east coast oil and fats ltd vs tanzania burea of standard and another 2021 tzhccomd 3435 29 november 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.151 OF 2017 EAST COAST OIL AND FATS LTD......... .....PLAINTIFF TANZANIA BUREA OF STANDARDS..^.<DEFBilDANT THE HON. ATTORNEY GENERAL...\v...2n^DEFENDANT Date of Last Order: 17/11/2021 Date of Ruling: 29/11/2021 RULING NANGELA, This^ruling results' from a preliminary objection \\ )t // froQted.by'the-learn.ecl counsel for the Plaintiff. By way of bac^^n^on>14th September 2017, the Plaintiff herein filed this^case against the Defendants and is praying for judgment and decree as follows: 1. A declaration that the second report issued by the 1st Defendant in respect of the imports made by the Plaintiff aboard MT PYXS DELTA is erroneous and null and void to the extent that it categorise the import as other than crude palm olein. Page 1 of 18 2. A declaration that the Plaintiff is entitled to an assessment of customs import duty on the import at the rate of 10% amounting to TZS 4,488,430,600 and, therefore, it is entitled to a refund of the 15% duty it paid over and above the applicable tax amounting to TZS 6,732,645,901, should have been due from it at the rate of 10%. 3. The 1st Defendant pays the" Plaintiff' the sum of TZS 377,507,225^being, loss the Plaintiff incurrecbas afcre&jit* * \\ of the 1st Defendanfs^erroneous second re^Kas per'Para. 16 of the Plaint^> 4. Theflst Defendant Pay me Plaintiff ys \\ </ ^/^interest\on the^amount due to the '^P^tajintiff asupep'prayer No.(2) herein above.atthe rate of 25% per annum (^^asjjermercantile custom from the /<date the money was paid to the TRA X> till the date of judgement. 5. The 1st Defendant pay the Plaintiff interest on the decretal amount at the Court's rate from the date of judgment till when the decree is fully satisfied; 6. The 1st Defendant pay to the concern authority any charges incurred in any form like customs warehouse rent over the Plaintiff's Page 2 of 18 consignment as per Para. 17 of the Plaint; 7. The 1st Defendant to pay the Plaintiff costs of and incidental to the suit. 8. Any other relief (s) that the honourable Court may deem fit. The suit has dragged in Court for some time now. However, on the 17th November 2021, if'was scheduled \x for a continued hearing of the defence>case?So. far/two witnesses for the Defendants haVexalrea^testjfied and tendered various documents which^ere^admitted and assigned exhibit numbers^^S. On the material datex therefore, Mr Alex ({ n V/ Mgongolwa, learned\advocate appeared for the Plaintiff and was assisted^by MsxZhakia Ally, Mr Roman Selasini Lamwai and^Ms Neema/Maumba, learned advocates. For the^Defer^da^j-the^Principal State Attorney, Mr Hangi Chang'a, \appeared and was assisted by Ms Grace \\ \\ Lupondc^jdl Luoga William, Senior State Attorneys. Having called the 3rd witness for the Defence, DW-3 Mr Lawrence Chenge, the same was made to take oath and testified in chief. Led by Mr Hangi, Dw-3 identified and prayed to be received in Court, a witness statement which he had earlier filed in line with the requirements of Rule 49 (1) and (2) of the High Court (Commercial Division) Procedure Rules, GN. No. 250 of 2012, as Page 3 of 18 amended in 2019. This Court received and adopted the Witness Statement as Dw-3's testimony in chief. In that Witness Statement, Dw-3 referred to two exhibits, namely: (i) Tanzania Standards TZS 725:2004 ISO/IEC 17025:1999 (E) General Requirements for the Competence of Testing and Calibration Laboratories- Annexure TBS-1. (ii) TZS 559: 2010 Palm Specification- Annexure TBS-2. These two mentioned^oVu^iente^ha xcl,already been tendered in Court and admitted intcxeyidence as Exh.D-1 \X \> and Exh.D-2. Having/received Dw;3>'s witness statement, Mr Hangi requested tpxshowyDw^3 Exhibit D-l to find out if it is the document he„had referred to in his witness z— XX statementr-At thatxjuncture, Mr Mgongolwa raised an xX )) ?