GG Refinery v RO Water

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 5223 OF 2024 GG REFINERY LIMITED….……..………………….……..…….……PLAINTIFF VERSUS RO WATER SA (PTY) LIMITED………………..…………………….DEFENDANT RULING June 28th, 2024 & August 9th 2024 Morris, J The plaintiff instituted this suit praying for judgment and decree of the Court against the defendant for several reliefs the major of which is payment of USD 50,945.35/= being costs for sourcing of the Wastewater Treatment Plant. However, the defendant filed his written statement of defence (WSD), containing a preliminary objection (PO). The PO was premised on three (3) points of law: that the suit contravenes the mandatory provisions of Order VII Rule 1 (f) of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC); the suit is bad in law for contravening the provisions of Order VII Rule 1 (i) of the CPC; and, this Court has no jurisdiction over this claim. 2 The defendant further filed a notice of additional PO with two points of law namely, the plaint is bad in law for contravening section 84A of the Interpretation of Laws Act, Cap. 1 (pleadings in English version to have a Swahili translation); and, the plaint is bad in law for contravening the mandatory provisions of Rule 4(1)(a) and (b) of the Interpretation of Laws (Use of English in Courts) (Circumstances and Conditions) Rules, 2022 (the Rules). That is, the corresponding translation of pleadings in Kiswahili language should state the grounds as to why proceedings should be conducted in English language. Hearing of the PO was through written submissions. The defendant was represented by Mr. Gerald Shita Nangi while the plaintiff was under the representation of Mr. Makaki Masatu. At the instance of the defence, grounds of the PO raised in the WSD were argued together on the reason that they are intertwined. He commenced by quoting the provisions of Order VII Rule 1 (f) and (i) of the CPC. Those provisions require the plaint to contain facts showing that the court has jurisdiction and a statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court fees, so far as the case admits. 3 To buttress this position, the counsel made reference to cases of Lucas Mallya v Mukwano Industries Limited, Commercial Case No. 60 of 2004; Arusha Art Limited v Alliance Insurance Corporation Ltd, Commercial Case No. 12 of 2011; Godfrey Enock Mkocha v Twiga Papers Products Ltd, Land Case No. 132 of 2012; St. Bernad’s Hospital Company Limited v Dr. Linus Mlula Maemba Chuwa, Commercial Case No. 73 of 2011; and Ahmed Chilambo v Murray & Roberts Contractors (T) Ltd, Civil Case No. 44 of 2005 (all unreported). He argued further that, paragraph 28 of the plaint was perhaps the closest and relevant to have complied with the provisions of the law stated above. He was however of the view that, the same does not meet the requirements of the law. According to him, the recited paragraph was a mere magical clause which could not cure the fatality of defect. To bolster this position, he made reference to the case of Assanand and Sons (Uganda) Ltd v East African Records Limited [1959] EA 360. The counsel also submitted that the plaint did not contain a statement as to the value of the subject matter per Order VII Rule 1(i) of the CPC. To him, this Court is left with the duty of searching the value of the subject 4 matter in order to determine its jurisdiction. Therefore, he prayed for the suit to be struck out with costs for failure to adhere to the mandatory provision of the law. Reference was made to unreported cases of Christopher Derek Kadio v Heaven Origenes Mtui and Others, Land Case No. 81 of 2017; Jamal Said and Others v Karmal Aziz Msuya, Land Case No. 42 of 2017; Sued Hamis Chemchem v First National Bank (T) Ltd, Land Case No. 94 of 2017; Joshua International Ltd v Mpale Kaba Mpoki, Civil Case No. 467 of 2002; and China Pesticide (T) Limited v Safari Radio Limited, Commercial Case No. 170 of 2014. Regarding the additional PO, each point therein was argued distinctly. For the 1st point, it was argued that the language of the courts is Kiswahili pursuant to section 84A (1) of the Interpretation of Laws Act, Cap. 1 (the ILA). It was further submitted that, Rule 3 of the Rules outlines circumstances where a party can use English language. Rule 4(a) of the Rules was also cited to the extent that, pleadings filed in English language must be accompanied with corresponding translation in Kiswahili. Thus, according to the counsel, the plaintiff herein did not comply with the 5 provisions of the law stated above, since his plaint was filed without the corresponding Kiswahili translation. He as well argued that, the provisions of section 84A of the ILA and Rule 4(a) of the Rules are couched in mandatory terms by using the word “shall”. Regarding the mandatory nature of the word “shall”, reference was made to section 53(2) of the