RECUSAL MWANGA J

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 10989/2024 IN THE MATTER OF THE COMPANIES ACT, CAP 212 R.E 2002 AND IN THE MATTER OF AFRICAN DEM ADVENTURE COMPANY LIMITED AND IN THE MATER OF PETITION FOR UNFAIR PREJUDICE UNDER SECTION 233(1), (2), (3) OF CAP 212 [R.E 2002] ERROL LLOYDE BAILLEY ……………………………….…………...…..1ST APPLICANT PHILIPPA SMITH ………………………………………………………….2ND APPLICANT VERSUS EMANUEL PHILP KUTTA ………………………………………………1ST RESPONDENT AFRICAN DEM ADVENTURE COMPANY LIMITED…………..…..2 ND RESPONDENT RULING 5th & 11th October, 2024 MWANGA, J. On 15thJuly, 2024, the first Respondent filed a letter requesting my recusal from this matter's conduct. In the letter, he stated that he has 1 reasons to believe that justice will not prevail under my watch due to the likelihood of bias. The 1st respondent contended that, on 24th June, 20224, when they appeared in court for the hearing of the matter, I ordered him to get out of the court chamber and remain with his advocate and counsel for a talk. As that happened, his advocate could not tell him what transpired in the respective discussions. Advocate Said Hassan Kivuyo represented the petitioners during the complaint hearing, while Ms. Sophia Rolya represented the first respondent. Kicking off the conversation, Ms. Rolya argued that the proceedings are enshrined by a bias, which would make the 1st respondent lose the case. She expounded further on the allegation; the 1st respondent could not understand what was happening between the judge, petitioner’s counsel, and his advocate as the basis of their talk was not revealed. Thus, from that moment, the respondent fears bias against him. Hence, he prays to the court in the interest of justice to recuse from the conduct of the case. Mr. Kivuyo is valiantly opposed to these allegations; he said this motion should not be used as forum shopping of judges for the respondent’s choice, as this is a luxury not available in our law and should not be granted. He 2 pointed out the defects in the letter's heading, contending that the same refers to non-existing Misc. Civil Application No. 622/2023, while the cases present in this court are petitions No. 10989/2024 and the Misc. Civil Application is No. 11164/2024; hence, the case referred by the respondent does not exist in court. Concerning the allegations for recusal, he contended that the Code of Conduct and Ethics for Judicial Officers, published in Government Notice No. 1001 on 20/11/2020, explains how judicial officers may disqualify themselves from the conduct of the case. The counsel referred to Rule 9(1) (2) of the code, stating that a judicial officer shall disqualify himself if he believes he cannot adjudicate the matter impartially. The counsel insisted that the respondent put forward no plausible argument for recusal. According to the counsel, the letter has advanced no tangible or plausible argument showing bias or favor for a judicial officer to disqualify. To him, the letter contains baseless and flimsy allegations against judicial officers. To bolster his position, the counsel cited the case of Isack Mwamasika & 2 others Vs. CRDB Bank Ltd, Civil Revision No. 6/2016 (CAT-Unreported), where it was held that the request for recusal of a judge is a serious allegation and the same shall not be entertained unless the 3 complainant brings tangible material support for recusal of the judge & judicial officer. The counsel, also cited the case of Senso Mwasua Alias Mwita & Wambura s/ Marwa @ Wambura V R, Criminal Appeal No. 518/2019 CAT – on pages 11 & 12, where the court held that a litigant cannot demand judge’s recusal with no reasons. He added that there cannot be the abduction of adjudication of the judicial officer’s duty, and it is very unethical to state that the judge's conduct is unethical. The counsel argued further that, the interest of justice requires the one who alleges to prove his claims. He went on submitting that, the allegations were culpable and false as nothing of that nature existed in the proceedings. As he put it, the counsel added that his lawyer was present if all the assertions happened. He contended further that if the court would allow the complaint, it would set a bad precedent. He referred the court to the Registered Trustees of Social Trust Fund & Another Vs Happy Sausage Ltd & Another, 2004 TLR. In conclusion, the counsel submitted that, looking at the purported letter, there is no tag bite argument. Hence, the 1st respondent failed to demonstrate how bias or unfairness could occur, and no justifiable reasons 4 or bad blood were shown. As he asserted, the 1st respondent has been given equal time, sometimes in favor of him, to reach an amicable settlement. He said the fact that the 1st respondent was displeased by the court order did not suggest that there was bias. To him, all grounds consigned together have not graduated a higher level of reasonable suspicion that would count that the judge has acted biased; thus, all grounds brought are devoid of substance and do not meet the test in Laurent G. Rugain Mkemi Vs. Inspector General of Police & Another, Civil Appeal No. 13/1999 CAT. He finally implores the Court not to grant the application and proceed with the hearing of the main petition/application. In a short rejoinder, Ms.Rolya contended that Mr.Kivuyo cited almost four unreported cases not supplied to the respondent; thus, this court should not rely on those cases. Regarding the law (Code of Conduct), she said the same talks about impartiality and bias, and the judge’s conduct goes for bias. I have keenly considered the rival submission by the parties herein. The calling issue that requires this court's determination is whether the respondent has advanced sufficient grounds justifying my recusal. Notably, recusal and disqualification of judges is a sensitive subject since it draws into 5 question a judge's fitness to carry out the fundamental role of their position in the fair and impartial resolution of judicial proceedings. So, the decision to file a motion seeking disqualification should be made only after careful consideration. This is per the case of Isaac Mwamasika and 2 Other, Civil Revision No.6 of 2016, on page 10. Further, Rule 9 (1) and (2) of The Code of Conduct and Ethics for Judicial Officers, 2020, GN. No. 1001, published on 20/11/2020, provides for the circumstances under which a judicial officer may disqualify or refuse to disqualify himself from the conduct of the matter. The