/ objectiQrV'toXthe--:prayer. He submitted that, it was unproceduralrbr the witness to be shown a document \\ \\ v which-fie^as not intending to tender in Court. According to Mr Mgongolwa, the procedure of this Court requires that the witness statement be filed in writing and that, it must be under oath. Once filed in Court, on the hearing date the witness is only supposed to identify his or her statement, adopt it in court and the second step is admissibility of documents pleaded and Page 4 of 18 attached to the witness statement, which will be tendered in court for their admissibility as exhibits. Mr Mgongolwa contended that, the procedure which Mr Hangi wants to use offends Rule 49(1) of the applicable rules of this Court because the witness statement is an examination in chief. So, after the Witness statement has been adopted and documents tendered, that marks the end of examination in chief, contended Mr Mgongolwa. He further added that, if tKere^is\Q,$.document to tender, then, that will mark the^eijd*o^the\examination in chief as there will be <iTO^rpom\^^§xamining other documents tendered^by other^itnesses. He contended that, Dw-3 had>theVopportunity of examining other witnesses' docdfnents mxthe^witness statement prior to its filing and/not\at thextim'e he is in the dock testifying to the-Gou^^^i^^^^ \yMr^Mgongolwa submitted that, the rules were meant-stc^nprten the journey of examination in chief and one cannot fill any potholes by things which he ought to have stated them in his witnesses' statement. To conclude, he placed reliance on the Court of Appeal decision in the case of Total Tanzania Ltd vs. Samwel Mgonja, Civil Appeal No.70 of 2018, at page 24, and contended that, there is no room for the filling of potholes after a witness has tendered his/her statement Page 5 of 18 in Court. He submitted that, Mr Hangi is trying to use a tactic which is creature unknown to the law and must be stopped and allow Dw-3 to proceed to being cross- examined. This Court posed a question to Mr Mgongolwa to the effect that, since it is shown in the witness statement that the witness has referred to documents which have already been admitted as exhibits D-l andxD-2 by this Court, when can a witness refer to^ely_OT\Q^use a document which has already been>admittedz,as-exhibit if he, himself has made mention of^hemynmi's statement? Responding to that<question po^ed by the Court, Mr Mgongolwa submitted that tnex.only opportunity the U ZN // witness has to/explai^or\give extra-particulars of a document which<Avas tendered by another witness is throughzthe-'same witness statement of his, by putting all nV )L 2/ necessaiy'ingredients'of what he wants to say. He sought nS support from tlje fact that, the law has put in place limit of timeVtoJIe a witness statement. Mr Mgongolowa submitted further that, the requirement to put all things within the witness statement is to ensure that there is no chance of defeating the rule against surprises. He contended, therefore, that, what a prudent lawyer would have done was to analyse, ahead of time, everything and include them in the witness statement. Page 6 of 18 He submitted, thus, that, Dw-3 has no room to bring in any other explanation of fact since the assumption is that, all the witness is to say is in the witness statement. In view of that, he concluded by stating that, if a witness has not provided the document in his witness statement, he cannot rely on the exhibits already tendered in Court by other witnesses. As for Mr Hangi, it was a submission that, the objection is misplaced. He submitted f^a^^^ja^hce of this Court after adopting a witnessvstatejnent as examination or testimony in^chiefco^a^vyithess, the next stage is for the witness\to tender all annexure or documents referredZto in theSwitness statement. He ( /x >7 submitted that^the said document need not be new to avoid taking the'ottier p‘arty:byzsurprise. HeTontendedxhowever, that, in the scenario at )) >7 handrsoon>after-the witness statement got admitted by (CNX the. Courbas Bw-3's testimony in chief, the witness was \\ w requi'reaJa/tender documents which he referred to in his witness statement so as to have them admitted as exhibits and these are the same documents attached in the pleadings (the WSD). The same were referred to in the witness' statement, he so submitted, as the witness did indicate and refer to those documents in his statement. Page 7 of 18 Mr Hangi submitted as his second point on the status of documents already tendered and were admitted by the Court as forming part of the admitted exhibits. He contended that, since such documents were already admitted by the Court, it would be improper to have then re-tendered as new exhibits since they are already part of the Court's record. He argued that, if those documents are documents referred to in a witness statemeri^tiiavxl^^^ly appropriate time for the witnesses explain^^out their applicability is during the exarni^aJ^^Q^chief