COMMERCIAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 16092 OF 2024 YASSIR MURAD Said (As Attorney of Al Naaman) SEIF KHALID ABDULLAH……………………………...………………PLAINTIFF VERSUS PAMOJA MINING COMPANY………..……………………………1ST DEFENDANT ALLY MOHAMED UMMY……………………………..……………2ND DEFENDANT DEFAULT JUDGMENT Date of last order: 13/02/2025 Date of Ruling: 28/03/2025 HON. GONZI, J. The plaintiff instituted this suit praying for Judgment and decree of the Court against the defendant for reliefs as follows: 1. That the Honourable Court be pleased to order the Defendant to pay specific damages of 145,695,000/= being principal amount; 1 2. General damages to be assessed by the Honourable Court but not less than Tshs. 50,000,000/=; 3. That the Honourable Court be pleased to order the defendant to pay commercial bank interest at the rate 20% annum from the date of taken money up to the date of judgment; 4. That the Honourable Court be pleased to order the defendant to pay interest on the decretal amount at the rate of 12% annual; 5. Costs of the suit; 6. Any other/ further relief(s) this Honourable Court deem fit and just to grant. The Plaintiff’s case is basically for the claim against the defendant of TZS. 145,695,000/= for the outstanding debt in respect of non-supply of gold in accordance with their Contract. After the contract was entered into, the Defendant promised to supply gold to the Plaintiff. However, sometimes in July 2023 the Defendant defaulted even after being served with a demand letter by the Plaintiff. Thus, the Plaintiff resorted to this Court for redress. 2 The Plaintiff enjoyed the service of Mr. Robert Oteyo, Learned Advocate and the Defendant enjoyed the service of Mr. Mukhtar Cheche, Learned Advocate. On 16/10/2024 when the matter was scheduled for necessary orders, Mr. Cheche Learned Advocate, promised before this Honourable Court to file the Defendant’s Written Statement of Defence (WSD) within a week before the expiry of the statutory 21 days. On 13/02/2025 when the matter was scheduled for necessary orders, the Defendant had defaulted to file the WSD. The Plaintiff prayed to make an application for Default Judgment due to the fact that the Defendant had failed to file his WSD. The prayer was granted and the Plaintiff filed an Application for Default Judgment in this Court by filing only Form No.1. No supporting affidavit in proof of the claim was filed. The said Form No.1 filed by the Plaintiff contained the prayers only as contained in the Plaint. The application for default judgment was made under Rule 22(1) of the Commercial Court Rule GN 250/2012 amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019. The provision provides that: 3 “(1) Where any party required to file written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub-rule (2) of rule 20 within the period of such extension, the Court may, upon proof of service and on application by the plaintiff in Form No. 1 set out in the Schedule to these Rules accompanied by an affidavit in proof of the claim; enter judgment in favour of the plaintiff.” It is clear that when the Plaintiff seeks default Judgment in the Commercial Court, an affidavit supporting the application for default Judgment must be filed in proof of the claim in addition to the Form No.1. That is to say despite the default by the Defendants to enter their defence to the claims brought against them by the Plaintiff, under Rule 22(1) of the Commercial Court Rules, the Plaintiff is still required to prove by way of an affidavit, all his claims against the Defendant. “Proof of claims” presupposes that the Plaintiff should bring evidence through the “affidavit in proof of the claim” for the Plaintiff to substantiate his claims contained in the Plaint. The evidence supporting and forming the basis of the default judgment stems 4 from the affidavit in proof of the claim. An affidavit is a substitute for oral evidence or rather, it is oral evidence in a written form. The use of affidavits to tender evidence in Courts is, inter alia, governed by Order XIX Rule 1 of the Civil Procedure Code CAP 33 of the Laws of Tanzania which provides that: “A Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable.” The law on affidavits was set out in the case of Uganda v. Commissioner of Prisons, Ex parte Matovu (1966) E.A.514 at page 520. The principle in that case was accepted by the Court of Appeal of Tanzania in the case of PHANTOM MODERN TRANSPORT (1985) LTD and D.T. DOBIE (TANZANIA) LTD and in several other cases. In Uganda vs Commissioner of Prisons, Exparte Matovu case (supra), the rule on the making and use of affidavits for use in Court was stated that: “…as a general rule of practice and procedure, an affidavit, for use in Court, being a substitute for oral evidence, should only contain statements of 5 facts to which the witness deposes either of his own personal knowledge or from information he believes to be true.” (underlining added