universal mccann t ltd vs stanbic bank t ltd 2005 tzhccomd 16 20 june 2005

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM UNIVERSAL McCann TANZANIA LIMITED PLAINTIFF VERSUS STANBIC BANK TANZANIA LIMITED DEFENDANT Mr. Duncan, Advocate, for the Plaintiff and Mr. Ngallo, Advocate, for the Third Party, vehemently object to Mr. Kabakama (Advocate for Defendants)' prayer for an adjournment to enable his clients procure the last defence witness allegedly currently in Senegal. Mr. Duncan and Mr. Ngallo insist that this is the fourth time adjournment is being sought on same reasons; that however, this matter which started in 2002 has to come to an end, having burst the scheduled speed track which ended on 14/6/2005 and that it has not been shown what evidence is intended to be fronted and how it would affect/prejudice the Defendants' case in the event it is omitted. They referred to Abdala Habib vs Harban Sing Rajput [1960] EA 326 and 0.17, Rule 3 CPC. Mr. Kabakama had nothing more to add than insisting that the witness is in Senegal. Indeed, this matter was filed on 29/12/2003 (though closer it is not 2002 as alleged). On 14/6/2004 mediation failed and it was re - assigned to me. On 13/7/2004 issues were framed and hearing dates fixed. Hearing commenced on 9/9/2004 as scheduled. The Plaintiffs closed their case on 26/1/2005, having fronted 5 witnesses. The Defence commenced its case on 3/3/2005 with one witness. At the end of that testimony Mr. Kabakama stated, "My witness has travelled on a business trip to Senegal. I pray for another date. " The matter was by consent fixed for continuation of hearing on 30/3/2005. On that date, Mr. Kabakama is again on record saying, "The witness is outside the country. He is expected back soon. I pray for adjournment. " Again, by consent hearing was rescheduled to 13/4/2005. On that date I was indisposed and my sister, Justice Kimaro adjourned the matter on my behalf to 5/5/2005. The obvious however is that even if I had been present the matter could not have proceeded as Mr. Kabakama had no witness. Instead, seemingly dramatically he prayed, "We pray for issuance of summons to Mr. Chris Obudo of Dar es Salaam. The Defendants undertake to serve the summons." On 5/5/2005, Mr. Kabakama repeated same song, "The last witness is still outside the country. He is expected back this month. " Mr. Duncan strongly objected to the prayer but the Court over - ruled him and granted one more adjournment to 31/5/2005. By the said date I had been transferred to the Dar es Salaam Zone Registry and got tied up there and arrived late at the Commercial Court premises and fixed hearing on 7/6/2005 which date also got me still netted in the new office re - arrangements and Counsel by a joint memo. proposed hearing to be rescheduled to 17/6/2005. Today, Mr. Kabakama having reiterated his usual song III the following wording, "My clients are making final attempts to get the last witness, D W2, who has travelled to Senegal. I pray for adjournment", the objections, subject of the present ruling were sparked on. Although Mr. Duncan and Mr. Ngallo referred to O. 17, Rule 3 CPC, with respect, the relevant rule is 4 though wrongly again labeled 5 following amendment of the Order vide GN 508 of 1991. The said Rule 6 provides: - "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. " Travelling through the history of prayers for adjournment by Mr. Kabakama (as exemplified above) so that the alleged last witness be procured clearly paints Mr. Duncan's and Ngallo's complaints as being fully justified. I sympathise with Mr. Kabakama because as a Counsel he has to submit factual materials including witnesses supplied by clients, but in the present situation he has not bothered to sufficiently explain whether the said witness has ever been contacted and if so, how and when; what is his reaction regarding his expected return to the country (if indeed he is in Senegal as alleged) and the cause behind all these constant failures to surface. I do appreciate that in the interest of justice, a party should be afforded every opportunity to prosecute his case including providing for delays where witnesses are beyond the territorial borders, as alleged in this case, but such party must convincingly supply sufficient grounds/reasons why such witness, for example, cannot be procured in time. A general, branketed statement as those fronted by Mr. Kabakama are not legally acceptable. I must say that the Court has exercised over indulgence in allowing his numerous prayers for adjournment. I am on all fours with Mr. Duncan and Mr. Ngallo that the situation has now reached a point where O. 17 CPC as quoted should come into play. The above disposes the matter and I find no reason of labouring with the other leg of objection that further adjournment would continue to violate the scheduled order in terms of fixed speed track. The application for further adjournment to afford Defendants one more chance allegedly to enable them procure a witness said to be in Senegal is hereby refused. L.B. KALEGEY A JUDGE Delivered in the presence of Mr. Kabakama, Mr. Duncan and absence of Mr. Ngallo. L.B. KALEGEYA JUDGE Mr. Kabakama: I am holding Mr. Ngallo's brief. L.B. Kalegeya Judge Mr. Kabakama: I pray to close the Defendant's case. L.B. Kalegeya Judge Mr. Kabakama: I have instructions from Mr. Ngallo that he is not bringing any witness. We are agreed that final submissions be in writing. L.B. Kalegeya Judge Order: Final submissions in the following order: - - Defendants and Third Party by 15/7/2005. - Plaintiff by 1st August. - Judgment on 22/8/2005. L.B. KALEGEY A JUDGE 20/6/2005