and not during cross-examination/O^re-examination, the reason being that, at these4wo laterstqges, one is bound or limited by what^has bean earlier^ted. He argued that, if the Plaintiff chooses ndfctoiask any question, then the Defendant-will have’no.,other option or room to use those documents^ \\ As regards that the documents were not attached, \\ " Mr Hangijeferred this Court to the earlier ruling of its own dated 26th September 2021, which resolved that issue. He also referred this Court to Rule 4 of its rules of procedure on the need to achieve substantive justice in this particular case, noting that, the essence of Rule 49 (1) of the High Court (Commercial Division) Procedure Rules, 2012 (as amended) is to facilitate trial with due Page 8 of 18 regard being had to the need to achieve substantive justice. Mr Hangi submitted further that, the Plaintiff's counsel has not been able as well to explain how is the Plaintiff going to be prejudiced if Dw-3 is allowed to explain about the applicability of those technical documents he referred to in his witness statement, which had already been received in Court asNzxhibits. He submitted that, the Plaintiff's counsebwill oexafforbed z. wSSx. x/ opportunity as well to cross-examinexthe\withess> Mr Hangi submitted^^at$^hiS'CQurt^hould not be allowed to act in a double'standardXHeurged this Court to refer to its proceedings wherfej^wiil readily find that, during the examination in'chief'of Pw-2, the Court did allow Pw-2 to^dSe^exhibifealready tendered by Pw-1. In/conclusion, 1ne<as well invited the Court to also use^the DrinGiple-ofx)verriding objective and allow the witness tojnake use of the document referred to in his A\ \ witnesS'Statement. To add to what Mr Hangi submitted, Ms Lupondo rose and took the floor. In her submission, she told this Court that, the only issue which needs to be resolved is one regarding: when will a witness be allowed to use/rely or refer to a document which is already tendered in Court and admitted as an exhibit? Page 9 of 18 Mis Lupondo submitted that the High Court (Commercial Division) Procedure Rules, GN.250 of 2012, (as amended, 2019) do not provide for such a circumstance. In that regard, she argued that, one has to revert to what Rule 2(2) of the same Rules which allows one to resort to the Civil Procedure Code, Cap.33 R.E 2019. Ms Lupondo further referred to section 144 of the Evidence Act, Cap.6 R.E 2019, concernirig>the order in which witnesses are to be regulated. In her submission, she held^a fifm^yiew^tfiat, the practice and procedure re^rjng^^witness to a document already receivedxin Court^may happen when the witness is called<for examination in chief as well, so (( ZK >X long as those documents are^already forming part of the record of the Gour^. She/ConcededXasfregards the rationale of Rule 49 )) ?Z (1) ,High/'Court;(Commercial Division) Procedure Rules, GM.250 ofS2012, (as amended, 2019), which rationale was clarified'' by Mr Mgongolwa, is that of accelerating trials in this Court but, she added, however, that, the rationale is also with due regard to the attainment of substantive justice, and, on her part, allowing the witness to make use of the document referred to in his witness statement, and which is already in Court as exhibit, will assist the Court to attain substantive justice. Page 10 of 18 As regard the case of TOTAL (supra), Ms Lupondo submitted that, the case is distinguishable from the circumstances of the case at hand. She contended that, the Court of Appeal of Tanzania's discussion in that case was only limited to the explanation regarding the rationale of Rule 49(1) of the High Court (Commercial Division) Procedure Rules, GN.250 of 2012, (as amended, 2019) and, the tendering of documents. She^argued that, that judgment does not bind this Courta^re^rd^e^new issue that has arisen in this matter^whichJs^wbether this O- \< ’ new witness can be referred^to-.documents already // tendered and admitted as^exhibits iixCourt. That being said/'Ms Lu^Mo>contended that, the objection raised,by Mr\Mgongolwa lacks merits because a witness cannot'just bring-azdocument in Court and merely dump it<there witn\no>assistance to the Court in its journey, rf<attaining substantive justice. She urged this Court to overru le the objection and allow the witness to \\ \\ be referredyto the exhibits already admitted in Court. Mr Mgongolwa made a rejoinder submission. He rejoined that, the Defendants' counsels have