RULING Moraf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 7631 OF 2024 CASE: REF:202404081000007631

BETWEEN MORAF PHARMACEUTICAL LIMITED.......................................... PLAINTIFF

VERSUS MWAFRIKA PHARMACY LIMITED..............................................DEFENDANT RULING: 22 Oct & 1st Nov 2024 KIREKIANO; J, The plaintiff herein sues the defendant for payment of the Tanzania Shillings One Billion and Forty-Six Million One Hundred and Twenty-Eight Thousand and Fifty (TZS1,046,128,050.00), the outstanding amount for the supply of pharmaceuticals and surgical equipment. The plaintiff also claims interest, costs, and other relief deemed fit. This ruling is in respect of the preliminary objection raised by the plaintiff's counsel against the defendant's written statement of defence that; 1 The Written Statement of defence is bad in law for contravening Order VIII Rule 1 (1) (2) and (3) of the Civil Procedure Code (CAP 33 R.E 2019. For coherence purposes, it is appropriate to recap briefly on a series of events culminating in the objection. It is common ground that the defendant, advocate Mr Stanislaus Kitimbo, was served with a summons to file the Written Statement on 23/04/2024, prepared the Written Statement of Defence and filed the defence on 16/05/2024. On 16.7.2024, when the suit came for the first pre-trial conference, the plaintiff's counsel, Miss Saidiye Rifay, raised a point on the legality of the written statement of defence, to the effect that when the same was prepared by the defendant’s counsel, Mr Stanslus Kitimbo, he had not renewed

his practising licence, thus making the written statement of defence defective under Section 34 (1) of the Advocates Act CAP 341 [R.E 2019]. The defendant's counsel, Mr Kitumbo, conceded to the objection. This court struck out the same; Mr Kitimbo prayed that the defendant be allowed to file a proper defence. The prayer to file proper defence was granted without objection; it appears that upon reflection, the plaintiff came back again, posing the objection above; that is to say, the same was filed out of 2 time under Order VIII Rule 1 (1) (2) and (3) of the Civil Procedure Code CAP 33 [R.E 2019] Miss Saidiye Rifai, a learned advocate, represented the plaintiff in arguing the objection, while Mr Stanslaus Kitimbo represented the defendant. Citing this court decision in Kiko Rajabu Koko Vs Bakari RAJABU KIKO (Misc. Land Case Application 1 of 2019), Miss Rifai's line of argument was that given the time limitation as per Order VIII Rule 1, (3) of The Civil Procedure Code (CAP 33 R.E 2019), the defendant should have sought an enlargement of time to file a Written Statement of Defense upon demonstrating sufficient cause for the delay, the plaintiff would have been heard and challenge the “application” instead of merely by just seeking leave to refile while out of mandatory statutory time. She cited MONDOROSI VILLAGE COUNCIL & 2 OTHERS VS. TANZANIA BREWERIES & 4 OTHERS CIVIL APPEAL

NO—66 OF 2017 CAT - ARUSHA (UNREPORTED arguing that the overriding objective could not salvage the defendant in this. On his part, the defendant's counsel responded unusually briefly; thus, 1. The objection is bad in law out of the fact that no party to this case is known as MORAF PHARMACEUTICAL. 3 2. . The objection is bad in law out of the fact that no statute in the law that exists in the manner of Order VIII Rule I (1), (2) and (3) of the Civil Procedure Code (CAP 33RE 2019). WHEREFORE, Defendant prays that Plaintiff’s suit be dismissed in its entirety with costs. In her rejoinder, Miss Rifay argued that though the defendant raised a counter-objection, it did not cure his defective written statement of defence, that it was filed after the time limit as provided for under Order VIII Rule 1 (1) (2) and (3) of the Civil Procedure Code CAP 33 R.E 2019. Additionally, with regards to clerical errors in the name of the defendant, while posing the objection, she invited this court’s attention to the principle of overriding objective under Sections 3A and 3B of the Civil Procedure Code CAP 33 R.E 2019, which is further explained in the High Court case of Ramadhani Sembejo Mongu Vs. Musoma Municipal Council & 3 Others, Misc. Civil Application No 19 Of 2022 (Unreported), Where Mtulya J held that the principle has to be transacted to parties and justice stakeholders for easy

administration of justice in this State. On my part, with regards to the point at issue, there is no dispute that under Order VIII rule 1 (1) (3 of the Civil Procedure Code Cap 33, a written statement of defence shall be filed within twenty-one days from the date of 4 service of the summons, file to the court a written or with such time as may be extended by the court under VIII rule 1 (1) (3), by the court statement of defence and enter an appearance on the date. According to the record of this court, on 16.7.2024, the defendant prayed to be allowed to file a proper defence since the previous one was found defective. The prayer was made orally in the presence of the plaintiff's counsel and was not contested. This court granted the prayer, and the defendant was given seven days. It is to be noted that oral applications are permissible under Order XLIII Rule 2 of the CPC. In this case, having entertained the prayer and granted the same the way it happened, an objection can not be entertained on the defence filed in the event of an order of the court. This is because this court becomes functus official to deliberate on its own decision. With that observation, I find that this objection is misconceived. Before ending this ruling, I wish to remark on two aspects: One, there can not be an objection against an objection. Where a part raises a preliminary objection in the proceeding,

the court is enjoined to determine the same on merit unless the other part concedes to the same, and the court will make appropriate orders. The other party is restrained 5 from such acts that will pre-empt the same, and as such, the party is equally restrained from posing another objection before the objection is determined. This position was elucidated by the court of appeal in Mary John Mitchel v. Sylvester 12 Maghembe Cheyo and Others, Civil Application No. 161 of 2008 (unreported), where it was emphasised that; "This Court has said in a number of times that it will not tolerate the practice of an advocate trying to pre-empt a preliminary objection either by raising another preliminary objection or rectifying the error complained of". In this case, the objection against the plaintiff's objection is unprocedural; it can not be entertained here. I will thus end here on this with confidence that the court's decision in Mary John Mitchel v. Sylvester on this aspect is well understood by the defendant's counsel. Two, the defendant's written submissions were as indicated above; it was expected that the defendant’s counsel would assist this court by giving thorough research on the subject at issue. Submissions are alternatives to oral arguments; this is now a common practice in this court. I note that no specific rules or guidelines govern their format, style, length or

procedure. Be it that way at any standard, the few sentences, as indicated above, are far below the expected standard. 6 In an Akin state of affair this court in the case of GERVAS MASOME KULWA v THE RETURNING OFFICER AND OTHERS [1996] TLR 320 (HC) Mackanja, J: emphasised that; Submissions to court must contain reasons and basis for legal and factual propositions put forward by learned counsels as officers of the court; the five-sentence document submitted on behalf of the appellant does not constitute any written submissions as required by the court. Having cited that instructive excerpt to the defendant's counsel, I will thus end here and hold that the plaintiff's objection to the defendant's written statement of defence is misconceived; the same is overruled.

A J KIREKIANO

JUDGE 1.11.2024 7 COURT: Ruling delivered in presence of Miss Saidiye Rifay for the plaintiff and in absence of the defendant.

A J KIREKIANO

JUDGE 1.11.2024 8