20160425 TZHC Mbeya

do

IN THE HIGH COURT OF TANZANIA

AT MBEYA LAND CASE NO. 11 OF 2014 NDINGO INTERNATIONAL ...•................. PLAINTIFF

BUSINESS LINK COMPANY LIMITEDJ

VERSUS RICHAARD MWAMBIPILE1 JOHN ESSAU ................,....... DEFENDANTS 3, DANIEL RABANI J

RVLING Date of last Order: 1810412016 'Date of Ruling: 2510412016 A.F. NGWALA, J. The Ruling emanates from the Preliminary Objection on the Point of Law that has been raised by the learned Advocate for the Plaintiff Mr. T. Mbise. His objection is against the Defendant's joint Written Statement of Defence which offends Order VI Rule 15 (1), (2) and (3) of the Civil Procedure 'Code [CAP. 33 R. E. 20021. It is contended that the said document was not verified and or dated, hence or it is fatally defective. 1 k - The learned Counsel cited several case laws as well as the said Rule 15 (1), (2) and (3) of the Civil Procedure Code [CAP. 33 R. E. 20021 to cement his arguments. In reply the Defendants conceded on the raised defectiveness of the Written Statement of Defence. They submitted in their joint reply to the written submission in support of the Preliminary Objection that they had mistakenly not verified and dated their joint Written Statement of Defence. Therefore they prayed the court to exercise its discretion to grant leave for amendment of the Written Statement Defence. They insisted the court to take into consideration that a pleading in issue if struck out, Defendants shall stand unheard and suffer irreparable loss due to the technicalities. The Defendants argued that they shall have no legal option as per authorities cited by the learned Counsel. Where as if the Plaint is

struck out a person has legal opportunity to reopen the case. For this reason they prayed for this honourable court to exercise its powers discretionary. The Defendants based their arguments on Order VI Rule 17 of the Civil Procedure Code [CAP. 33 R. E. 20021, together with Article 107 (A) (2) (e) of the Constitution of the United Republic of Tanzania which insists on courts of law to solve controversy of cases and avoid legal technicalities. They also cited the case of Nimrod Elirehema Mkono vs. State Travel Services Ltd & Masoo Saktay (1992) T. L. R. 24 (CA) which stated that ". justice should always be done without undue regard to technicalities." The case of N. I. N. Mnuo Ng'uni vs. Judge Incharge (1998) T. L. R. 464 was cited by the defendants to fortify their argument. In the light of these authorities, the defendants prayed for leave of this court to allow them to amend their Written Statement of defence. Upon reading the submissions by the parties in this case particularly on the issue of technicalities as cited by the defendants who have cited Article 107 (2) (e) of the Constitution of the United Republic of Tanzania which states that:- "In delivering Decisions in matters of Civil and Criminal nature in accordance with the laws, the court shall observe the following principles, that is to say:- (a)

......................... (b)........................ ........................ .......................... To dispense justice without being tied up with technicalities provisions which may obstmct dispension ofjustice." The issue to be determined by the court is whether or not failure to verify and date the pleadings is fatal or can be cured under technicalities. Mr. Mbise, the learned Counsel raised his objection basing on Order VI Rule 15 (1), (2) and (3) which states that:-. "Rule 15 Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by me of the parties pleading or by some other person proved to the satsification of the court to be acquainted with the facts of the case. The person verifying shall specify, by reference to the numbered paragraph of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." This provision of the law moved this court to peruse the said document titled, "Defendant's Joint Written Statement of Defence." In the impugned joint Written Statement of Defence, it is clear that on the face of it, it was neither dated nor verified at all. 4 In consideration of the requirement of the

above cited law, it is obvious that the law puts the mandatory requirement of verifying and dating the pleading in order to form and move the court to act on the same as court document. On the other hand as pleaded by the defendants that the defect could be cured or treated as a technical issue and hence be rectified, this court made observations on an Italian legal writer, Maulo Kapereto who stated that: - "Procedure is not a pure form of law. It is meeting point of ideas found in the society on how justice can be dispensed. It is a reflection of conflicts and ideas in the society relating to administration of justice. It is a cape of good hope where all parties expect to get justice. Accordingly therefore, the rules that lead to the acquiring of the justice should be clear and plain. The courts therefore have a duty of reflecting societal needs. In order to effectively reflect these needs, the ought to construe the rules of procedure plainly (but the rules may lead to the cape of wrath where a litigant is not complying with a rule of procedure; he/she will not get justice). Justice therefore contains hope of aspirations as well as disappoints if you fail to comply with the technicalities." - According to Maulo Kapereto, courts should construe and apply procedural laws liberally and plainly. The courts should avoid technicalities as it is reflected in our Constitution.

