20060615 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 117 OF 2004 ..,,,;_. . . ST LUCAS J. ROGE .•••••••••••••••••:.;l•·,•••••••••••••••••••••••••••• 1 PLA.INTIFF ',, f ' ND . JOSEPH AMULIMA ••••••••••••••.• ; ••••.•••••••••••••••••••••••• 2 PLA.INTIFF VERSUS PERMANENT SECRETARY MINISTRY OF HOME AFFAIRS .......................... 1 ST DEFENDANT THE ATTORNEY, GENERAL. ................................ 2No l;)EFENDANT . RULING Mlay, J. · The plaintiffs instituted a suit against the PRINCIPAL SECRETARY MINISTRY or HOME AFFAIRS and the ATTORNEY ,. GENERAL for illegal termination of employment. The Defendants filed a Written Statement oft-'.,. !Defence as well as a notice of . . . . '-II'\ Preliminary objection. The preliminary objection raised is that: "1. The pleadings filed by the plaintiffs are in violation of order VI rule 15 of the Civil Procedure Code Act No. 49 of 1966 which require pleadings and a verification clause to be signed and bear dates. " The parties were granted leave to file written submissions on the preliminary objection. In the written submissions fixed ob behalf of the 1st and 2nd defendants, ,:! ,, the State Attorney quoted the provisions of Order 6 rule lS(}fof the Civil Procedure Code, which i' states as fol lows: 1 " 15(3) The verification shall be signed by the person making it and shall state the date Q(J, which and the place at which it was . :jr·, . . f:•_']''' ~.· . signed" The learned State Attorney Submitted that looking at the Amended Plaint, the Plaintiffs did not state the date and place at which the Amended Plaint was signed. He contended that the object of verifying pleadings is to fix a party verifying, responsibility for the statement it contains. He submitted that the plaintiffs failed to do so, as per the mandatory requirement of Order 6 Rule 15 which makes the Amended Plaint incompetent in the eyes of the law. For the above reasons the Defendants prayed that the matter be dismissed ;! l with costs. / t ·;.' ; ..:.;t ; On behalf of the plaintiffs Mr. S,B.M. Chamriho advocate conceded that "in signing the amended plaints the place and date as required by Order VI rule 15(3) of the Civil Procedure Code were not shown. He however contended that this is a procedural irregularity which can he corrected and that .in itself the irregularity does not make the plaint incompetent in the eyes of the law." Mr Chamriho cited two Ugandan cases to buttress his contention. The first case is SAGCU Vs ROADMASTER (Co) Ltd 2002 IEA (CAU) in which the said the court of Appeal for Uganda.; ~onsidering an application to dismiss an application which was supported by an undated affidavit, held that any irregularity in the form of the affidavit ca not be allowed to vitiate an affidavit, in view of the existence of an article in the 2 constitution, which stipulated that substantive justice shall be administered without regard to technicalities. Mr Chamriho went an to state that the Court of Appeal ~f Uganda went further to adopt and approve a holding in another case NAMJIBHI PRABHUDAS AND COMPANY LIMITED VS STANDARD BANK (1968) EA to the effect ,:_\J:(: that: "The court should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of most fundamental nature. Matters of procedure are not normally of a fundamental nature." Mr. Chamriho further quoted from another Ugandan Case of Re CHRISTINE MATOVU TEBAJJOKIRA 1992 - 1993 HCB, 85 that: "The administration or.}/Jstlce should normally require that substance of disputes should be investigated and decided on their merits and errors and lapses should not necessarily debar a litigant from the pursuit of his rights" Mr Chamriho submitted that although the cases are not bending on this court, they may be of persuasive authority. He invited this court to be moved by these authoritie,. as they deal with substantially an issue similar to the issue of dating pf pleadings. He further cited the decision of this court (Mkwawa) in Nyowi Vs M/S HAULE AND COMPANY ADVOCATES (1996) TLR where his lordship observed that: 3 ''Procedural rules are intended to serve as hand maiden of Justice and not to defeat or frustrate it .......... " Mr. Chambariho prayed that the omission of dating the plaint is a curable defect and that it should not be used to defeat justice. , i ; ,.·{., : :;>Y ~ It has not been disputed that the verification of the plaint filed by the plaintiffs does not "state the date and the place at which it was signed", as required by the provisions of Order 6 rule 15(13) of the Civil Procedure Code, 1966. The requirement to state the date and the place at which the verification was signed is mandatory because the word ''sha//"preceeds that requirement. The only issue is what the consequences of non compliance with the mandatory provisions of sub rule (3) of rule 15 of Order 6, are. The Defending have argued that the plaint is rendered incompetent and liable to be dismissed. On the other hand,.the Plaintiffs have argued that the ·.:.-.1' · mission is a curable irregularity and at any rate such an omission should not be relied upon to defeat justice. Rule 15(3) does not provide the remedy or consequence for non compliance. The answer to the issue, in my considered opinion, can be found within the provisions of Order 6 itself. Rule 15(3) of Order 6 which has been relied upon by the Defendants comes before rule 17 which states as follows: "17 The court may at any stage of the proceedings allow either party to alter or amend his pleacfings in such a manner and on such 4 terms as may be Just, and all such cammendments shall be made as _may be necessary for the purpose of determining the real questions in controversy between the parties. " This court is of the firm view that although the verification of the plaint filed by the plaintiffs offends the provisions of Order 6 Rule 15(3), the shortcoming can be ,temedied y resorting to the provisions of Rule 17 of that order. ,The consequences canvassed by the defendants would in my view be considered if the plaintiff after being given the opportunity to amend the pleadings, the plaintiff fails to do so within the time stipulated under rule 18 and if the court declines to grant an extension of time in accordance with that rule. The authorities cited by Mr Chamriho have not been made available to this court and Mr. Chamriho did not argue that the decisions were based on the interpretation of a provision of law in pari material with Order 6 Rul~ i5(3). I I am therefore unable to ~-~.:...- say whether or not they are o(persuasive ,, value on the issue under ·" consideration. What is clear however, is that the provisions of Order 6 rule 15(3) are mandatory and cannot be treated as a mere technicality which can be ignored by any party or by the courts of law. However, since the omission can be remedied by giving the offending party the opportunity to amend the pleadings persuat to rule 17 of Order 6, the suit cannot be dismissed without first giving that plaintiff then opportunity. 5 .... -~-w ,_·;;~,t . For the above reasons the preliminary objection is premature and it is accordingly overruled. The plaintiff is allowed to amend the plaint to supply the date and place of the signing of the verification of the plaint. The amended plaint to be file within seven (7) days of this order. It is ordered accordingly. l~~ JUDGE Delivered in the presence of the 1st plaintiff and in the absence of the 2nd Plaintiff and the Defendants the 18th day of June, 2006. JUDGE 1slo612006 t,J. 6