CFA MOTORS T LTD VS RAPHAEL LOGISTICS LTD COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 11126 OF 2024 CFAO MOTORS TANZANIA LIMITED…………………………..………..PLAINTIFF

VERSUS RAPHAEL LOGISTICS LIMITED………..…………………………………DEFENDANT

RULING Date of Last Order: 20/08/ 2024 Date of Ruling: 27/09/2024 GONZI, J. The Plaintiff filed the present suit against the Defendant seeking the following reliefs; i. That the Honourable Court be pleased to order the Defendant to pay the Plaintiff the amount of US$ 235,368.00 and TZS. 21,609,454.43/=, being the remaining balance of the Purchase Price and outstanding amounts on after sales services respectively; ii. That the Honourable Court be pleased to order the Defendant to pay the Plaintiff Interest on US$ 235,368.00 at the rate of 8.75% per annum from 11 April 2023 to the 1|Page date of Judgment and interest on TZS. 21,609,454.43/= at the rate of 10.12% per annum from 16 April 2024 to the date of Judgment; iii. That the Honourable Court be pleased to order the Defendant to pay the Plaintiff Interest on the decretal amounts at the rate of 7% from the date of judgment until full and final payment; iv. Costs of the suit; v. Any other reliefs which this Court may deem just to grant. The Defendant filed her Written Statement of Defence (the WSD) against the suit which included a Notice of Preliminary Objection in law. The Preliminary Objection was to the effect that: i. The suit is bad in law for contravening the mandatory provisions of Rule 4(1) (a) & (b) of GN No. 66 of 2022 and section 84A of the interpretation of Laws Act, Act Cap 1 RE 2019 as amended by the Written Laws

(Miscellaneous Amendments) Act, 2021. With leave of the Court, the hearing of the Preliminary Objection proceeded by way of written submissions. The plaintiff enjoyed the services of Mr. Gaspar Nyika and Samah Salah, Learned Advocates, whilst the 2|Page Defendant was represented by Mr. Fikiri Liganga, Learned Advocate. I thank the Learned Counsel for their useful submissions. Mr. Liganga, Learned Advocate, submitted section 84A (1) and 84A (2) of the Interpretation of Laws Act, Cap 1 (R.E 2022) provides for the language of the courts to be Kiswahili. He argued that Rule 3 of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, GN No. 66 of 2022, stipulates that pleadings, proceedings or decisions may be in English language. He reasoned that Rule 3 of GN. No. 66 of 2022 provides for an exception and lays the circumstances under which English language may be used in lieu of Swahili language and that it gives discretion to a party who wishes to institute legal action to use English language in his pleadings if he is satisfied that the subject matter of his case falls under one of the allowable circumstances. These allowable circumstances are listed in the schedule to the GN. No. 66 of 2022 such as when the matter/dispute involves finance and monetary affairs. Mr. Liganga, Learned Advocate, insisted that there are conditions which the

Plaintiff ought to have complied with while exercising and enjoying the discretion of filing his pleadings in English language. These conditions are stated under Rule 4(1)(a) & (b) of GN. 66 of 2022. Mr. Liganga made 3|Page reference to Rule 4(1) (a) & (b) of GN. No. 66 of 2022 that the marginal note thereof connotes filing of pleadings in Kiswahili language and the Rules provides that: ‘A party who intends to initiate proceedings which, in his opinion, falls under the circumstances where the proceedings and decision thereto are to be conducted in English Language, such party shall: (a) File his pleadings in English language with their corresponding translation in Kiswahili language; and (b) State he grounds upon which he relies to have the proceedings conducted in English language’. Mr. Liganga, Learned Counsel for the Defendant, submitted that the Plaintiff has not filed the corresponding translation of his English language pleadings in Kiswahili language nor given the grounds to have the proceedings conducted in English language thus contravening Rule 4 (1) (a) & (b). Submitting further, Mr. Liganga, Learned Advocate, argued that the provision is couched in mandatory terms through the use of the word “shall” to make the said provision imperative by virtue of section 53 (2) of the 4|Page Interpretation of Laws Act, CAP. 1 of the laws (R: E 2021). He cited the case of Godfrey

Kimbe versus Peter Ngonyani, Civil appeal No. 41 of 2014, Court of Appeal of Tanzania at Dar es Salaam (unreported), at page 13. Mr. Liganga submitted that the Plaintiff in this case ought to have mandatorily lodged/filed alongside the English version of the plaint, a corresponding Swahili translation of it, and also ought to have stated the grounds upon which he relies to have filed his plaint in English language. He emphasized that adhering to the rules of procedure is mandatory such that the courts of law should not allow circumventing them under the pretext of oxygen principle otherwise by so doing it will make the rules of procedure merely academic and no longer meaningful. He cited the case of SGS Societe General DE Surveillance S and Another versus VIP Engineering & Marketing Limited, Civil Appeal No. 124 of 2017, Court of Appeal of Tanzania at Dar es Salaam (unreported) at page number 23. He wound up his submissions praying for the plaint to be struck out with costs. In reply Mr. Nyika, Learned Advocate, submitted that the Defendant avoided to mention the provision of rule 3 of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, read 5|Page together with section 84A of the Interpretation of Laws Act. Rule 3 provides for matters in which pleadings, proceedings or decisions may be conducted in English Language. Such matters

