjourned so as to allow the counsel for the plaintiff to prepare his witness. It was adjourned to today's date. As I said, the witness today did not turn up because we are told, he “is not in a position to speak". I am fully aware that the plaintiff is bringing a case that she tried to cause the attendance of her witness but the exercise was futile. Could this scenario be termed as “exceptional reason" to at least entitle the plaintiff the benefit of the witness statement be admitted as evidence with a lesser weight under Rule 56 (3) of the Rules? Justifiably unwillingness of the witness to appear for cross examination is not and cannot be taken as^ 7 exceptional reason envisaged under Rule 56 (2) of the Rules. To allow such an act of resistance will tend to make the Rules meaningless. For this reason, I see no merit to the prayer made by the counsel for the plaintiff. Therefore in terms of Rule 56 (2) of the Rules I proceed to strike out from the court's records the witness statement of Michael Clement Benedict Kimwaga and since there is no any other evidence from the plaintiff, in terms of Order XVII Rule 3 of CPC I dismiss the main suit with costs. It is so ordered. DATED at Dar es Salaam this 11th day of October, 2018. 11th day of October, 2018. 8