admitted three things, namely, that: (i) under this Court's rules of procedure, there is a process of filing witness statements and, that, the witness statement can have documents intended to be tendered, which must be in the witness statement; (ii) there is a stage of adopting the witness Page 11 of 18 statement and what follows thereafter is admissibility of documents, if any as exhibits of the Court. He contended that, the learned State Attorneys have not said that there is a stage of explaining about other documents produced by other witnesses. Mr Mgongolwa argued that, in the current statement, there is a mere mention of the document without explanations. He submitted that, a^mere mention is not good enough and if one^inten^sXtcj/^give explanations about the document, such^explanations should go into the witness, statement, as one will be bound by the witness statement forcrpss-examination. \\ He rejoined further that, un(fer> the Rules governing the procedurejm tnis^Court,\jwitness is at liberty to attend or not^tbsattend^for^cross-examination, although doing so^would have^spme repercussions. He submitted that,-the learned-state Attorneys are avoiding telling the Court asxo why they did not attach or put in place explanations)regarding what the witness want to tell the Court. He contended that even if what the witness is to tell the Court is technical, there is always a language for that and the witness is not an expert witness according to the witness statement. Mr Mgongolwa rejoined further in regard to the applicability of Rule 4 of the High Court (Commercial Division) Procedure Rules, GN.250 of 2012, (as amended, Page 12 of 18 2019). He was of the view that, the oxygen principle which is enshrined in that rule applies only when there is a defect to cure but we are not told which defect the Defendants' attorneys are intending to cure. Referring to the case of TOTAL (supra), Mr Mgongolwa rejoined that, the case is not distinguishable as the Defendants' attorneys have not laid out how different it is with the case at hand. He submitted that, the Plaintiff is prejudiced by the fact tha^|^owiM^Dw-3 to make use of the document (Exh$D.l and^DZ^iII violate the rule against surprise. - Procedural Rules^governingithe conduct of matters in this Court applies^. Thai^profeedure was well capture in the x/xk JI TOTAL'SXcaseSsupra). The two counsels' point of departureXhowgver, is not very well demarcated in their subrnisSiops/and, for that matter, a careful treading on their terrain of discussion is needed, if one is to disentangle their self-created "Gordian Knot." Even so, before I go to the crux of the matter, I find it apposite to start by looking at the objection itself and how it was brought to my attention. In my view, the objection was a hurried one. I hold that view because, the same came at the time when the third witness for the Page 13 of 18 defence case, Dw-3 just finished having his witness statement received as Dw-3's testimony in chief. In that statement Dw-3 referred to two documents which, though not attached to the statement, were already tendered and admitted in Court as Exhibits D-l and D-2. When Mr Hangi wanted to show the witness whether the documents he had mentioned are the ones already received as exhibits in Court, the objection which is the subject is of this ruling, immediately surfaced? To my considered view, asking a wibiesszto^identify a document which s/he is to be^bwnXif indeed it is the one he has referred to iij/his^witness statement or not), does not amount to .giving detail&about it. I do not even see how that wpuldSprejuctice the Plaintiff, in the first place. I,h6ltbt to be>so>because, in the first place, the learned^State-Attorney had intended to ask the witness, Dwr3, to identify whether the documents he had referred . x\ to in his^witness statement was the one already in Court or not. My understanding is that the witness (Dw-3) was not tendering but rather identifying whether the documents he had referred to in his witness statement are the same as the ones already admitted in Court. Secondly, I do not see any violation of the rules of this Court in that act. I hold so because, in Court, an article such as document, record or other tangible object Page 14 of 18 can readily be produced and even marked C'lD") for identification purposes only. The general principle, however, is that, documents produced in court for identification, even if marked, are not