Puma Energy Tanzania Limited versus Spec – Check Enterprises; Commercial Case No 19 of 2014: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Commercial Court Rules – Witness Statement – failure to file witness statement – effect.
- Parties – Plaintiff changed name – no evidence given to prove change of name – effect.
- Contract
- Private of contract – only a person who is privy to a contract is obliged to perform.
- Evidence
- Annexure – whether annexure forms part of the record
- Submissions -whether they amount to evidence
- Witness statement – whether a witness can adduce oral evidence through examination in- chief in additional to witness statement.
Held:-
(i)Failure to file a witness statement is tantamount to failure to prosecute or defend one’s case. This is legally and logically so because it is through the witness statements that material evidence by way of examination –in-chief is introduced in the Commercial Court. Where none is procured, it cannot be said that the case has been proved.
(ii) When the defendant fails to file witness statement, the plaintiff shall proceed ex parte for the defendant denies himself audience by failure to bring witness in the prescribed time.
(iii) Under the principle to privity to contract, it is only parties who are privy to the contract that are obliged to perform the same. Hence, any person who is not expressly party thereto cannot legally be forced to perform such a contract and neither can he/she demand performance from the other party.
(iv) In terms of the Commercial Court Rules, testimony in-chief is made and filed in court before the hearing. Thus, a witness is only procured in court for the purpose of cross – examination and re-examination if any. Practice has it that before such cross – examination, a party will be given a chance to introduce in evidence the exhibits referred in the said statement. In that line any statement made in that respect will be taken as part of the testimony only to the extent that explains the particular exhibit and not material alternative by way of additional or subtraction to the written witness statement.
(v) It is settled law in this jurisdiction that annexure, unless admitted in evidence, are not part of evidence. A mere attachment of annexure to the pleadings does not make the same evidence to prove what is pleaded and which it purports to support. (Cited Japan International Corporation Agency (JICA) v. Khaki Complex Limited, Civil Appeal No 107 of 2004 (CAT) (Unreported).
(vi) It is settled law in this jurisdiction to that submissions or unsupported evidence from the bar are not evidence (Cited Morandi Rutakyamirwa v. Retro Joseph (1990) TLR 49 (CA)
(vii) If a party to the suit has changed name, evidence to that effect must be produced. In the absence of evidence, the suit may be dismissed as the parties would be strangers to the proceedings.