BoI v Seth Fuel Others

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 152 OF 2023 BANK OF INDIA (TANZANIA) LIMITED…………..………………………..PLAINTIFF VERSUS SETH FUEL (T) LIMITED …………………….…….…………………...1ST DEFENDANT PETER RODRICK NGOWO………………..…………………………….2ND DEFENDANT RATNAKAR DEORAM WAGH……………………………………………3RD DEFENDANT RULING September 27th & October 17th, 2024 Morris, J A witness statement is sworn evidence. The oath in such statement acts as security for accuracy, authenticity and wholeness of the evidence stated therein. It complements the rule of reliance on the truth and abhorrence of falsehood by the Court. This ruling determines the remedy for the first and second defendants (elsewhere, the defendants) who filed incompetent witness statements in this Court. 2 However, the third defendant is not reflected in this ruling because the proceedings are being conducted in his absence following the ex-parte order of this Court resulting from his exhibited intentional non-appearance. Whereas the plaintiff argued for the expungement of the subject statements, the defendants prayed for the amendment of the same. In brief, on 20th June 2024, the parties were ordered to file the respective witness statements within a fortnight. The order was pursuant to rule 49 of the High Court (Commercial Division) Procedure Rules, 2012 [as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019]. In this ruling, both are collectively referred to as the Rules. Consequently, the plaintiff complied accordingly. The defendants filed ‘‘statements’’ for two prospective defence witnesses: Messrs. Frank Pamba and Peter Ngowo respectively. However, the purported statements by the defendants were defective in various aspects. To begin with, the foregoing so-called statements lacked the statement verifying the truthfulness of the averments therein contrary to rule 50(1)(h) of the Rules. Further, the supposed statements lacked the jurat of 3 attestation; nor were they executed before the Commissioner for Oaths. Accordingly, the Rules were not complied with in this regard. Before the matter proceeded to hearing, I brought the foregoing anomalies to the parties’ attention and invited them to address the Court on such incongruities. Advocates Simon Lyimo and Suddy Rwebangila represented the plaintiff and the defendants respectively. Primarily, the parties had no contention regarding the defendants’ so-called statements being improper and thus, incompetent under the law. However, their disputation was crocheted in the remedy available to and/or consequences to be suffered by the defence thereof. When he took the floor, Mr. Rwebangila invoked Order VI Rule (17) together with Order VIII Rules (8) & (23) of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC); and rule 24(1) of the Rules, to pray to the Court to depart from its scheduling order of 30th May 2024 so as to allow the defendants to amend the impugned “witness statements”. He also pointed out that he was aware that Order VIII Rule 23 of the CPC prohibits amendments of the pleadings after the scheduling order is made unless it is 4 for the interest of the parties’ justice. To him, the sought prayer was to achieve such objective. He also submitted that the plaintiff was not going to be prejudiced because the witness statements only become the testimonies in chief after appearance of the deponents and adoption of the same. He referred to NAS Hauliers Ltd and Others v Equity Bank and Another, Comm. Case No. 105 of 2021 (unreported, at page 23). In opposition, Mr. Lyimo submitted that the prayer by the defence was untenable. In his view, although there is no specific statutory provision regarding this situation, plethora of authorities set it a principle that when the witness statement is defective, inappropriate or improper; the remedy is to strike it out. Citing ICB (T) Ltd v Yusuf Mulla & Another, Misc. Comm. Case No. 108 of 2018 (unreported) as his authority, the counsel argued that the term ‘witness statement’ means the equivalent/lieu of oral testimony given under oath. Further, the plaintiff maintained that because the defendants filed the purported statement contrary to rules 48(1), 49(1) and 50 plus the Third Schedule of the Rules, they must face the wrath recapitulated in Ivee 5 Infusions EPZ Ltd v Mak Medics Ltd, Comm. Case No. 3 of 2019 (unreported, page 5). That is, the subject document should be struck out. It was also his argument that the statement made under oath cannot be amended, lest the testimony becomes adulterated. Further, he challenged the defendants’ citing of and reliance on rule 24(1) of the Rules; Order VI Rule 17; and Order VIII Rule 