Qn:
The plaintiff, a limited liability company is a prosperous manufacturer of cooking oil in East African Region. It has sued your client, a natural person, in the High Court of Tanzania (commercial Division) for unpaid portion of the purchase price of cooking oil. What course or courses of action will you take on behalf of the defendant before the hearing in a following alternative?
- The registered office of the Plaintiff Company is located in Nairobi, Kenya.
- The plaintiff has not, to date, filed reply to the defendant’s counterclaim.
- The defendant dies before the date of hearing.
OUTLINE
1.0 INTRODUCTION
2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT
A. THE REGISTERED OFFICE OF THE PLAINTIFF COMPANY IS LOCATED IN NAIROBI, KENYA
B. THE PLAINTIFF DOES NOT FILE THE REPLY TO THE DEFENDANT’S COUNTERCLAIM
C. DEFENDANT DIES BEFORE THE DATE OF HEARING
3.0 CONCLUSION
4.0 REFERENCES
- INTRODUCTION
The hearing of the parties can be effectively done when the pleadings are complete. It is from the pleadings that the court will frame the issues, and it is from the issues that the court may hear the parties and make decision basing on evidence presented before the it. Pleading is a matter, which normally occupies the attention of the parties to the suit in the early stages. O. VI, r. 1 of the Civil Procedure Code (hereinafter to be referred as the CPC) defines pleading as the plaint, written statement of defense and the reply to the written statement of defense and any other documents which is submitted to the Court in the process of preparing the suit. Pleading is a legal term consisting of documents and art of drafting such documents. Pleadings are not evidence but mere allegations, which will have to be supported by evidence.
The facts of the questions are as follows “the plaintiff, a limited liability company is prosperous manufacturer in East Africa Region. It has sued your client, a natural person, in high court of Tanzania (commercial Division) for unpaid portion of the purchase price of cooking oil.”
We have been asked as to what cause of action we will take on behalf of the defendant before the hearing in the following alternative situations?
a. The register office of the plaintiff company is located in Nairobi Kenya
b. The plaintiff has not, to date, filed reply to the defendant’s counter claim
c. The defendant dies before the date of hearing.
Part two of this work discusses the cause of action in the above-mentioned alternative situations, part three is the conclusion and part four is bibliography.
- CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT
2.1 The Registered Office of the Plaintiff Company is located in Nairobi, Kenya
Since the registered office of the Plaintiff Company is outside Tanzania, he will be required to pay the security for costs. According to O.XXV r, 1(1) of the CPC If the plaintiff is residing outside Tanzania and that such plaintiff does not posses any sufficient movable property within Tanzania other than the property in the suit, the court may, either on its own motion or on the application of the defendant, order the plaintiff within a time to be fixed by the court, to give sufficient security for payment of all costs incurred and likely to be incurred in the suit by the defendant. The case of Farrab Incorporated .v. Brian J Robson and others[1] reiterates this principle, where the defendant to the suit filed in Kenya made an application for security for costs on the ground that the plaintiff was a corporation registered and having place of business at Moshi, Tanganyika. The court granted the application.
2.2 The Plaintiff has not filed reply to the Defendant’s Counter Claim.
In this situation we urge the court to pronounce the judgement in favour of plaintiff upon such proof of the claim as per O VIII r 14 of the CPC. The law requires that where any party has been required to present a written statement under sub rule 1of rule 1 or a reply under rule 11 fails to present the same within twenty one days, the Court shall pronounce judgement against him or make such order in relation to the suit or counter claim, as the case may be, as it thinks fit. It is worthnoting that counter claim is taken as a plaint against the plaintiff and the plaintiff is required to reply in terms of O. VIII r, 11. In the case of Joe Rugarabamu .v. Tanzania Tea Blenders[2], 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 held on merit the respondent applied for judgement to be entered on the counterclaim under O. VIII r, 11 and r, 13 of the CPC. The trial judge granted the application and entered judgement on the counterclaim. On appeal against the judgement on the counterclaim the court held that “failure to file a reply to counterclaim within twenty one days contravened O. VIII r, 11 of the rules of CPC”.
2.3 The defendant dies before the date of hearing
In this situation we will apply to the court to have the legal representative of the deceased defendant joined to the suit. According to O. XXII r, 4(1) of the CPC, if a defendant dies and the right to sue survives against him the court on an application made on that behalf will cause the legal representative of the deceased defendant to be made a party to the suit and will then proceed with it.
- CONCLUSION
With regards to the above discussed circumstances, we conclude that the courses of action to be taken in the first instance is for the defendant to apply for the plaintiff to pay security of costs equivalent to the costs incurred or likely to be incurred. In the second situation where the plaintiff fails to reply to the defendant’s counter claim, the judgement will be entered in favour of the defendant. Where the defendant dies before the date of hearing the law provides for the rights to be represented.
REFERENCES
1. Civil procedure code cap 33
Citations
[1] (1957) E.A 441
[2] [1990] TLR 24