are provided in the Schedule to the Rules, and they include matters involving finance and monetary affairs, a matter in which the law governing the matter subject of the litigation, and the practice and procedure thereto are not available in Kiswahili language. He referred the court to Items (d) and (g) of the Schedule to the Rules. In addition, he submitted that item (i) gives a wider discretion for use of English language where for any reason the interest of justice demands so. Rule 3 Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules provides for independent and separate circumstances in which English language can be used. He argued that the criteria in rule 3 is in the schedule to the rules. The circumstances under rule 4 are those in which, in the opinion of a party, the proceedings and decisions should be conducted in English Language. He submitted that it is thus a matter of a party’s opinion. He elucidated that, Rule 4 deals with separate circumstances to which English can be used stating that the rule does not make any reference to rule 3 or the schedule to the rules. 6|Page Mr. Nyika, Learned Advocate, submitted that the Plaintiff’s suit is one founded on breach of an agreement of sale of goods. It is, therefore, a case involving the Sale of Goods Act and the Law of Contract Act, both of which are in English Language. He

submitted that the practice and procedure of the Commercial Court, under the High Court (Commercial Division) Procedure Rules, 2012 G.N No. 250 of 2012 is also in English. It is, therefore, a matter which falls under item (g) of the schedule to the rules. He added that the Plaintiff’s suit is a claim of money arising out of a contract. It is a suit which involves finance and monetary affairs thus it falls under item (d) of the schedule to the rules. He submitted that the Plaintiff’s suit is one which should be conducted in English Language and therefore does not require any corresponding Swahili version of the pleadings since the agreement subject of the suit is in English; all correspondences between the parties have been in English and the Defendant has engaged an advocate who has filed a WSD in English. He argued that it will, therefore, be against the interests of justice to require parties to spend time and money to prepare a Swahili version of every pleading filed or to be filed in Court. He concluded that the overriding objective rule intends to uphold just determination of proceedings and efficient use of judicial and administrative resources. 7|Page In rejoinder Mr. Liganga, Learned Advocate, submitted that the Plaintiff has opted to argue against the preliminary objection by relying solely on the provisions of rule 3 of GN. No. 66 of 2022 in isolation of other

provisions. He submitted further that statutes are not properly interpreted by reading a single provision thereof. He argued that GN No. 66 of 2022 has to be read with the Interpretation of Laws Act, CAP 1 (R.E 2022) as it was enacted from it. That being the case, he argued, the provision of rule 3 cannot be used to defeat the effect of rule 4(1)(a) and (b). he referred the court to the Director of Public Prosecutions versus LI Ling Ling, Criminal Appeal No. 508 of 2015. He concluded by arguing that a statute must be read as a whole. He maintained his prayers for the plaint to be struck out with costs. That marked the end of submissions by the Learned Counsel for both sides and the court is thankful to them. Having read and analyzed all the submissions from both sides the central issue in this preliminary point of objection is whether the plaintiff in filing the pleadings which are in English Language without filing the translation of those pleadings in Kiswahili language violated the provisions of rule 4(a) & (b) of GN No.66 of 2022 read together with section 84A of the Interpretation of Laws Act? 8|Page Rule 4(a) &(b) of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules. 2022 of GN No. 66 of 2022 states as follows that; “4.-(1) A party who intends to initiate proceedings which, in his opinion, falls under the

circumstances where the proceedings and decision thereto are to be conducted in English language, such party shall- (a) file his pleadings in English language with their corresponding translation in Kiswahili language; and (b) state the grounds upon which he relies to have the proceedings conducted in English language.” It is the defendant’s stance that, under section 84A of the ILA and Rule 4(a) of the Rules, pleadings filed in English language must be accompanied with their corresponding translation in Kiswahili. Similarly, in regard, the defendant maintains that, Rule 4(b) of the Rules requires a party wishing to initiate proceedings in English language to also, file a corresponding version of the pleadings in Kiswahili language. Thus, according to the defendant the plaintiff herein did not comply with the provisions of the law stated above since his plaint was filed in court whole in English without the Kiswahili version thereof. 9|Page There is no need to re-invent the wheel in respect of the present preliminary objection. Recently, this Court was faced with a similar Preliminary Objection in GG Refinery Ltd vs Ro Water SA (PTY) Ltd (Commercial Case No. 5223 of 2024) [2024] TZHCComD 191 (9 August 2024). In its Ruling (as per Hon.Morris,J.), this Court held that: “I am in accord with the plaintiff’s counsel that, the omission is neither fatal nor has it prejudiced to

the defendant. The procedure of pleadings in this Court is specifically governed by the Commercial Court Rules. Likewise, even if it were to be otherwise, the schedule made under section 3 of the Rules, provides that the matters involving “finance and monetary affairs” are within the ambits of conditions for the use of English language. Moreover, in my view, the defendant should have exhibited to this Court how the omission has caused prejudice on his part. In fact, manifestly the defendant is not prejudiced by the English version of the plaint. I will give a couple of points to account for such position. One, he is under the legal representation; and two, his WSD is also in English language. Three, the annexures appended to the pleadings upon which the case is hinged are all in English. It thus defeats logic if only the documents to be translated are the pleadings 10 | P a g e and no equal scale of compulsion to have the translated version of the annexures.” Without wasting much ink and paper, I fully subscribe to the above holding and I stand firmly by that decision for the same reasons. On the basis thereof, I dismiss the preliminary objection raised by Mr. Liganga, Learned Advocate for the Respondents. Costs shall follow the event. It is so ordered. A.H.GONZI

JUDGE 27th September, 2024 Ruling is delivered in Court this 27th day of September, 2024 in the presence of Mr. Idrissa Mguha, Advocate for the Plaintiff also holding brief for Mr. Fikiri Liganga, Advocate for the Defendant. A. H. GONZI

JUDGE 27th September, 2024 11 | P a g e