23 of the CPC because such provisions deal with amendment of pleadings while the witness statements are not pleadings pursuant to the definition under Order VI Rule 1 of the CPC. To him thus, invocation of the stated provisions by the defence was inappropriate. Regarding the case of NAS Hauliers (supra), the plaintiff argued that, the Court did not conclusively deliberate on the amendment of witness statement. Instead, it simply gave its obita dictum because the Court finally held that the defective statement therein was to be struck out though the defaulting party therein was seeking to amend the witness statement. On such basis, the plaintiff restated that the so-called statements ought to be struck out consequent of which the matter was to be set for ex-parte proof of his case. 6 Mr. Rwebangila rejoined briefly that, his prayer was legitimately justifiable because amendment of the witness statement is allowable in law [NAS Hauliers’ case (supra)]. Concerning the case of Ivee (supra), he asserted that, as the same was decided before NAS Hauliers’ case (supra) the latter prevails. He restated that in the interest of justice, both parties were to be heard on merit after the defence obtaining leave to amend the impugned witness statements. The unflustered analysis of the two rival arguments above, leads the Court to determine whether or not the defendants’ prayer for amendment of their purported witness statements is tenable in law. One of the pertinent matters not in dispute is the defectiveness of the defence documents which were envisioned to be witness statements. The impact of such parties’ concession is multifaceted. I will expound this point in numbers. One, the subject documents did not qualify to be witness statements under the Rules. That is, both are as good as no statements on record at all. The parties were unanimous on the patent defects of the filed documents. I align myself with the settled position of the law that the disqualified witness statement is not worth forming part of the Court’s record. Thus, the 7 legit remedy is to expunge the defective document off the record of the matter. Two, assuming the duo documents were to be condoned as competent witness statements but for the apparent defects. They will still face a disfavourable rule that sworn evidence is not amendable but can be supplemented or replaced. Consequently, supplementary presupposes promoting the previous document by supplying additional or clarifying depositions. That is, the previous document must be proper before the supplementary counterpart is presented. It is also the position of the law that one cannot amend a nullity. Three, the sought amendment is being pursued by the defendants after the Court raised this preliminary point. As such, the prayer for amendment will amount to circumvent the objection. However, settled is the rule that the party against whom the objection is raised cannot be allowed to move the court as if no prior objection was raised [Chesco R Kihwelo and Six Others v Pyrethrum Company of Tanzania Ltd, Misc. Civ. Appl. No. 27 of 2018 (unreported)]. Four, the order of the Court was for the parties to file the witness statements on/by 12th July 2024. In presenting the incompetent documents, the defendants defied the Court order by conduct. 8 Five, the defendants are praying for amendment of the purported witness statement without first moving the Court to exit its previous order hereof (dated 20th June 2024) and/or extend time for them to do the needful. In other words, the amendment (if it were to be permitted) should be preceded by the order of the Court for extension of time to the defendants for them to lodge the intended statements. I have heard the loud and clear prayer of the defence counsel moving the Court to depart from the scheduling order dated 30th May 2024 so as to allow the 1st and 2nd defendants to amend the ‘witness statements. On the stated date, the Court scheduled the trial sketch and there was no order as to the filing of the witness statements. In other words, even if the Court sustains the defence prayer to amend the scheduling order, its order regarding the timeline of filing the witness statements by the parties will remain intact. Six, the defendants submitted that under NAS Hauliers’ case (supra) the statements become evidence when they are adopted by the Court as evidence in chief; and that, before such adoption, amendment can be made. I took adequate interest in the cited case. The relevant part of that case in 9 the present proceedings is at page(s) 23/24. This Court partly stated as follows, and I quote: “The last part of my discussion is whether