TIMOTHY DANIEL KILUMILE VS HILLARY PATRIC OTAIGO COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA COMMERCIAL CASE NO. 22 OF 2014 TIMOTHY DANIEL KILUMILE COMPANY LTD........... PLAINTIFF VERSUS HILLARY PATRICE OTAIGO t/a NYANKANGA FILLING STATION.................... DEFENDANT 16th & 16th April, 2015 RULING MWAMBEGELE, J.: The plaintiff, a limited liability company, sued the defendant, a natural person trading in the name and style of Nyankanga Petrol Station for payment of the sum of Tshs. 86,160,360/= for the 39,000 litres of petrol supplied to the defendant as well as interest thereon at the monthly rate of 31% from 16.07.2013 to the date of judgment, general damages and interest on the decretal sum as well as costs of this suit. Briefly, the main contention revolves around the breach by the defendant of an obligation to pay for the said petrol delivered to and i received by the defendant. When the matter came up for the first pre­ trial conference before me on the 16.04.2014, the plaintiff was represented by Mr. Weiwei learned counsel, flanked by Mr. Timothy Daniel Kilumile; principal officer of the plaintiff. The Defendant was absent. However, a certain Mr. Nicholaus Rweikiza told this court that he had been called by the defendant and asked him to come and inform the court that he is sick. He said that the defendant is admitted in hospital but that the name of the hospital was not disclosed to him. Mr. Weiwei, learned counsel for the plaintiff was quick to pray to the court to reject the information. He, again hurriedly, moved the court in light of rule 31 (1) (b) and (c) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules") to strike out the defendant's written statement of defence and enter judgment in favour of the plaintiff. The learned counsel further made a prayer in the alternative that should the court be inclined to believe the information that the defendant was indisposed, he should be ordered to pay his costs for today's appearance. He stated that the reason thereof is that he is known to the defendant and that the defendant has his cell phone number as well as the cell phone numbers of the plaintiff and his agents. He thus should have informed them beforehand. I reserved the ruling for few hours which I am now set to pronounce. 2 I have carefully scanned the court record and indeed it is indisputable that the defendant was properly served as appears in the affidavit of the process server sworn on 13.04.2015. And to clinch it all, the appearance of Mr. Rweikiza informing the court that he was called by the defendant and asked to come to inform the court of his sickness, if at all, proves his awareness of the requirement to appear today. The Rules of this court, and particularly rule 31 (1) (b) and (c), as rightly put by Mr. Weiwei, counsel for the plaintiff, caters for the situation at hand; that is, the consequences for non-appearance of a party on the day fixed for pre-trial conference. The Rules however, do not provide for the mode of appearance. Instead, under rule 43, it is provided that rules as to appearance shall be governed by Order IX of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC"). Therein, at rule 1, appearance may be either in person or by recognized agent or an advocate. In the circumstances, the only question which comes to the fore would be what is the status of Mr. Rweikiza's appearance who brought the information regarding the defendant's sickness. Nothing was supplied either before the appearance or during the appearance in the nature of concrete identification of Mr. Rweikiza as regards his status in relation to the defendant. He only introduced himself as a relative of the defendant. Obviously, the said Rweikiza is 3 not an advocate. Neither did he masquerade to be one. The question which arises at this juncture is whether, as a relative, Mr. Rweikiza falls within the category of recognized agents for the purposes of appearance as per rule 1 to Order IX of the CPC. In my considered opinion, relatives do not fall within the category of recognized agents to warrant representation or speaking on behalf of a party to a suit unless and until they are qualified so to do by special identification to the court to be regarded as such. Among such identification could be the power of attorney which is a commonly resorted to instrument in the circumstances like the one at hand. What then can be said of the information brought by the said Mr. Rweikiza? An answer to this needs an assessment of the veracity of the same so that justice is not only done but also seen to be done. In so doing, the oft quoted aphorism of Lord Hewart CJ in Rex. IZs Sussex Justices; Ex-parte McCarthy [1924] 1 KB 256 at 259, [1923] All ER 233 at 234] that justice should not only