for emphasis). It is plain, therefore, that an affidavit for use in Court is a substitute for oral evidence. Thus, where the Plaintiff files an affidavit in proof of the claim under Rule 22(1) of the Commercial Court Rules GN No.250 of 2012, he should assume that he is testifying before the Court proving his claims in the plaint. In other words, all the evidence that would have been necessary for the Plaintiff to give in order to establish his entitlement to the claims and their quantum as claimed in the Plaint, should be reduced into writing under oath in the form of an affidavit in proof of the claim. Where the Plaintiff had annexed copies of documents to the Plaint, he is required to produce or tender the same by annexing them to the affidavit in proof of the claim as Exhibits. In the Commercial Court, the Plaintiff seeking default Judgment must prove his claim by way of an affidavit in proof of the claim. The Plaintiff is not automatically entitled to a Default Judgment under Rule 22(1) of the Commercial Court Rules in his favour due the Defendant’s default to file a WSD. The Plaintiff must make an application for default Judgment through 6 Form No.1 and, moreover, he must also prove his claims though an affidavit in proof of the claim. In the case there is no affidavit at all filed for the purposes of proving the claim by detailing how the Defendant incurred the alleged liability towards the Plaintiff for which the suit was brought. Whereas the law requires specific damages to be specifically pleaded and strictly proved, in the case at hand, despite claiming specific damages for breach of contract, there is no proof whatsoever by the Plaintiff as to the basis and quantum of the special damages. In absence of affidavit in proof of the claims in this case, actually the Plaintiff has not event stated under oath why the Plaintiff is claiming the several reliefs against the Defendants. The Court in granting the Plaintiff permission to file Form No.1 and an affidavit in proof of the claim, had already satisfied itself that there was no written statement of defence by the Defendant in this case and it was only in that regard that the Plaintiff was allowed to prove his case by way of an affidavit in proof of the claim under Rule 22(1) of the Commercial Court Rules. 7 Rule 22(1) of the Commercial Court Rules does not guarantee that a Plaintiff who presents an application for Default Judgment, where there is no Written Statement of Defence by the other side to the case, must obtain a Judgment and Decree in his favour without proving his claims. A default Judgment under Rule 22(1) of the Commercial Court Rules, is not a judgment on admission as such. I must emphasize that the word “may” which is used under 22(1) of the Commercial Court Rules signifies the discretionary powers of the Court which should be exercised judiciously. An affidavit in proof of the claim was therefore mandatory to be filed so as to enable the Court make analysis and draw inferences and conclusions. The affidavit in proof of the claim was supposed to contain evidence proving the claims contained in the plaint. Perhaps, the Plaintiff misconceived the status of the allegations and statements contained in the Plaint as being evidence and thereby took it for granted that the Court would pick the details from the Plaint and treat the same as the evidence in composing the Default Judgment. In law, pleadings do not constitute nor contain evidence. That is the rule under Order VI Rule 3 of the Civil Procedure Code, CAP 33. The Plaintiff could not, therefore, rely 8 on the facts, explanation and allegations contained in the plaint as the evidence proving the claim in this suit pursuant to the requirements of Rule 22(1) of the Commercial Court Rules. Evidence was specifically needed so as to prove the averments and allegations contained in the Plaintiff’s pleadings. For this case, under Rule 22(1) of the Commercial Court Rules, evidence was required to be adduced in the form of an affidavit in proof of the claim. No such evidence exists at all as no such affidavit was filed alongside the Form No.1 which is the application for default Judgment. All in all, I find that despite the case continuing un-opposed due to the Defendant’s failure to file WSD, the Plaintiff has utterly failed to prove his claims in this case by failing to file an affidavit in proof of claim as required by Rule 22(1) of the Commercial Court Rules GN No. 250/2012 as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019. The suit is, therefore, hereby dismissed for lack of merit. As the suit proceeded without the involvement of the other side, I make no order as to costs. It is so ordered. 9 A. H. GONZI JUDGE 27/03/2025 Default Judgment is delivered in Court this 27th day of March 2025 in the presence of Mr. Robert Oteyo, Advocate for the Plaintiff and in absence of the Defendants who were duly Notified. A. H. GONZI JUDGE 27/03/2025 10