20111219 TZHC Moshi

IN THE HIGH COURT OF TANZANIA AT MOSHI MICELLANEOUS CIVIL APPLICATION NO 25 OF 2011 ORIGINATING FROM HIGH COURT OF MOSHI AT MOSHI CIVIL CASE NO 1 OF 1991 NEW KILIMANJARO BAZAAR LIMITED ........................... APPLICANT VERSUS THE BOARD OF TRUSTEES OF NSSF ................. RESPONDENT RULING MUGASHA, J On 16th May, 2011, Mr E. Mwaluko learned Counsel for the applicant wrote me a letter alleging that, the Decree Holders do not have faith and trust in my continued presiding over execution proceedings in Civil Case No 1 of 1999. As such, Mr. Mwaluko asked me to disqu_alify ....... ' myself from the matter and prayed the requisite case file be placed before another Judge or the District Registrar (DR) in order to have the matter finalised in terms of the Deed of Settlement (hereinafter referred to as Deed). The letter was copied to His Lordship the Chief Justice of Tanzania; District Registrar, High Court of Moshi; Director General NSSF and R.K Rweyongeza and Company Advocates. Considering the seriousness of allegations questioning my integrity as a Judge in conduct of this matter, Mr. Mwaluko was ordered and did 1 file a formal application seeking my disqualification· in the conduct of the matter. The application is sought under section 2(3) of the Judicature and Application of Laws Act Cap 358 RE: 2002, sections 68(e); 95 and Order XLII rule 2 of the Civil Procedure Code Cap 33 · RE.2002. The affidavits of Mr.Mwaluko and Mr. Victor Massawe are in support of the application. The application is resisted by the respondent vide the counter affidavits of Chieldrick Jaribuni Komba Chief Counsel of the respondent and Mr.Rweyongezo learned Counsel for the respondent. During the hearing of the application, Mr. Mwaluko asked the -court to adopt his affidavit and the affidavit____of_ M\,\/aluko, Victor Massawe and reply to the counter affidavits of Mr. Rweyongeza and Mr. Chieldrick Komba as part of his submission in this application. In paragraphs 16 and 17 of Mr Mwoluko's affidavit, and vj ~<- paragraphs 13, 23 and 29 Mwaluko' s reply to the Mr. Rweyongeza' s A counter affidavit, Mr. Mwaluko alleges that, I have interest in the matter because am not being happy with settlement for questioning interest of 12% instead of 7%. As such, instead of registering the Deed I ordered parties to enter appearance and address the court on a subject unknown to Mr. Mwaluko. Moreover, he is complaining that, by the said order, the court has departed from the original order. Besides, Mr Mwaluko also alleges bias because I took over the conduct of the matter from the DR in 2 ... suspicious circumstances. In paragraphs 19-20 of Mwaluko's affidavit, he is alleging to have been denied audience on 12/4/2011 and on 11/5/2011. Mr. Mwaluko further contends that, on 11/5/2011, he came to court late and the court could not wait for his arrival. According to Mr. Mwaluko, the said trend of events made his : ,r> client to loose trust and confidence in the Judge who is conduct of f the matter and they believe that justice cannot be done to them. Mr. Mwaluko relied on the decision of the Court of Appeal in the case of Kishore Vallabdas Liladas and Another vs. SMZ (2001), TLR 167 in which the Court of Appeal at Pg l 73 Paragraph 2, held: "An a/legation of bias against a judge or magistrate is a serious matter, and the Judge or magistrate concerned cannot take it lightly. The allegation may be completely unfounded to the knowledge and belief of a Judge. But that does not lessen the need to act with great care in reaching to the allegation. Because what matter is not so much what the Judge knows or thinks or feels about the allegation. Rather it is what the person making the a/legation thinks or believes or feels. It is important that those who come to court to have their disputes adjudicated upon have confidence in the court. The existence of bias or apprehension of its existence in the court seriously undermining that confidence. In the light of this, we think that where bias has been alleged, then unless there be very good reasons it is prudent for the judge or magistrate concerned to step down, not to insist on hearing 3 the matter. To insist on hearing the case gives the impression that, the Judge has or might have personal interest in the matter even though in fact he does not. It is important to remember that justice should not only be done but should manifestly be seen to be done''. Also Mr Mwaluko relied on the case of Zablon Pangamaleza vs. Joachim Kiwaraka and Another (1987) TLR 140 where the Court of Appeal at page 141 - Paragraph 2 held as follows. "The safest thing to do for a Judicial Officer who finds his integrity questioned by litigants or accused person before him is to give the benefit of doubt to his irrational accusers and retire from the case, unless it is quite clear that the accused is employing delaying tactics. Apart from ensuring that justice is seen to be done he serves himself from unnecessary embarrassment." Basing on the said authorities Mr. Mwaluko contends that, since there is no good reason known to the applicant that make parties to depart from the Deed filed in court, the applicant is habouring a reasonable fear that they cannot get justice from the Judge in conduct of the matter. In reply, Mr. Rweyongeza resisted the application and urged this court to adopt his counter affidavit and Mr. Chieldrick Komba's counter affidavit as integral part of his submission. 