exhibits and have no weight at all as evidence. See the case of Mbaraka Abdallah Al- Said and Rubeya Abdallah Al-Said vs. NIC (T) Ltd and PPSRC; Commercial Case No. 72 of 2003. However, if it is to be duly tendered^as exhibiti/ttiat comes after it is duly identified,''cleared,and>admitted. << Nx \t Besides, if that is to happen, then>it<is clear that, the /< rules of this Court have <pev^r ousted the principles that govern tendering anc?admissibility^ of documents and other articles. Such doojmentor^article may be tendered by a witness ^widedtha the falls within the categories of persons-who mav^ender an exhibit in Court. x-Th^'categorydnclude persons who are its maker or, a person wh^at one point was in possession of it, was a custodianjpfjt or actual owner, was its addressee or even any person with knowledge of the exhibit. It is also clear that, an officer from an entity from which the document or article relates may also tender it in Court. See the cases of Thomas Ernest Msungu @Nyoka Mkenya vs. Republic, Criminal Appeal No.78 of 2012, CAT (unreported); DPP vs. Mizrai PribakhshI & 3 Others, Criminal Appeal No.493 of 2016, CAT (unreported). Page 15 of 18 Thirdly, it is not disputed that the witness himself had referred to certain documents in his witness statement which are: (i) Tanzania Standards TZS 725:2004 ISO/IEC 17025:1999 (E) General Requirements for the Competence of Testing and Calibration Laboratory Annexure TBS-1. (ii) TZS 559: 2010 alm Specification- ^nnexureSTBk-2. As such, the intent/S'hqwn by\tfTe^Defence counsel to inquire from the witness whether the above documents are the ones alreadyktendered and admitted as exhibits /? \\ \\ D-l and D-Z^Dy^showingJhe/witness such exhibits, that alone cannot, in nwconsidered view, prejudice anybody or take anygne^by surprise as Mr Mgongolwa wants this Court to^eliwe. Those documents were already referred \\ \\ to in\the witness statement and were also known to the Plaintiff because they had been earlier tendered and admitted into evidence as Exh.D-l and D-2. Furthermore, while I do understand that the object of pleadings is to prevent either party from being taken by surprise at the trial, and to enable the parties to know what case they have to meet, in this particular case, the Page 16 of 18 documents referred to in the Dw-3's witness statement were also attached to the WSD filed by the Defendants. Having said that, I find, in my view, that, the pressing question which needs to be asked in relation to the objection raised by the counsel for the Plaintiff is whether a witness is at liberty to make reference to a document which has already been tendered by another witness and admitted into evidence. In^her words, when can a witness refer to /rely on^obuse ^document which has already been admitted as^xhjbj^if'hg, himself has made mention of them ionisstatement? As it might be notecbearlierZ^osea that question to the learned counsels for\tte> parties herein. Mr Mgongolwa sutmttedtfhat^e only available opportunity to the witness TO\^xpfeifcdZgive extra-particulars of a documenbwhich wasUfendered by another witness is through his'orhheyyifness's statement. Ms Lupondo and MrWar^i\™d^>a different opinion, holding that, the witness'may) refer to such a document at the time he is testifying in chief or during cross-examination and re­ examination. Agreeably, it is clear that, that kind of a question was not an issue for which an answer is readily available from the TOTAL'S case (supra). The TOTAL'S case (supra) did not address such a scenario, and, in my view, Page 17 of 18 that is a pertinent issue that would need to be addressed had the objection been raised at an appropriate point. Assuming that the objection came at an appropriate time, the answer to that question would, in my view be that, since the document is well known to both parties and is part of the Court's record, in a proper context, any of the parties is at liberty, at any stage, to use it in the course of rendering his or her testimony in Court. Doing so, in my view, cannot by any stretch of imagination, prejudice any of the parties, nor take any of them by surprise. Having said that, I do hereby overrule the objection raised by Mr Mgongolwa and proceed to allow the Defence counsel to make use of the Exhibit D-l and D-2 which had been earlier tendered and admitted into evidence. DATED at DAR-ES-SALAAM ON THIS 29th DAY OF NOVEMBER, 2021. HON. DEO JOHN NANGELA JUDGE Page 18 of 18