a witness statement can be amended before it is formally received by the Court. In my view, and as I sated earlier, a witness statement is akin to an examination in chief only in that it is reduced into writing. Being a written document, I am of the view that, even if the rules are still silent, still, in a proper context of a given circumstance may, upon application from a party and before the witness statement is formally adopted as part of the record of the proceedings in Court, grant an amendment” (bolding rendered for emphasis). It is obvious that the above excerpt settles the following aspects. Firstly, the witness statement is a written testimony. Secondly, the Court did not explicitly hold that a defective document which is intended to be a witness statement qualifies to be the witness statement. Thirdly, up to now the Rules are silent regarding the amendment of the witness statements. Fourthly, the Court retains the discretion to grant amendment of the witness statement. Fifthly, the Court may grant such leave “in a proper context of a given circumstance” in the particular matter. Sixthly, the Court 10 has to be moved by the party’s application. Seventhly, the pursuit for amendment should be done prior to the witness statement being formally adopted as part of the Court’s record. With the foregoing analysis, even if I had to adopt the liberal approach against the settled general rule that sworn evidence is not amendable in the interest of integrity of evidence; points number two and five above are not favourable to the defendants. I have already held that the presented documents by the defence are not witness statements worth the name. They do not qualify being referred as such. They cannot thus, be amended. Further, the circumstances of this case unveil a serious misapprehension of the requirement of the Rules in this regard. It is on record that on 20th June 2024, the defendants successfully prayed to vacate the scheduling order and add one witness to the defence. On 13th August 2024, they sought leave of the court to extend time within which they would serve the ‘witness statements’ to the plaintiff. Until when the Court raised the point of the appropriateness of the filed documents in lieu of the witness statements, the defence had not resorted to the need to rectify the patent defects on such documents. 11 Nevertheless, the defendants argued that in the interest of justice, they should be allowed to amend the defective statements so this case is heard on merit between the two parties. With adequate respect to them, it does not mean that the right to be heard should be exercised at the expense of disregarding express provisions of the law. It is a settled principle of law that a party who files the appropriate witness statement exercises his right of being heard. Thus, in my view, a party who abuses such right cannot claim that he has been denied it. Adequate inspiration in this regard may be taken from Mantrac Tanzania Ltd v Goodwill Ceramics Tanzania Ltd, Civil Appeal No. 269 of 2020 (unreported). The relevant part from that case to the present matter is summarised below. “…having filed the witness statements, the respondent was accorded a right of hearing in terms of the law. That apart, since mode of adjudicating commercial disputes is regulated by the Commercial Court Rules, with respect, it was incumbent on the learned trial Judge to comply with the law to the letter...” (emphasis supplied) 12 In conclusion, therefore, the issue set for determination hereof is answered in disaffirmation. The prayer by the defendants is accordingly disallowed. The Court proceeds to strike out the purported witness statements by Messrs. Frank Pamba and Peter Ngowo. Consequently, the defence is without the necessary witness statement(s). That is, in the absence of the defence witnesses, the defendants are as good as being absent for the trial [International Commercial Bank (T) Ltd v Yusuf Mulla and Shahidi Mulla, Comm. Case No.108 of 2018; and SM Holdings Ltd v National Bank of Commerce Ltd and Another, Comm. Case No. 134 of 2022; Nas Hauliers Limited v Yamuna Petroleum Ltd, Misc. Comm. Appl. 165 of 2021 (all unreported)]. Hence, the matter shall now proceed to the next stage. Accordingly, the plaintiff shall prove his claims ex-parte the defendants. As this point was raised by the Court suo motu, each party to bear own costs. 13 It is so ordered. C.K.K. Morris Judge October 17th, 2024 Ruling delivered this 17th day of October 2024 in the presence of Advocates Simon Lyimo for the plaintiff; and Suddy Rwebangila for the defendants respectively. C.K.K. Morris Judge October 17th, 2024