IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
CIVIL CASE NO. 187 OF 2019
FAIR DEAL AUTO PVT LIMITED...................................... PLAINTIFF
VERSUS
CITY BOYS ELECTRONICS CO. LIMITED.......................... DEFENDANT
RULING
MRUMA.J
Prayer for adjournment is rejected. On 12.5.2022 this court made an
order in terms of rule 2(1) of Order XVIII of the Civil Procedure Code
(Amendment of First schedules) Rules of 2021 that in this case evidence
in chief shall be given by way of witness statement and the Plaintiff were
ordered to file their witness statements at least seven (7) days before the
hearing date. To date, a period of over 21 days no witness statement has
been filed and reason given is that the Managing directors of the Plaintiff's
Company have left the country and now they are living in India An
adjournment is being sought on the ground it is not known when they will
be available. This is a strange reason. Court cannot conduct its business
i
its business at the whimsy of the parties. The Civil Procedure Code
(Amendment of the First Schedule) Rules, 2021 which are made under
GN NO.761 of 2021 do not provide for consequences of failure to file
witness statements. However it is trite law that failure to file witness
statement is tantamount to failure to prosecute one's case and under Rule
21(a) of Order VIII of the Civil Procedure Code as amended by GN No.
381 of 2019, when a Plaintiff fails to comply with any direction of the
court, court may dismiss the suit. In this case the Plaintiff have failed to
file their witness statement (s) which is equivalent to failure to call witness
for prosecuting a case, Given the fact that this is a backlog case, and the
fact that it is in certain as to when the Plaintiff's witness may come back
to Tanzania and therefore became available to prosecute the case this
court finds that the discretion prescribed under Rule 21(a) of order VIII
of the Civil Procedure Code can be Judiciously exercised by dismissing the
Plaintiff's case.
As regards, witness statements of the Defendants, the law under
Rule 3(2) of Order XVIII of the Civil Procedure Code that witness
statements of the Defendant are filed within 14 days after the closure of
the Plaintiff's case. Thus the statements filed before the closure fo the
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Plaintiffs case mere prematurely by filed and are hereby expunged from
the records.
That said, the Plaintiff cause is dismissed for failure to be
prosecuted. The Defendant will have their costs.
Order accordingly.
A.R. Mruma
Judge
2/6/2022