This was also stated in the case of South East British Insurance Ltd vs. Talijee (1953) E. A. 210 that, "In deciding appeals courts should endeavor not to allow technicalities to cause failure to justice; courts should rather address the substance of the matter (appeal)." See also Iron & Steel Wires vs. Matyre 2 Co Ltd (1956) exch. The avoidance of technicalities but to deal with the substance of the matter is not lost in vein. Several Judges and Justices of Appeal accept that procedural provisions of statutes should be interpreted liberally by adopting citation flexibility. In our jurisdiction the same was adopted in case of Nimrod Mkono vs. State Travelling Services Ltd & Another (1992) T.L.R. 24, The Court of Appeal of Tanzania stated that, "...jus.tice should always be done without undue regard to technicalities by the court." It is crystal clear that procedural technicalities, however, do not mean abandonment of relevant procedural provisions of the law. Where there is any legal provision requiring the party to a suit to do something, then such a party is obligated to comply with it, and the court is enjoined to make sure that what the law requires to be done is done strictly. Failure to follow the strict provisions of the statute amounts to violation of law, and it is not avoiding technicalities of law. In the case of Mohamed Enterprises Tanzania ltd vs. Masoud Mohamed

Nesa, Civil Application No. 33 of 2012 the Court of Appeal of Tanzania (unreported) at Dar Es Salaam. In which the Court was addressed in terms of Article 107(2) (e) of the Union Constitution was stated that the Article do not in any way subjugate the power and intention of relevant provision of Laws and Rules of procedure dully enacted. In fact the later (Statutory provisions of law) obtained therein validity from the very provisions of the Constitution." Technicalities which courts or parties are allowed to avoid are like titles of documents and or the ones not in dispute, that failure to mention the chapter of the law cannot render the application void as it was held in the case of Mwl. Paul John. Mhozya vs. AG (1996) F. L. R. 229, where in that case the document which was filed in court was titled Plaint instead of Constitutional Petition. Samatta, J: proceeded to determine the matter on merit on the ground that titling of the pleading/document in the court is a matter of technicality, the court is enjoined to avoid. 7 In the instant suit, as I stated earlier that the document purported to be a written statement of defence by the defendants was not verified and/or dated, hence offends the provisions of Order VI Rule 15 (1), (2) and (3) of the Civil Procedure Code, CAP. 33 R.E. 2002 respectively. This omission is fatal, hence it make the document defective. As discussed

critically herein above in the general issue of technicality of which the defendants seemed to base their argument, I would like to repeat here that in order to make things clear. "In our considered view that Article 107 (2) (e) of the Constitution do not in any way subjugate the power and intention of relevant provisions of the Laws and Rules of procedure dully enacted. In fact the later (Statutory provisions of the laws) obtain their validity from the very provisions of the constitution. (emphasis is mine). It therefore must be understood that the dully enacted procedural statute is not a technical matter which the parties and the court are allowed to avoid but they must follow them strictly. Therefore from the foregoing discussion and the analysis my conclusion on this is that the preliminary objection raised by the Plaintiff's Counsel in respect of Order VI Rule 15 (1), (2) and 8 .0 (3) of the Civil Procedure Code [CAP. 33 R. E. 20021 remains to be a pure point of law of which the Defendants ought to have complied with. Accordingly the joint Written Statement of Defence is struck out with costs. Order Accordingly. A.F. NGWALA

JUDGE 25/04/2016 Again, I in this suit, as I was proceeding with the case, the 4th defendant, prayed on behalf of other defendants that I should withdraw myself from the conduct of the suit because according to him on 22/02/2016, I had already determined this suit. Before, I give my decision on whether to disqualify myself from entertaining this suit or not as requested by the defendants, I would like to give few remarks on the general issue of disqualification as a Judge. It is true that Judges and Magistrates have power to self disqualification from discharging their judicial duties to which their impartiality might be in question. In the Tanzania Lawyer's Journal (2008) 1 JTLS at page 23 and 24, disqualification of a Judge or Magistrate from hearing a matter a in the court of law is arising from three main reasons; namely no man should be a Judge in his own cause, which means that no human being can decide against his interest. The second reason is being to make the justice to be seen to have been done, and the third reason being to afford the parties a fair trial; as it bases on the law and justice alone. In the case, of Localbail UK Ltd vs. Bayfield Properties Ltd (2000) QB, among other things it was stated that:- "In any case of personal embarrassment or of automatic disqualification, Judges or Magistrates should resque themselves at the earliest possible stage." The

factors that would usually be relevant for disqualification are; personal friendship between the Judges or magistrate and members in the society and who are involved in the case. Close relationship between the presiding Judge or Magistrate with one party to the matter at hand and it is expected that the subsisting relationship will influence the decision on the matter; and when the Judge or Magistrate presiding the matter previously have given their opinion on it, and lastly where there external pressures of the decision on the matter and it is believed that the presiding judge or magistrate will be able to overcome the pressures existing upon him. 10 a in the instant case the parties are maintaining reasons which are outside the scope of disqualification by a judge in entertaining the suit. It is principally that in the entire process of disqualification, Judges and Magistrate must do so in compliance with the established laws. They should not disqualify where the laws and the prevailing circumstances do not warrant them to do so. However, in the interest of justice and for the interest of the parties to this suit, as they have raised the point of no confidence with me, I find it proper to disqualify from entertaining this suit in order to maintain the doctrine of Public confidence to Judiciary. More so to ensure that justice is not only seen to be done but it must be done. Order Accordingly. Nei A.F. NGWALA

JUDGE 25/04/2016 11