ILA, as well as the case of Godfrey Kimbe v Peter Ngonyani, Civil Appeal No. 41 of 2014. Regarding the requirement to file two versions of pleadings, reference was made to the case of Ammany Construction Company Limited v Makudo Egineering Company Limited and 2 Others, Civil Case No. 32 of 2023 (both unreported). On the 2nd point, it was submitted that, Rule 4(b) of the Rules requires a party wishing to initiate proceedings in English language to also file corresponding version in Kiswahili language. Thus, it was the counsel’s assertion that, the plaintiff has failed to comply with this requirement. Consequently, he prayed for the PO and dismissal of the suit with costs. The plaintiff’s counsel contested the submissions of the defence. Firstly, he argued that the said submissions violated Rule 66 (2) of the High 6 Court (Commercial Division) Procedure Rules, 2012, G.N. No. 250 of 2012 as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019 (the Commercial Court Rules). To the plaintiff, while Rule 66 (2) of the Commercial Court Rules requires submissions not to exceed 10 pages, the defendant’s submissions herein were in excess of such limit. He referred to KCB Bank Tanzania Limited v Sunlon General Building Constructors Ltd & Others, Commercial Case No. 73 of 2013 (unreported). In the foregoing case, this Court cited with approval the decision in Ernest Nduta Nyororo v NBC & Another, Commercial Case No. 1 of 2015 (unreported); and rejected and expunged from the court’s record the defendants’ written submissions which were beyond the page-limit. Thus, the plaintiff craved for this Court to reject and expunge the defendant’s impugned submissions and proceed to dismiss the PO in its entirety. Second, he submitted that the Court had no power to grant the remedy sought by the defendant. To him, this Court lacked the mandate to strike out a suit on the reason that the plaint thereof did not contain a statement indicating the court’s jurisdiction over a suit. 7 Further, in regard to the first limb of the PO on violation of the provisions of Order VII Rule 1(f) and (i) of the CPC; it was asserted that the same is unfounded in law and facts. The counsel contended that facts showing the court’s jurisdiction and value of the subject matter are well pleaded in paragraphs 3 and 28 of the plaint. That, the said paragraphs have pleaded sum of USD 50,945.35 being costs for sourcing Wastewater Treatment Plant. He also submitted that to ascertain jurisdiction of the court, the whole plaint ought to be looked at. To fortify this position, reference was made to the cases of Investment House Ltd v Webb Technologies T. Ltd & Others, Commercial Case No. 97 of 2015 and Allawi Rajabu Kassimu v. Effatha Bank Ltd and Others, Commercial Case No. 115 of 2019 (both unreported). For the PO on the use of English/Kiswahili, the plaintiff’s counsel contested them jointly. He hastily argued that such PO is untenable in law. To him, section 84A of the ILA allows the use of English language. Further, the Rule 4(2) of the Rules provides for circumstances and conditions under which English language may be used in courts. He went on to argue that, 8 the duty to ensure that pleadings are filed in accordance with the law is upon the court during admission under rules 3 and 4 of the Rules. It was his additional submissions that, not every infraction of procedure is incurable. Instead, the Court should consider how the other party has been prejudiced by the complained infraction. To bolster this position, he made reference to the cases of Fatuma S. Bassebe v Jason Mutagulwa Rwiza, Civil Appeal No. 4 of 2021; Ibrahim Pius Kagansha & Another v Bera Karuma & Another, Land Appeal No. 8 of 2022; Ammany Construction Company Limited v Makudoi Engineering Company Limited & 2 Others, Civil Case No. 32 of 2023 and, Zahara Kitindi & Another v. Juma Swalehe and 9 Others, Civil Application No. 4/05 of 2017 (all unreported). In the cited decisions above, it was held that not every non-compliance with the procedural law vitiates the proceedings, especially if no prejudice is occasioned to the adverse party. Further, the said cases applied the principle of overriding objective under sections 3A and 3B of the CPC. Thus, he prayed for dismissal of the PO with costs. 9 Inversely, the defendant’s counsel did not let the proceedings rest without his rejoinder submissions. According to him, the plaintiff’s prayer for the defence submissions to be expunged was to be rejected outrightly. He argued that the excess in pages was not a fatal irregularity. He insisted that, the submissions which exceed 10 pages can be rectified by ordering the defendant to file submissions that conform to the requirement of rule 66(2) (f) of the Commercial Court Rules. To buttress this position, he cited the case of Sunlon General Contractors Limited and 2 Others v KCB Bank Tanzania Limited, Civ. Appeal No. 253 of 2017 (unreported). He also rejoined that the omission to state facts showing jurisdiction and statement of value is fatal and the remedy is to strike out a plaint with costs. Further reference was made to Chemchem and Another v First National Bank (T) Limited, Land Case No. 94 of 2017 (unreported). Moreover, he submitted that the defendant was prejudiced because the pleadings in Kiswahili would ensure accessibility and fairness in legal proceedings. He thus, prayed for striking out of the suit with costs. 