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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION
AT PAR ES SALAAM
MISCELLANEOUS COMMERCIAL CAUSE NO. 159 OF 2023
{Arising from Commercial Case No. 7 o f 2023}

MOHAMMADI WOODWORKS LIMITED......................................... APPLICANT

VERSUS
HONEST LOGISTICS LIMITED......................................................RESPONDENT

RULING

March & 22nd, 2024

Morris, J

Pleadings are legal mouthpieces of litigants in civil suits. They speak

to the Court about parties' disputes. Evidences prove assertions in such

pleadings. Unless pleadings are in their proper squares, evidences stand to

do less in aligning the litigants' claims to the desired just-end. In this

application, leave of the Court is pursued for the applicant to file a counter­

claim subsequent to his filing a written statement of defence. Supporting it,

is the affidavit affirmed by Mustafa Aunali Zavery. However, the application

is contested. Shamsudin Panjwani has a counter affidavit lodged on behalf

of the opposing respondent above.

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The background of this matter involves Commercial Case No.7 of

2023. The case was filed by the respondent against the applicant and two

other individuals. The defendants filed a joint written statement of defence

(WSD) which contained the applicant's counter claim (C-C) against the

respondent-plaintiff. However, the C-C was on October 6th , 2023 struck out

for want of competence. The resolute applicant wants his C-C relodged.

However, he considers that such step cannot sail to fruition without leave

of the Court. Hence, this application.

During hearing of this matter, both parties were represented.

Advocate Yohana Julius Ayall represented the applicant. The respondent had

services of Ms. Lilian Kihiyo and Mr. Gilbert Mushi, learned Advocates. Both

parties prayed to adopt respective affidavits as part of their submissions. In

addition, the applicant's counsel prayed to include in his submissions the

skeleton arguments filed earlier in this court.

To kick-start, the applicant submitted that the present application was

filed in order to promote prudence, logic and avoid his C-C being res-

su b ju d icew res-judicata. To him, the envisaged C-C will assist the parties

opposite rights to be heard and determined simultaneously. Citing Order

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VIII Rule 13 of the Civil Procedure Code, Cap.33 R.E.2019 {the CPC)-,

the applicant's counsel argued that the C-C sought to be filed can only be

filed if leave is granted by the Court. To him, pleadings subsequent to the

filing of WSD should be filed after obtaining the court's leave.

Ms. Kihiyo and Mr. Mushi did not support the application. To them,

both the CPC and the High Court (Commercial Division) Procedure

Rules, 2012 (elsewhere, "the Ruled') do not legislate for any application

of this nature. That is, insomuch as, it is not statutorily predicated; the now-

being-pursued leave is unjustifiable in law. They also submitted that the

provisions relied on by the applicant (Order VIII Rules 9 and 13 of the CPC)-,

provide that, a C-C should be included in the WSD; and that no leave is

required howsoever.

Further, according to both advocates, the right remedies for the

applicant are to pray for amendment of the WSD to include the C-C therein;

or file a fresh suit and seek for consolidation of the two suits at a later stage,

where necessary. Finally, the respondents prayed for dismissal of the

application with costs.

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In rejoinder, Mr. Aya 11 reiterated that the present matter is the most

appropriate one. He maintained that it is not compulsory for the defendant

to include the C-C in his WSD. However, to him, if it has to be filed separately

especially after the filing of WSD, the C-C must be subject to court's leave.

For further persuasion, reference was made to the case of ShriAmbaram

Shri Laxman J i and Another v Shri Jaduiai Shri Rataniai J i

Choudharyand6 Others, Civil Rev. No. 98 of 2021 (High Court of Madhya

Pradesh at Indore), para 10 (unreported).

Moreover, to him, since the C-C in the WSD was struck out for being

incompetent; the applicant cannot apply for amendment per Order VII of

the CPC. He also was not in favour of the completely new suit as proposed

by the opponents because such case would face the doctrine of res-subjudice

or res-judicata to Commercial case No. 7 of 2023 already pending in this

court. He resonated the prayers in the application.

Before I embark on determining this application, to which I set the

Court to answer the issue whether the prayers in the application in tenable;

I will analyze a couple of aspects regarding the C-C. Firstly, in civil

proceedings, the C-C is one the defendant's rights. He earns it by virtue of

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being sued by a person against whom he also alleges to have a claim and/or

a cause of action. According to Order VIII Rule 9 (1) of the CPC, such cause

of action must be due to the defendant prior to the filing of his defence

against the suit for which he is sued.

