20120608 TZHC Arusha

I • IN THE HIGH COURT OF TANZANIA ATARUSHA CIVIL CASE NO. 23 OF 2011. 1. MRS ERO YDREOS . } . . . . . . . . . . . . . ...... PLAINTIFFS 2. MS. ANGELIKI LILA YDREOS VERSUS 1. USA LIMITED ........................................ 1ST DEFENDANT 2. ANTHONY@ TONY GEORGE CHRISTIANAKIS .................................. 2ND DEFENDANT __, 3. THERESSA J. CHRISTIANAKIS ............... 3RD DEFENDANT 4. MANYATTA COFFEE ESTATE LIMITED ... 4™ DEFENDANT 5. LEON P. CHRISTIANAKIS ...................... 5™ DEFENDANT RULING. SAMBO,J. On 23 rd day of April, 2012, when this case came for mention, the learned advocate, Mr. Maro, whose legal chamber and that of MIS Mrosso and Associates Advocates, represent the defendants, submitted to the effect that the parties have settled the matter out of court and the settlement deed was filed in court on the 18th April, 2012, and instantly its copy was served upon the learned advocate, Mr. D'Souza, for the Plaintiffs. Right there, the learned advocate, Mr. D'Souza, told this court that the said terms of settlement are 1 not really settlement, his clients are not satisfied. The case was adjourned to 2nd day of July, 2012, for orders. On 29th May, 2012, the learned counsel of Mrosso and Associates Advocates, wrote this court requesting that the intentions of the parties to this case be honoured for the interest of justice and that the said settlement be recorded in respect of the law. This letter was copied to his learned friends of D'Souza and company Advocates, who vehemently opposed arguing that his clients are not satisfied with the settlement. Thereupon, I ordered that the case come for mention today in order to hear both parties on the issue. In presence today for the defendants were the learned counsel, Mr. Mgoha, Mr. Mrosso and Mr. Mwanga. As usual, the learned counsel, Mr. D'Souza, appeared for the plaintiffs. Mr. Mgoha, submitted in detail requesting this hounorable court to record the settlement as justice delayed is justice denied and that his learned friend, Mr. D'Souza, is applying delay tactics for no good cause. In response, Mr. D'Souza, repeated his aversions that his clients are not satisfied with the settlement. He further did request that the trial judge do disqualify himself from handling this case because one of his sons, an advocate, is among the employed advocates, working with Maro and Co. Advocates, one of the chambers representing the defendants. 2 In rebuttal, the learned counsel for the defendants submitted to the effect that there's no good cause for the learned trial judge to disqualify and that those are part of the reasons employed by Mr. D'Souza, to delay the end of justice in this case. It's their considered opinion that this case was instituted in July, 2012, and ' all the time Mr. D'Souza, didn't subinit th~t the learned judge do disqualify himself, till when they wanted the honourable court to honour the agreement reached by the parties. In order to cement their point of view, the learned advocates cited the decisions of the Court of Appeal in the following cases: Mwita Chacha and 4 others Vs. Republic, MZA Criminal Revision No. 1 of 2007, at Dar es Salaam, (unreported), Joseph Chuwa and Another Vs. Republic, Criminal Appeal No. 75 of 2006, at Arusha, (unreported), at page 11, of the typed judgment of the court, Laurean G. Rugaimukamu Vs. Inspector General of Police and the Attorney General, Civil Appeal No. 13 of 1999, at Dar Es Salaam, ( unreported) and Registered Trustees of Social Action Trust fund and Another Vs. Happy Sausages Ltd and others (2004) T .L.R. 264. In Mwita Chacha and 4 others, the Court of Appeal of Tanzania, referring to Rule 2C (1) of the Code of Conduct for Judicial Officers in Tanzania, stated thus:- 3 "(]) A Judicial Officer should disqualify himself in a proceeding in which his impartiality might be reasonably be questioned, including but not limited to the instances where: (a) he has a personal bias or prejudice concerning a party or personal knowledge offacts in dispute; (b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law serviced during such association as a lawyer concerning the matter or the Judicial Officer of such lawyer has been a material witness in the matter; (c) he knows that he individually or as a judiciary or his spouse or minor child residing in his house hold, has a financial interest or any other interest that could be substantially affected by the outcome of the proceeding; (d) he or his spouse, or a person related to either of them or the spouse ofsuch person; (i) is a party to the proceedings, or an officer, director or trustee of a party; (ii) is acting as a lawyer in the proceedings; (iii) is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings; 4 (iv) is to the Judicial Officer's knowledge likely to be a material witness in the proceedings". In Joseph Chuwa and Another Vs. Republic, the Court of Appeal of Tanzania, held that a judge or magistrate can only disqualify himself under the following circumstances:- " One, if there is evidence of bad blood between the litigant and the judge concerned. Two, if the judge has 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". The above circumstances were previously held by the Court in the case of Laurean G. Rugaimukamu Vs. Inspector General of Police and the Attorney General, Supra, in which the Law lords observed and directed that, "A judge or a magistrate should not be asked to disqualify himself or herself for a flimsy or imaginary fears". In the case of Registered Trustees of Social Action Trust fund and Another V. Happy Sa~sages Ltd and others, Supra, the Court of Appeal held further that:- "(iii) the test for apparent bias is whether the alleged circumstances would lead a fair minded and informed 5 observer to conclude that there was a real possibility that the court was biased". This being the law, as settled by the highest court on the land, in the instant matter, there is no scintilla of light to reveal that any of the abov~ stated circumstances are relevant. The bias occupying the mind of the learned advocate, Mr. D'Souza, is absolutely based on a flimsy or imaginary fears which doesn't in any way entitle a judge or magistrate to disqualify himself. This request is therefore rejected and dismissed in its entirety with costs. At this juncture, I now examined the settlement reached between these parties in the mediation conducted by Mr. Anthony F. Gross, a registered mediator based in Nairobi, Kenya, filed in this court on the 18th day of April, 2012, dated the 13th day of December,2011. On the part of the plaintiffs it's duly acknowledged and signed by ANGELIKA LILA YDREOS (2 nd Plaintiff) and ERO CHRISTIANAKIS YD REOS, (the 1st Plaintiff). On the other part, all the defendants did as well, acknowledge and signed. I don't see the base of Mr. D'Souza's submission that his clients are not satisfied with the settlement. If they were not satisfied, they would not have acknowledged and signed the same. I think and believe that what Mr. D'Souza is saying in this case here, is not sanctioned by the plaintiffs. The learned counsel is objecting the record of this agreement for his 6 \ \ ,. own interests and certainly to delay the end of justice in this matter, pending the fulfillment of his own desires. Now that both parties to this case have duly acknowledged and signed the deed of settlement filed in this court on the 18th day of April, 2012, I am satisfied that the present suit has been wholly adjusted by the said agreement and order that the AGREEMENT· be recorded, which I do, and pass a decree in accordance therewith so far as it relates to this suit, under the provisions of Order XXIII Rule 3 of the Civil Procedure Code, CAP. 33 R.E. 2002. It's accordingly ordered. K.M.M. SAMBO JUDGE 08/06/2012 Delivered in chamber this 8th day of June, 2012, in the presence of Mr. D'Souza, learned advocate for the Plaintiffs and Mr. Mwanga, Mrosso and Mgoha, learned counsel for the Defendants. K.M.M. SAMBO JUDGE 08/06/2012 7