10 I find it necessary to first address the concern raised by the plaintiff as to the format of the defendant’s main submissions supporting the PO. It is his assertion that, the defendant’s submissions in chief are in violation of the mandatory provisions of rule 66(2) of the Commercial Court Rules in the sense that, he exceeded the 10 pages statutory maximum limit. Although the plaintiff has not specifically stated actual number of the pages in excess, the defendant has impliedly conceded the alleged defects. The defendant’s focus is however, on the consequences upon which such irregularity can pose. While the plaintiff’s position is to have the impugned submissions rejected, expunged from record of the court and eventually to have the PO dismissed; the defendant emphasises that he should be ordered to rectify the subject submissions accordingly. The basis for such remedy, per the defendant is that, the omission is not fatal and that, rejection of his submissions is tantamount to denial of the defendant’s right to be heard in respect of the PO. My meticulous read of rule 66(2) of the Commercial Court Rules lands me to the parties’ duty to file legal documents in conformity with rule 19 of the same Rules. As such, the rules are meant to be read together. 11 The legal documents as per rule 66(2) above, include written submissions like it is the case in the matter at hand. Rule 19, however, provides for format of pleadings presented for filing in this court. Sub rule (1) requires the pleadings to be in paragraphs, “Times New Roman” font type, twelve font size, 1.5 line spacing and in no more than ten pages. When construed conjunctively, the two rules [66(2) and 19] subjects written submissions to the same 10-page limit. Here and now, the critical question is in regard to the appropriate remedy for failure to comply with the requirements under rules 66(2) and 19 of the Commercial Court Rules. According to sub rule 2 of rule 19 (supra), the remedy available is for the court to reject the documents concerned. Nevertheless, the rule is silent on the remedy after such rejection. On this, case law has laid down the way forward. I have taken time to consider the cases cited by both parties particularly, the KCB Bank’s case (supra). From the cited case, the defective written submissions were rejected and expunged from record. On appeal, the Court of Appeal faulted this Court’s for such approach. Consequently, it was held that the defect is not fatal. That is, there is a room for rectification. 12 Therefore, this Court’s position in this regard is accordingly adjusted in line with the principle of precedent. As the law stands currently, the remedy for a defective legal document rejected under rules 66(2) and 19 of the Commercial Court Rules is an order for rectification. In this connection, the meek plea of the defendant’s counsel is justifiable. That being the position therefore, in answer to the question raised, I hold that, the remedy available for defective legal documents including written submissions under rules 66(2) and 19 (supra) is for the court to reject such documents and/or an order for rectification. Accordingly, the impugned submissions are a fit case for such remedy. Nevertheless, it is my considered view that allowing such approach at this juncture, is tantamount to halting the ruling in respect of the PO pending rectification of a nonfatal defect herein. Consequently, after rectification the matter will be pending writing of the ruling afterward. The outcome of the ruling aside, such step will delay parties to access the due justice. In my view, such approach defeats the spirit of expeditious dispensation of justice expected of this Court, in particular. Further, the concern is also a technicality which is abhorred by the overriding objective principle under 13 Rule 4 of the Commercial Court Rules read together with sections 3A and 3B of the CPC. Thus, for the foregoing reason and analysis, I condone the defects herein and proceed to determination of the PO on merits. I have also carefully considered the pleadings, the PO and the counsel’s submissions in support and opposition of the PO. The determinant issue is whether the PO is meritorious. Concerning the 1st limb of the PO, it is the defendant’s argument that, the plaint is in violation of Order VII (1) (f) and (i) of the CPC. Specifically, the defendant has asserted that the plaint does not disclose facts showing this court’s jurisdiction. Further, the plaint has not disclosed value of the subject matter of the suit. Hence, this court lacks jurisdiction to entertain this suit. In opposition, the plaintiff has insisted that, paragraphs 3 and 28 of the plaint read together, contain both, a statement of facts showing the court’s jurisdiction, as well as value of the subject matter of the suit being USD 50,945.35. To him, for one to ascertain jurisdiction hereof the whole plaint ought to be looked at. Indeed, paragraph 3 of the impugned plaint discloses that the claimed amount is as stated above (USD 50,945.35). This figure is as well reflected in paragraphs 25 and 26 thereof. Also, paragraph 28 of the plaint indicates 14 that, “the cause of action arose in Geita, Tanzania, the suit arose out of commercial transaction and the amount claimed falls within the pecuniary jurisdiction of this Honourable Court”. Thus, looking at the plaint herein as a whole, it is obvious that, the transaction complained of is in respect of a Service Level Agreement between the parties herein (paragraph 4) which is alleged to be breached by the defendant thereby resulting to the plaintiff’s loss at USD 50,945.35. I should also state that, in my view, the objective of Order VII Rule (1) of the CPC is to legislate the minimum content of the plaint. It does not, therefore, compel the plaintiff to arrange such content chronologically. I so hold because if such requirement was necessary, the law would have provided for the format with a corresponding compulsive rule the plaint must substantially be in the provided format. Furthermore, the statement of value subject of the present PO is, in law, “for the purposes of jurisdiction and of court fees”. It is my further view that, now that the defendant in the case at hand is not challenging the jurisdiction of the court, stricto sensu, he is appreciative of the reality that the plaint has indeed disclosed necessary pleadings establishing the legal mandate of this Court. The first limb of the 15 purpose is accordingly discharged. Further, by the mere reality that the present suit was filed after the payment of applicable fees, it is conclusive that the registry section of this Court was able to calculate and determine the applicable fees. Likewise, as the PO herein is not in relation to the nonpayment or payment of inadequate court fees, the mischief intended to be cured by the law is accordingly healed. The above examination therefore, leads to a conclusion that the plaint has disclosed both, facts showing the court’s jurisdiction, as well as, value of the subject matter of the suit for purposes of this court’s jurisdiction and fees. Hence, this ground of the PO lacks merits and is accordingly overruled. The other part of the PO relates to use of English and Kiswahili languages. Regarding the first point thereof, it is the defendant’s stance that, the under section 84A of the ILA and Rule 4(a) of the Rules; pleadings filed in English language must be accompanied with corresponding translation in Kiswahili. Similarly, in regard to the 2nd point of the PO, the defendant maintains that, Rule 4(b) of the Rules requires a party wishing to initiate proceedings in English language to also, file corresponding version in Kiswahili language. Thus, according to the defendant, the plaintiff herein 16 did not comply with the provisions of the law stated above since his plaint was filed without the Kiswahili version. However, the plaintiff disputes this argument. He contends that, the omission is curable. That is, it cannot vitiate proceedings. He adds that, the defendant is not prejudiced due to such omission anyhow. Several cases were relied upon as shown above. 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 17 upon which the case is hinged are all in English. It thus defeats logic if only the documents to be translated are the pleadings and no equal scale of compulsion to have the translated version of the annexures. On this regard, I am also guided by what was laid down in the cases cited by the plaintiff, particularly the Fatuma S. Bassebe’s case (supra). Therefore, guided by the above laid down principles and in view of the overriding objective principle (under Rule 4 of the Commercial Court Rules read together with section 3A and 3B of the CPC), I find no merits on this PO as well. As such, the same is also overruled. For the foregoing reasons, the PO is dismissed in its entirety for want of merits. Costs to follow the main suit. It is so ordered. C.K.K. Morris Judge August 9th, 2024 18 Ruling delivered this 9th day of August, 2024 in the presence of Messrs. Makaki Masatu and Jerry Msamanga, learned advocates for the plaintiff and defendant respectively. C.K.K. Morris Judge August 9th, 2024