same reads thus: “A judicial officer shall disqualify himself in any case in which that judicial officer (a)believes he will be unable to adjudicate impartially (b) believes that a reasonable, fair-minded and informed person would have a reasonable suspicion of conflict between a judicial officer’s personal interest or that of a judicial officer's immediate family and his judicial functions;( c) has a personal bias or prejudice concerning a party or personal knowledge or facts …” As the above excerpt suggests, there is no clear interpretation of a reasonable test for bias. However, an appropriate test in determining an issue of apparent bias is whether a fair-minded person and informed 6 observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. See the case of Registered Trustees of Social Action Trust Fund and Another vs Happy Sausages Ltd and Another (supra). The grounds for recusal were also stated by the court of appeal in the Mwamasika case (supra) in which the apex court's earlier decision in Laurean G. Rugaimukamu v. Inspector General of Police & Another, CAT-Civil Appeal No. 13 of 1999 (unreported), was quoted with approval. In the latter, principles for recusal were enumerated as quoted hereunder: “An objection against a judge or magistrate can legitimately be raised in the following circumstances: One if there is evidence of bad blood between the litigant and the judge concerned. Two, if the judge has a close relationship with the adversary party or one of them. Three, if the judge or a member of his close family has an interest in the outcome of the litigation other than the administration of justice. A judge or a magistrate should not be asked to disqualify himself for flimsy or imaginary fears”. 7 With that knowledge, I will now consider the first respondent’s complaints. Per his letter, the first respondent alleges that I acted biasedly as I ordered the first respondent to leave the court without justifiable reason. At the same time, his advocate and the petitioner’s advocate remained in the court chamber for a discussion. And that, his advocate could not reveal what was going on. It is worth noting that, to establish bias as a ground for recusal, strong reasons should be advanced to support the fact that the judicial officer cannot be expected to discharge his duties fairly. This principle was stressed in the case of R v. Australian Stevedoring Industry Board, Ex parte Melbourne Stevedoring Co Pty Ltd [1953] 88 CLR 100, which was quoted with approval by the Court in Dhirajlal Walji Ladwa & 2 Others v. Jitesh Jayantlal Ladwa & Another, HC-Comm. Cause No. 2 of 2020 (unreported). It was held in the former, as follows: “To demonstrate disqualification for bias, “it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties.” Apart from that, in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself, the mind of 8 the tribunal's chairman, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favor one side at the expense of the other. The court looks at the impression which would be given to different people. Even if he was as impartial as possible if a fair-minded person would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. See the case of Registered Trustees of Social Action Trust Fund and Another vs Happy Sausages Ltd and Others (supra). Given the above, it is apparent that the petitioner’s complaint about bias does not hold water. This is because the proceedings do not reflect whether the first respondent was ordered to get out, and even if that happened, he admits that his advocate was present in the chamber in the discussions. In my profound opinion, recusal on this ground will open Pandora's box and allow forum shopping of judicial officers, which is unavailable in our country. See the case of Isaac Mwamasika & Others vs CRDB Limited (supra) when cited with approval the case of Uhuru Highway Development Ltd Central Bank of Kenya & 2others, CA (K) 9 Civil Appeal No. 36 of 1996, Kenyan Appeal Reports Vol 3p. 211-219, where it was held that; “For our part, we dare say that most litigants would much prefer that they be allowed to shop around for the Judge that would hear their cases. That, however, is luxury which is not yet available under our law to litigants, and these applicants cannot have it”. Furthermore, the Court of Appeal has been insistent that Judges should resist recusing themselves for simple or flimsy reasons; this was adumbrated in the case of Isaac Mwamasika & Others vs. CRDB Bank Limited (supra) on page 12, cited with approval of the case of Tridoros Bank N. V vs. Dobbs [2001] EWCA Civ. 468 cited in the case of Otkritie International Investment Management Ltd & 4 Others (supra), where the court had this to say : “It is always tempting for a judge against whom criticism is made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have 10 confidence in the judge who hears his case will feel that, if he loses, he has somehow been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so”. Therefore, applying the above authority to the facts of this case, it is my findings that the respondent’s prayer does not attract me as the reasons advanced by him were very trivial and do not meet the test explained in the case of Isaac Mwamasika cited above, which is binding upon this court. I do not think my recusal based on the reasons that the respondent has fear of bias would be in the interest of justice. As rightly submitted by Mr. Kivuyo, the reasons advanced by the respondent are flimsy and imaginary as doing so is tantamount to the abduction of my calling as expressed in the case of Registered Trustees of Social Action Trust Fund & Another vs. Happy Sausages Ltd & Others (supra) where it was held inter alia that: “It is our considered view that it would be an abduction of the judicial function and an encouragement of spurious application for a judicial officer to adopt the approach that he/she should disqualify himself or herself whenever requested to do so on the application 11 of one of the parties on the grounds of the possible appearance of bias.” In the event I dismiss the respondent’s prayer to recuse myself from the conduct of this matter. The hearing of the main application is ordered to proceed on merit. It is so ordered. MWANGA J JUDGE. 13/11/2024 COURT: The ruling was delivered at Dar es Salaam in chambers on 13 November 2022, in the presence of Mr. Said Kivuyo Adv for the petitioners and the First Respondent in person. MWANGA JUDGE 13/11/2024 12