Secondly, when it is raised by the defendant, the C-C technically

turns to be a cross suit. That is, the parties now swap positions in that

respect. The plaintiff in the main suit assumes the position of the defendant

in so far as the C-C (cross suit) is concerned in line with Order VIII Rule 9

(1) of the CPC Correspondingly, the effect of each party's pleadings in the

C-C become inverse. Hereof, I place reliance on the cases of John Lessa v

Zamcargo Lim ited a n d Another, Civil Appeal No. 61 of 1996; A irtel

Tanzania Lim ited v Ose Pow er Solutions Limited, Civil Appeal No. 206

of 2017 (both unreported); and Joe R M Rugarabamu v Tanzania Tea

Blenders Lim ited (1990) T.L.R. 24.

Thirdly, despite its automatic cross-suit-status, the court has the

discretion to dictate the mode of its determination. There are two major

modes in this regard. One, the court may proceed with determination of

both primary and cross suits conjunctively ^Runway (T) Lim ited v WIA
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Company Lim ited a n d Cascade Company Limited, Civil Appeal No 59

of 2015; and Director M oshi Municipal Council v John Ambrose

Mwase, Civ. Appeal No. 245 of 2017 (both unreported)]. Two, if in its

assessment, the court finds it expedient for the cross suit (C-C) to be

disposed of separately; the order to such or other effect will be entered.

This approach may involve striking out the C-C, as the case may be (Order

VIII Rule 12 of the CPC).

With the foregoing types of approach at the background, therefore, it

is apparent that the C-C cannot be simply or outrightly ignored by the court.

Doing so would amount to playing double standard; or to treat parties

unequally before the law, contrary to the Constitution o f the United

Republic o f Tanzania, Cap. 2 R.E. 2019; and/or denying one party the

right of being heard at the expense of favoring the opposite party. Either

way, it is unlawful. In Runway (T) Lim ited v WIA Com pany Limited

(supra) XX.was laid a firm legal principle that;

'W e are, however, o f the considered view that even i f the

respondents m ight have failed to adduce evidence to prove the
counter claim, that d id n ot relieve the trial court from the duty
o f making a decision thereon."
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Fourthly, working form the basis that the C-C is the defendant's

automatic right, another equally import aspect is the time or stage of the

civil litigation at which it can be raised. This enquiry invites the reading and

evaluation of Order V III Rule 13 of th e CPC. Below, I quote the whole rule

in the interest o f ease of comprehension. I t provides, thus;

"No pleading subsequent to th e w ritte n s ta te m e n t o f a

d e fe n d a n t other than b y way o f defence to a s e t-o ff o r
counterclaim shall be presented e xc ep t b y th e leave o f th e
c o u rt and upon such term s as the court thinks fit, b u t the court
m ay a t a p re -tria l conference require a written statem ent o r
additional written statem ent from any o f the parties and fix a
time fo r presenting the same:
Provided that, where a defendant has presented a written
statem ent o f defence in accordance with a summons to file a
defence the p la in tiff may, w ithout obtaining leave o f the court,
present a re p ly to th e w ritte n s ta te m e n t o f defence within
seven days a fte r the written statem ent o f defence or, where
there are tw o o r more defendants, the last o f the written
statements o f defence, shall have been served upon him in
accordance with the provisions o f rule 2 o f Order VI (bolding
rendered for emphasis)."
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From the foregoing excerpt of the Code, the general rule is that filing

of pleadings after the defendant has presented his WSD is; either, as of

(automatic) right or subject to the leave of the court. Explicating this rule

further, pleadings that can be lodged to the court post-defendant's WSD are

in four categories. One, the plaintiff may file his WSD to the C-C or set off.

This step is automatic. Two, further to the stated WSD, the plaintiff may;

as of right, file a reply to the defendant's WSD. Three, other pleadings may

be filed by any party after he obtains "the leave of the court and upon such

terms as the court thinks fit". Four, the court (at pre-trial) may order a

written statement or additional written statement to be filed.

Admittedly, the proceedings at hand, therefore, have been initiated in

line with the third category above. Without overstating the background,

after the applicant's (defendant's) C-C was struck out by this court on

October 6th , 2023; the subject party's pleadings which were spared are his

WSD. The controversy between the parties herein hinges on such issue as

to whether the applicant herein can file the C-C at this stage. Whereas the

applicant argues that he can rightly do so, the respondent holds a totally

different view.
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In my considered opinion, in line with the categorization of pleadings

which can be filed after the defendant has filed his WSD; the rivalry

submissions of parties herein should be evaluated and considered on the

basis of whether the applicant exhibits adequate grounds to move court to

grant the sought leave. I have the reasons for holding such view. I will state

them here. First, inarguably the pending Commercial Case No.7 of 2023

has it a record that the only existing pleadings of the defendant is the WSD.

