National Bank of Commerce Limited vs CATS Tanzania Limited Civil Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 140 OF 2023 NATIONAL BANK OF COMMERCE LIMITED……....………………….PLAINTIFF VERSUS CATS TANZANIA LIMITED………………………....………………… DEFENDANT RULING Date of Last Order: 12/08/2024 Date of Ruling: 23/09/2024 A.A MBAGWA, J. This ruling is in respect of an application for recusal from the conduct of this case that was brought by the defendant’s Managing Director one Mr. Mohamed Hameer. On 24/05/2024 through a letter with Ref: CATS/NBC/2024/01 dated 19th May 2024 Mr. Mohamed Hameer registered his complaints against me. He requested me to recuse myself from presiding over this matter saying that he was not confident with me. In essence, the prayer for recusal was predicated on the following five grounds: 1 (i) The court's order to strike out the duly lodged original reply to written statement of defence which related to the preliminary objections raised by the defendant was ultra vires; (ii) The court’s order granting extension of time for the plaintiff to file a fresh reply to written statement of defence favored the plaintiff; (iii) The court’s failure to punish the plaintiff’s Counsel namely, Mr. Beda Kapinga who being a legal officer of the Court failed to serve the defendant with the original Reply to written statement of defence; (iv) Failure of the successor Judge to assign reasons for taking over the case file which was previously presided by Hon. Judge Mussa Kassim Pomo; (v) The defendant’s belief that this court will not do justice to her because it insinuated withdrawal of the defendant’s preliminary objections with threat that when he dismisses the same it will be with costs. To appreciate the nitty-gritty of the matter, I deem it pertinent to provide the background of the matter albeit in brief. On the 7th day of November 2023, the parties appeared before me for the first time after the matter was re-assigned to me following the transfer of my predecessor Hon. Pomo J. The matter was mentioned for necessary orders. The plaintiff was represented by Mr. Beda Kapinga, learned 2 advocate whilst the defendant appeared through Mr. Matojo Cosatta learned advocate as well. Mr. Matojo raised an objection against the reply to the written statement of defence on the ground that it was neither dated nor signed. In reply, Mr. Kapinga readily conceded to the objection. Consequently, this Court struck out the reply to the written statement of defence for being defective. Shortly thereafter, Mr. Kapinga prayed for an extension of time to file a proper reply to the written statement of defence. Mr. Matojo, on behalf of the defendant, resisted the prayer saying that the plaintiff’s counsel had not advanced sufficient grounds for an extension of time. Upon consideration of the rivaling prayers and the circumstances of the matter, I invoked my discretionary powers and granted the plaintiff a leave to file a proper reply to the written statement of defence. The plaintiff was therefore given three days to file the reply to the written statement of defence. It should be noted that earlier on, the defendant had on the 25th day of August 2023 filed the written statement of defence along with a notice of preliminary objection containing thirteen (13) points of preliminary objection which were yet to be argued. 3 Thus, on the 9th day of November 2023, the plaintiff filed the reply to the written statement of defence. In addition, the plaintiff filed a notice of preliminary objections against the written statement of defence. However, on the 18th day of March 2024 when the matter came for mention, Mr. Joanes Konda, learned counsel for the plaintiff prayed to withdraw the notice of a preliminary objection that was raised in the reply to the written statement of defence. The prayer was welcomed by Mr. Matojo Cosata, learned counsel for the defendant. The notice of preliminary objection raised by the plaintiff was thus marked withdrawn. Thereafter, Mr. Matojo prayed to the Court to argue the preliminary objections against the suit by way of written submission. The prayer was granted and the Court proceeded to set the filing schedule. Nevertheless, on the 31st day of May 2024 when the matter came up for a ruling on the preliminary objection, Mr. Matojo, learned counsel for the defendant informed the Court that his client had filed a complaint letter requiring me to recuse myself from the conduct of this case. Further, Mr. Matojo quickly told the Court that he was not at one with his client in that move. To use his own words, Mr. Matojo Cosatta said; 4 ‘My Lord, I am aware that my client has written a complaint letter requesting you to recuse from this case. However, I wish to register my position that I am not in agreement with him.’ As the rule of thumb requires, on the 12th day of August 2024 both parties were availed of an opportunity to address the Court on the defendant’s application for recusal. As hinted above, at the outset, Mr. Matojo Cosatta, purportedly indicated that he was not supporting his client hence he left Mr. Mohamed Hameer to argue the application on his own. However, in due course, it was unfolded that the said counsel was behind the move. This Court observed Mr. Cosatta busy preparing talking notes and supplying the same to Mr. Mohamed Hameer during the hearing. I should pause here and remark that Mr. Cosatta’s conduct is unprofessional and uncalled for. There was no reason to lie to the Court that he was not supporting the recusal because it was the defendant’s right to bring the application if he thought he had a genuine reason. Indeed, Mr. Cosatta’s behavior was tantamount to ridicule on the Court. From what was exhibited in the courtroom, it goes without saying that not only was Mr. Cosatta behind the application 5 for recusal but also he was the one who advised his client and prepared a complaint letter asking me to recuse. Submitting in support of the recusal application, Mr. Mohamed Hameer, Managing Director of the defendant told the Court that the reasons for the recusal were contained in the complaint letter. He submitted that it is a common principle that justice should not only be done but it must be seen to have been done. He insisted that, in the interest of justice, I should