be done, but should manifestly and undoubtedly be seen to be done, would be put into real practice. It seems to me that much is left to be desired in the manner and veracity of the information supplied to the court by Mr. Rweikiza. I shall demonstrate. Firstly, there was nothing to demonstrate how our Mr. Rweikiza is, if at all, related to the defendant. Neither was there anything from the 4 defendant to introduce him as his representative. It was just his word. Secondly, the said Rweikiza could not be able to disclose what kind of ailment had befallen the defendant. Neither was he able to tell the court the name of the Hospital into which the defendant is purported to have been admitted. It must well be in the mind of the defendant, him being a businessman, that the court cannot deal with any unclear or disjointed information, let alone information for his not entering appearance. More so, the situation is exacerbated by the fact that the source of the said information is an oral correspondence brought by a stranger before the eyes of the law. If courts of law were to entertain such a practice, then, in my considered view, justice would be put at stake. And to argue this point a little bit further, the defendant cannot be heard to be ignorant of the requirements of the law regarding appearance of parties to a suit; firstly because, ignorance of law has long been declared and held to be not a defence, and secondly, it was his duty to ensure that the court is formally aware of his problems, if any, or at least his counterpart or his lawyer, as rightly submitted by Mr. Weiwei counsel for the plaintiff. I am alive to the constitutional principle enshrined under article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977 (henceforth "the Constitution") which requires dispensation of justice to 5 be not hindered by technicalities. These provisions provide in no uncertain terms that in the delivering decisions in matter of civil and criminal nature in accordance with the law, the courts shall, inter alia, observe the principle that justice is dispensed without being tied up with undue technical provisions, which may obstruct dispensation of justice. However, I find the non-appearance of the defendant coupled with the flaws in the information supplied to this court to be a blatant breach of his obligations which goes to the fundamentals of justice. In my view, the question at hand, is not a technicality envisaged by the provisions of the Constitution. All said and done, I find Mr. Weiwei's prayers to be meritorious. However, the prayers made in the plaint cannot go unscanned. They must be sieved with a view to seeing that they in compliance with the law. I start with general damages. The plaintiff has prayed for general damages under arm (iii) of his prayers. The same, I hasten to state, are bound to fail in that, however much the same are awarded at the discretion of the court, I find not material upon which to peg my discretion of assessment. I am alive to the position of the law founded upon prudence that general damages need not be specifically pleaded; they may be asked for by a mere statement or prayer of claim - see the Cooper Motor Corporation Ltd. K? Moshi/Arusha Occupational Health Services [1990] TLR 96. However, I still feel that in order to exercise the discretion on the quantum of general damages to be 6 awarded to the plaintiff in a default judgment, there should be some material upon which to peg the said quantum which material is wanting in the present instance. In these premises, the prayer for general damages fails. The second point is in respect of the commercial interest prayed. The plaintiff has pegged the same, as per arm (ii) of the prayers, at 31%. I find this to be on the high side. A commercial interest of 24% per month, in my considered view, fits the circumstances of this case. In the upshot, for the above reasons and in terms of Rule 31 (1) (b) and (c) of the Rules, I allow the prayers made by the counsel for the plaintiff and proceed to order and decree as follows: 1. The Written statement of defence of the defendant filed on the 03.11.2014 is hereby struck out; 2. Judgment is hereby entered for the plaintiff in the following terms a) The defendant shall pay the plaintiff a total of Tshs. 86,160,360.000; b) The defendant shall pay the plaintiff interest on the principal sum at commercial rate of 24% per month from 16.07.2013 to the date of this ruling; c) The defendant shall pay the plaintiff further interest on the decretal sum at court rate of 7% from the date of this judgment till final and full satisfaction; and 7 d) The defendant shall pay the plaintiff costs of this suit. Order accordingly. DATED at MWANZA this 16th day of April, 2015. J. C. M. MWAMBEGELE JUDGE 8