| dc.description | AIRTEL TANZANIA LIMITED VS. OSE POWER SOLUTIONS LIMITED
COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(LILA, KOROSSO, KENTE, JJ.A.)
CIVIL APPEAL NO. 206 OF 2017
(From the Decision of the High Court of Tanzania, Commercial Division at
Dar es Salaam) (Teemba. J.) dated the 14th day of July, 2017
in Civil Case No. 40 of 2012)
Civil Practice and Procedure-pleadings- amendment of the pleadings-whether original pleadings ceases to exist
Civil Practice and procedure-pleadings-documents not annexed in the plaint-whether can be relied upon by the party during the hearing
Civil Practice and procedure-Counter claim- failure to reply on the counter claim within time-whether judgment can be pronounced
Civil Practice and Procedure- Scheduling Order- expiration of speed track/life span of the case-whether the Court can reschedule the expired speed track
This is an appeal from the decision of the High Court of Tanzania Commercial Division in Civil Case No. 40 of 2012. A brief background to the case is that: Between 2009 and 2012, the respondent supplied the appellant with goods and rendered some services that included generators, spare parts, fuel, electrical installation in the Airtel towers, other electrical and general services of the towers and generators including supply of fuel and batteries to the sites. Thereafter the respondent raised an invoice requiring the Appellant to pay TZS 1,920,998,371.79 and USD 143,484.72 for costs of goods supplied and service rendered to the appellant. The appellant refused to pay contending that the payment was already effected. On 20/3/2012 the respondent filed a suit against the appellant through a plaint which later, with the leave of the court, was amended on 17/5/2013. When the original plaint was filed, it included annexures BLC 1-4. Upon lodging the amended plaint, new annexures to reflect additional claims were included. However, the annexures which had been part of the original plaint were not included. Nonetheless, the amended plaint alluded to adopting the annexures in the original plaint by referring to them in paragraph 5 of the amended plaint. On the part of the appellant (the defendant then) through written statement of defence (WSD) denied all the respondent's claims and filed a counter claim for a refund of TZS. 479,229,406.91 and USD 644312.50 alleging that they arose from overpayment for supply of 23 pieces of 20KVA generators. The trial court having heard the parties gave judgment in favour of the respondent which aggrieved the appellant, hence the current appeal.
Held
(i). It is a settled position that, upon filing amended plaint, the original plaint ceases to exist. The same applies when Written Statement of Defence is filed inferring the end of the original.
(ii) Suffice to say, Order VII Rule 14 of the CPC requires documents to be relied upon by parties to be attached in the pleadings to form part of the pleadings.
(iii). Upon failure to reply on the counterclaim within the time prescribed, judgment should be pronounced on the counterclaim.
(iv). The Court restated its holding in the case of National Bureau of Statistic vs. The National Bank of Commerce and Another, Civil Appeal No. 113 of 2018 (unreported) that “the spirit embraced in assigning a suit to a certain speed track is only to facilitate the expeditious disposal and management of the case. It is thus not expected that failure to adhere to a scheduled speed track will have consequences of having a suit struck out”
Appeal allowed
Statutory Provisions referred to:
1. Civil Procedure Code, Cap 33 RE 2002 Order VIIIA 3(3)(4), Order VIII rule 11 and VIII Rule 14(1)
2. Office of Attorney General (Discharge of Duties) Act, Cap 268 RE 2019 17(l)(a) and (2) (b)
Cases referred to:
1. John Lessa vs Zamcargo Limited and Another, Civil Appeal No. 61 of 1996 (unreported)
2. A.A.R Insurances (T.) Ltd vs Beatus Kisusi, Civil Appeal No. 67 of 2015 (unreported)
3. Tanga Hardware and Autoparts Ltd. and 6 Others 19 vs CRDB Bank Ltd, Civil Application No. 144 of 2005 (unreported),
4. Warner vs Sampson and Another [1959]1 Q.B. 297
5. Ashraf Akber Khan vs Ravji Govind Varsan (Unreported]
6. Morogoro Hunting Safaris Limited vs Halima Mohamed Mamuya, Civil Appeal No. 117 of 2011[Unreported]
7. General Manager, African Barrick Gold Mine Ltd. Vs. Chacha Kiguha and 5 Others, Civil Appeal No. 50 of 2017 [Unreported]
8. Sarbit Singh Bharya and Another vs NIC Bank Tanzania Ltd and Another, Civil Appeal No. 94 of 2017 (unreported).
Mr. Hangi Chang'a, Principal State Attorney, Mr. Stanley Kalokola, learned State Attorney and Dr. Alex Nguluma, learned Advocate for the appellant
Dr. Chacha Murungu, learned Advocate for the Respondent | en_US |
| dc.description.abstract | Held
(i). It is a settled position that, upon filing amended plaint, the original plaint ceases to exist. The same applies when Written Statement of Defence is filed inferring the end of the original.
(ii) Suffice to say, Order VII Rule 14 of the CPC requires documents to be relied upon by parties to be attached in the pleadings to form part of the pleadings.
(iii). Upon failure to reply on the counterclaim within the time prescribed, judgment should be pronounced on the counterclaim.
(iv). The Court restated its holding in the case of National Bureau of Statistic vs. The National Bank of Commerce and Another, Civil Appeal No. 113 of 2018 (unreported) that “the spirit embraced in assigning a suit to a certain speed track is only to facilitate the expeditious disposal and management of the case. It is thus not expected that failure to adhere to a scheduled speed track will have consequences of having a suit struck out” | en_US |
