JOE R.M. RUGARABAMU v TANZANIA TEA BLENDERS LTD 1990 TLR 24 (CA)

JOE R.M. RUGARABAMU v TANZANIA TEA BLENDERS LTD 1990 TLR 24 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Ramadhani JJA and Mfalila JJA

B 23 May, 1990

Flynote

Civil Practice and Procedure - Pleadings - Failure to file reply to counterclaim within

time - Judgment on the counterclaim.

-Headnote

C In a suit for reinstatement of employment, the respondent filed a written

statement of defence along with a counterclaim. The appellants failed to respond to

the counterclaim within time. Before the suit was heard on merit the respondent

applied for judgment to be entered on the counterclaim under Order VIII rule 11 and

rule 13 of the D Civil Procedure Code, 1966. The trial judge granted the application

and entered judgment on the counterclaim. On appeal against the judgment on the

counterclaim.

Held: (i) Failure to file reply to counterclaim within twenty one days contravened

order VIII rule 11 of the rules of E Civil Procedure;

(ii) since the reply was filed beyond the time limit of twenty one days and was

filed without leave of the High Court as required by order VIII rule 13 of the rules of

Civil Procedure, the trial judge acted well within the rules of F Civil Procedure to

pronounce judgement on the counterclaim.

Case Information

Appeal dismissed.

Kisusi, for appellant

G Maira, for appellant

[zJDz]Judgment

Makame, Ramadhani and Mfalila, JJ.A.: In the High Court at Dar es Salaam the

present appellant, Joe Rugarabamu, filed a suit against Tanzania Tea Blenders Ltd. the

present respondent, for reinstatement in his H employment as Chief Accountant.

The respondent filed a Written Statement of Defence along with a counterclaim. The

appellant failed to respond to the counterclaim and before the suit was heard on merit

Mr. Maira, learned advocate for the respondent, successfully applied for judgment to

be entered on the counterclaim The I appellant/plaintiff's appeal to this court is

against the aforesaid judgment.

1990 TLR p25

MAKAME JJA, RAMADHANI JJA and MFALILA JJA

Up to the time of the High Court judgment the appellant was being represented by

Mr. Rwechungura, a A Corporation Secretary for the Tanzania Investment Bank.

Mr. Maira successfully challenged Mr. Rwechungura's legal capacity to represent the

appellant in the matter so Mr. Rwechungura accordingly ceased to act for the

appellant. B

In this appeal, as in the Court below, the respondent's counsel is Mr. Maira. The

appellant's lawyer is now Mr. Kisusi, learned advocate.

The appellant's five point Memorandum centred on his complaint that judgment

should not have been entered by the C High Court because there was no proof as to

when exactly he received the counterclaim.

We use the High Court record as to dates and the chronology of events in examining

the appellant's contention. On the fourth mention date, 30th July 1988, the order was

that the Written Statement of Defence should be in by 12th August, 1988. The day

following that, 13th August, 1988, by consent the hearing was fixed for 18th October

1988. D We cannot see how the appellant could on the day have agreed to a hearing

date being fixed if he had not received the Written Statement of Defence. He must

have got it by then and Mr. Rwechungura conceded as much. We therefore do not

propose to spend more argument on this aspect of the matter. To plea as does Mr.

Kisusi, E that the appellant was after all not warned that there was a counterclaim

below the Written Statement of Defence was really to scrape the barrel. We have no

basis for assuming that when the appellant agreed to the hearing date he was

oblivious to the counterclaim. Mr. Rwechungura rightly made the concession that

Mr. Kisusi's valiant effort F to salvage the situation cannot succeed. The rules of Civil

Procedure were rightly brought into play. The Reply was filed on 17th October 1988,

well beyond the time limit of twenty one days for 13th August 1988. This clearly

contravened Order VIII rule 11; no leave of the High Court was obtained in

accordance with Rule 13; and so G Mtenga J. acted well within his powers under

Rule 14 to pronounce judgment on the counterclaim.

On that basis we are satisfied that the appeal has no merit and accordingly we dismiss

it with costs. H

Order accordingly.

1990 TLR p26

A