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.
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