recuse from hearing the case as the case belongs to him. He forcefully argued that it is his constitutional right to have a fair hearing. On the adversary, Mr. Beda Kapinga, learned counsel for the plaintiff strongly dismissed the defendant’s allegations. He urged the Court to be guided by the established principles in relation to the grounds for recusal. He vigorously submitted that no firm grounds for recusal had been put forward by the defendant. He expounded why, in his opinion, there were no reasons for the trial Judge to recuse. To fathom his position, Mr. Beda cited the cases of Isack Mwamasika and 2 others vs CRDB Bank Limited, Civil Revision No. 6 of 2017, CAT Dar es Salaam and Mwesigwa Zaidi Siraji vs Mara Textiles Limited, Civil Case No. 53 of 2021, HC 6 Dar es Salaam on page 13. Mr. Beda stressed that there were no substantial grounds for recusal. In his brief rejoinder, Mr. Mohamed Hameer maintained that since the defendant has no confidence in the Judge, then, the Judge must recuse himself. Having canvassed the defendant’s complaints and rival submissions, the germane issue for determination is whether the complainant has advanced sufficient grounds for recusal. I took time to read the defendant’s letter requesting my recusal and the rival submissions by both parties. Without much ado, as per the established principles, no sufficient grounds were put forward to justify the recusal. It should be noted that recusal is not required simply because the judicial officer decided against the party nor can a recusal be made on the ground that the judicial officer made statements to the parties in explaining court procedures and consequences of non-compliance with the same. The Court of Appeal in the case of Golden Globe International 7 Services & Another vs Millicom Tanzania N.V & Another (Civil Application 195 of 2017) [2017] TZCA 193 made a detailed holding which I find instructive in matters pertaining to the grounds for recusal. It held: ‘Recusal or disqualification is a tenet of the law intending to promote the fundamental principle of Judicial impartiality and confidence in the administration of justice... We said that in order for the judge to disqualify himself/herself there must be sufficient convincing reasons before he/she disqualifies himself from a suit...It is always tempting for a judge against whom criticism are 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 sense of grievance if the decision is going against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hear the case will feel that, if he loses, he is in some why been discriminated against. But is important for the judge to resist the temptations to recuse himself simply 8 because it would be more comfortable to do so ... It is our considered view that it would be an abduction of judicial function and encouragement of spurious application for judicial officer to adopt the approach that he/she should disqualify himself or herself whenever requested to do so on application of one of the parties.’ [emphasis added] The above-quoted authority has nailed it to the fullest that, for a judicial officer to recuse himself from handling the matter, there must be convincing reasons and that, recusal just to give comfort to the parties, is an abdication of judicial duties. It is therefore worthwhile to note that it is part of my substantive duties to decide on every matter that comes before me as a Judge. It has also been emphasized that a judicial officer must not lightly accede to unsubstantiated allegations. See the case of Mwesigwa Zaidi Siraji vs Mara Textile Limited, Civil Case No.53 of 2021, HC Dar es Salaam (unreported). Going through the allegations advanced by Mr. Hameer, there is nothing to substantiate the existence of an inability on my part to adjudicate without consideration of extraneous matters, prejudices, or predilections. 9 Instead, a cursory glance would tell that Mr. Hameer is dissatisfied with my orders striking out the reply to the written statement of defence and subsequently granting an extension of time to the plaintiff to file a proper reply to the written statement of defence. It is therefore my considered findings that the defendant’s complaints are bereft of merits and hence liable for dismissal. As I wind up, I find it apposite to refer to the Code of Conduct and Ethics for Judicial Officers which is a blueprint on the grounds for recusal. Rule 9(1) and (2) of the Code of Conduct and Ethics for Judicial Officers, 2020, G.N. No. 1001 of 2020 provides; 9.-(1) 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; 10 d) served as a lawyer in a matter in controversy or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter or the judicial officer or such lawyer has been a material witness in the matter; (2) Disqualification is not appropriate if: a) the matter giving rise to the perception of a possibility of conflict is trifling or would not support a plausible argument in favour of disqualification; or b) no other judicial officer can deal with the case or because of urgent circumstances, failure to act could lead to a miscarriage of justice; c) upon disclosure of the ground(s) of intended recusal by the judicial officer, the parties agree that the judicial officer may participate in the proceedings. The consent by the parties or their representatives shall be recorded and shall form part of the record of proceedings. (Emphasis is mine) Admittedly, the allegations raised by the defendant are trifling and flimsy, to say the least. The defendant’s unfounded allegations lead me to the 11 conclusion that the defendant is pressing for my recusal as a forum shopping expedition. See also Golden Globe International Services & Another vs Millicom Tanzania N.V & Another (supra). Notwithstanding the above, borrowing a leaf from the wisdom of the Court of Appeal in the case of Kishore Vallabhdas And Another vs. SMZ, Criminal Appeal No. 80 1999, CAT at Zanzibar (unreported), I am opined that it is prudent to withdraw myself from the conduct of this matter. In view thereof, I hereby excuse myself from handling this case. The case file will therefore be remitted to the Hon. Judge In Charge for reassignment. It is so ordered. Dated at Dar es Salaam on 23rd September 2024. A.A. Mbagwa JUDGE 23/09/2024 12