Hence, he can precisely be considered as having no right to file any other

pleadings without court's leave.

Second, and as correctly argued by Mr. Ayall, it is not mandatory that

the C-C must be filed within the WSD lest, the visage of Order VIII Rule 13

of the C P C nwM be shrunk. Third, as alluded to earlier in this ruling, in a

case where the C-C is filed, the court is guided by expedience in deciding

whether such C-C should be disposed of simultaneously with the plaintiff's

suit or separately. Fourth, the respondent contended that the applicant has

at his disposal two options: to pursue amendment of the WSD to include

the C-C therein; and to file a fresh suit and pray to consolidate two cases

later.
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I will generally reach an agreement with the respondent's counsel

regarding the subject twin alternatives. Nevertheless, I am inclined to hold

a different conclusion to the respondent's deduction hereof. The availability

of the stated options to the applicant does not, in my considered judgement,

oust his right to file the envisaged C-C if he meets the legal threshold of

being granted leave to do so. In addition, after ordering the C-C to be struck

out of the defendant/applicant's WSD; it would be asymmetrical to

circumvent the said order by seeking to reintroduce it by way of

amendment. Technically reasoned, unless the said order is vacated first, the

court will still be functusofficio\w such regard.

The above said and done, I will now consider the merit of the

application. From the affidavital depositions, the primary reason given by

the applicant to support the application is that: the prospective C-C "raises

some serious questions that need to be addressed by the court for final and

conclusive determination of the controversy between the parties to this

Court". During hearing, the applicant's counsel amplified it by arguing that

the applicant's claims are intertwined with the contention in the plaintiff's

suit such that it would be ideal for the court to decide the parties' dispute
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fully; amending the existing pleadings to include the C-C would amount to

abuse of court process; and that to file a separate/fresh suit will amount to

courting for obvious wrath of res subjudice or res judicata against that

prospective suit. While I subscribe to the applicant's argument regarding

abuse of court process, I hold that it is not necessarily the case that

whenever the C-C is filed and/or determined separately, the principles of res

subjudice or res judicata undermine it. Such rules, apply on case-to-case

basis. That is, they are to be considered on merits of each case.

It is not out of place if I reaffirm the objective of C-C. Among the

rationales of a cross-suit are to save time, money and related resources; to

have the parties' interfused related disputes resolved conjointly with

completeness; the court to arrive at one decision for two suits thereby

avoiding the risk of giving two contradictory judgements; and to maintain

coherency in court proceedings. These aspects are apparent in the matter

at hand. The applicant had his so-called C-C raised right from the outset

after being served with the plaint in Commercial Case No.7 of 2023. Hence,

the present move is not an afterthought.

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In addition, the striking out of the applicants purported C-C did not

finally determine the parties dispute therein. The applicant retained the right

to refile his C-C appropriately in future. Furthermore, the respondent does

not mainly object the C-C being introduced by the applicant and/or disposed

of by the court; save for the vehicle with which to commute towards such

destination. In other words, by concession, the respondent's primary

opposition against this application is that the applicant has the suitable

options to achieve the same results. This opposition notwithstanding, having

reasoned that such options do not bar the applicant from filing the C-C; the

respondent's disputation is considered in the disaffirmation.

I am not naive to the fact that the leave sought herein should be

granted sparingly. Indeed, factors to be considered before granting leave,

in my view, include: the stage of the proceedings. It would mirror odd, for

instance, if filing of the C-C is permitted when hearing of the case has

commenced. Likewise, if introducing the C-C would amount to joining other

parties whose inclusion in the suit is subject to other condition precedents;

such as statutory notices, or seeking extension of time prior to suing them,

the court's loathness comes into contemplation against the prayer.

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Moreover, if the applicant failed to comply with the filing order previously

given by the court for him to file the C-C; etcetera et ceteraWn other words,

the court is normally guided by expedience in the interest of parties.

Consequently, the Court finds and holds that the applicant herein has

demonstrated sufficient justification for his prayer in the application. I will,

as I hereby do, merit it. For avoidance of doubt, the applicant is hereby

given a fourteen-day leave to file the envisaged additional pleadings in the

form of C-C against the respondent (plaintiff in Commercial Case No. 7 of

2023); if he so still desires. I make no order as to costs.

UNJTEo
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C.K.K. Morris

Judge

March 22nd, 2024

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Ruling delivered this 22nd day of March 2024 in the presence of Advocates

Nixon Tugara and Yohana Ayall for the applicant; and Franklin Chonjo for

the respondent.

Judge

March 22nd, 2024