Written Statement of Defence in Tanzania

 

WRITTEN STATEMENT OF DEFENCE

Written Statement of Defense is a pleading presented by the defendant intended to traverse the allegations written on the plaint.

Two occasions under which the defendant may present the WSD

Once the defendant has been given a summons to appear he does not have the need to do anything and he cannot be penalized for not filing WSD. 

Under order VIII rule 1 a defendant summoned to appear may file a WSDto shorten the time of litigation.

When a summons to file WSD has been issued the defendant is required to file the WSD on or before the date indicated. 

The day of filing WSD is the day of hearing and not the day of mention. However the court has power to extend the period of filing WSD.

Contents of WSD

Order VIII rule 2. WSD should contain all facts which will show that the plaintiff’s suit is not maintainable. These may be questions of fact eg failure of consideration or questions of law. Eg res judicata, limitation, illegality etc.

General rule

Each and every allegation in the plaint has got to be traversed/opposed.

Allegations denied or admitted must be specifically stated in the WSD.

Each paragraph of the plaint should be denied separately. Several words are used in traversing e.g. para (i) and (ii) are admitted. They are normally the addresses. You cannot deny the defendant’s address but yours. Eg incases where you are not using the address of the advocate.

Para (iii) is denied. Even if there was a contract, which is denied, there was a failure of consideration.

Para (iv) is denied. Even if there was a contract and consideration, which is denied, the defendant asserts that the contractual amounts were paid. 

NB The technique of confession and avoidance is used in writing the WSD in which the defendant admitst existence of some facts but at the same time avoids the legal consequences of the existence of those facts.

Eg X admits the existence of a contract but there were no vegetables, which is denied, the defendant asserts that the vegetables were rotten and therefore unfit for human consumption. Under Order VII rule 3 general denials are bad in law.

(x) Save as hereunder expressly admitted the defendant denies each and every facts contained in the plaint as if the same were set fort seriatim and specifically traversed D paragraph help against the presumption that whatever is not specifically and denied is admitted.

Note: Although as a general rule a general denial is not admissible, it is acceptable where there has been already specific denial. Where there is not specific denial, a general denial is inadmissible, and the defendant will be taken to have admitted the rest.

Refer Warner V. Sampson [1959] All ER 120 at 123 per Denning; LJ

“It is used [general denial] in nearly every defence that goes out from the temple [inns of court where barristers operate from, in England] it comes at the end the pleader has – early gone through……in the statement of claim and dealt with them. Some he has admitted, others he has denied. Whenever knows there is a serious contest he takes no instructions on a particular allegation he covers it by a general denial of this kind so that he can, if need be, put the plaintiff

In this cross-suit the defendant will be required to present a WSD into sections:

The Defence.   2. A statement of claim against the plaintiff.

Although the plaintiff may not exercise his right to reply he is duty bound to present a WSD to the counter-claim.

Rule 12 provides – where a defendant has set up a counter-claim the court may order separate trials when it is in the opinion of the court that the plaintiff’s claim and the defendant’s counter-claim cannot be heard simultaneously.

Note: In counter-claim it is mandatory that the plaintiff should file his reply.

In Set-Off the plaintiff has an option of replying or not. 

When is a Suit Ready for Hearing?

This will depend on the case.

When there is no counter-claim or set-off the pleadings are closed and the suit is deemed ready for hearing once the plaintiff files a reply to the WSD.

When there is a set-off or counter-claim and the plaintiff has in his reply raised a defence to such a set-off or counter-claim pleadings will be deemed to be closed and the suit ready for hearing after the defendant has filed his reply to the reply.

Where he has already replied, rule 13 provides that, no further pleading can be presented to the court subsequent to the reply of the WSD other than a defence to set-off or counter-claim without the leave of the court. 

Consequences of Failure to present a WSD or a Defence to Counter-claim

There are different consequences depending on different things:

The court  may pronounce judgment against the person who was supposed to present the defence. In a case where the Summons was for appearing and he has been given an order for appearing.

Where the summons was to file a WSD there are 2 consequences:

Where the claim is for a liquidated amount of money which does not exceed T.Sh.1,000/= the plaintiff may make an application to the court in writing for leave to prove his case ex-parte by affidavit or by oral evidence.

Where the amount exceeds 1,000/= and in any other case the court may pronounce judgment after ex-parte proof.

General Defences  available in drafting a WSD

1. Accord & Satisfaction – in law of contract.

2. Acquiescence.

3. Conditions Precedent.

4. Custom and Usage.

5. Capacity.

6. Estoppel

7. Fraud

8. Illegality

9. Jurisdiction

10. Limitation

11. Laches [lashes] i.e. equitable limitation.

12. Misjoinder – of parties & of causes of action.

13. Non-joinder of parties & causes of action

14. Mistake

15. Notice –insuffiency of Notice

16. Payment

17. Penalty as opposed to damages

Defence under protest

18. Release

19. Rescission

20. Remoteness of Damages

21. Res Judicata

22. Res Sub judice

23. Set-Off

24. Tender

25. Undue Influence

26. Duress

27. Lack of Special Damages

28. Waiver

29. Want of Cause of Action.

NON-APPEARANCE

Read the provisions of Order IX, the case of EAP &BTV. Terrazo, and Orders III and V.

The consequences of non-appearance of a party differ depending on who does not appear.

Non-Appearance of the Defendant

When summons was not served and failure to serve the summons was due to mistake of the plaintiff either as a result of failing to pay court fees or his failure to pay postal charges the suit is to be dismissed. This is because there cannot be a suit without parties.

Order IX Rule 2 – The court has power to dismiss the suit on the first day of hearing. If by coincidence the defendant is in court the court will not dismiss the suit.

Where neither the plaintiff nor the defendant is in court the court will dismiss the case. Order IX Rule 3.

The summons is returned unserved and the defendant does not appear, it is the duty of the plaintiff to apply for re-service. This application has to be made within 3 months. If not within this period, the court will dismiss the suit per Order IX Rule 5.

Exceptions

A suit may not be dismissed under rule 5 where the plaintiff shows the court that the defendant in proof of it at the trial, sometimes the pleader denies, sometimes he does not admit each and every allegation but whatever phrase is used it all comes back to the same thing. The allegation has to be regarded as if were specifically set out and traversed seriatim. In other words it is traversed no more no less. The effect of the traverse has been known to generations of pleaders. It casts upon the plaintiff the burden of proving the allegations denied. So this general denial does no more than put the plaintiff into proof.”