4 . In paragraphs 36 and 39 of the counter affidavit, Mr. Rweyongeza denies to have had conversation with Mr. Mwaluko on the Judge in conduct of the case not being happy with the interest of 12% instead of 7%. In the alternative, Mr. Rweyongeza contends, the same to be respondent's complaint and ground of complaint in the Memorandum of Review of the decision of DR which imported 12% as court rate. In terms of paragraphs 40 of the counter affidavit of Mr. Rweyongeza 's he has inter alia deponed to have been directed by Mr. Mwaluko to address me as follows and I quote: " ..... .Mwambie huyu Jaji wako asicheze no kesi hii. Atajiweka kwenye matatizo" This order was repeated over and over again. The learned advocate asked me if I knew of a person called Stephen Mworia, I said I have heard his name. He said his clients have very high connections and it is through Ramadhani Dau the Director General of NSSF, he told me tell the Judge to be careful". In terms of paragraph 41 of Mr Rweyongeza's counter affidavit, Mr. Mwaluko repeated the directive thrice insisting the Judge in conduct of the case to be careful with this case. Pertaining to Mr. Victor Massawe's affidavit, Mr. Rweyongeza contends the same to be a cooked story in order to give credence to Mr. Mwaluko's story which is false. 5 . . In his submission, Mr. Rweyongeza argued that, the court did not depart from its original order and what is imperative is the opportunity availed to parties to address the court. However, the applicant did not want to listen to court, he pleads bias and seeks the file to be transferred to the DR or another Judge in order to have the Deed registered. Mr. Rweyongeza argued this to be an abuse of court process and good cause for this court's intervention. Challenging Mr. Mwaluko's complaint on not being aware of respondent's second reflection, Mr. Rweyongeza submitted that, in terms of paragraph 8 of Mr Komba' counter affidavit, the Deed does not save the interest of NSSF being a public corporation which Is indicative of there being an issue which is an indication that, all that glitters is not gold. As such, Rweyongeza maintained, this court as fountain of justice has a duty to summon and hear parties in order to satisfy itself if parties consented to the Deed. According to him, that is not going outside parameters. Mr. Rweyongeza relied on the case of Ibrahim Said Msabaha and Nelson Lutta Civil Appeal No. 4 of 1997 (CAT) DSM (Unreported) at Pg 5 where it was held: "It is well established principle that parties are free to compromise their right save if it is in violation of rights or public policy or law". According to Mr. Rweyongeza the principle in Msabaha 's case invites this court to intervene in any compromise where there is a 6 ... violation of a right, public policy or law. As such, it is not strange for this court to order parties to address the court to satisfy itself if there is no such violation. On the execution proceedings, Mr. Rweyongeza submitted, the same to have commenced not before the Judge but DR and what was happening in the office of the DR is stated in paragraphs 3 to 7 of the counter affidavit questioning execution on basis of two Garnishee Orders and in particular the second Garnishee Order at a sum of Tshs. 1,004,435,543/= which includes tshs. 251,494,147 /= the sum payable to respondent by the applicant who is the Decree Holder. Commenting on authorities relied on by Mr. Mwaluko; Mr. Rweyongeza argued that, they are not applicable in the case at hand because, the applicant wants escape and evade the law. He was of the view that, this is sound ground for intervention by this court which is duty bound to administer justice. Furthermore, Mr. Rweyongeza argued, the complaint that justice will not be done is unfounded because the applicant is the decree holder and no one has taken away applicant's decree. Thus, for the interest of justice, he argued that, there is ground for court to be addressed on the Deed and the application must be dismissed with costs. In conclusion, Mr. Rweyongeza denied to have drawn the Deed as purported in the Deed filed in court. 7 .. In rejoinder, Mr. Mwaluko argued that, paragraph 8 Mr. Komba's counter affidavit on respondent's "second reflection" on the Deed is not valid as the respondent ought to have lodged a separate application. When Mr. Mwaluko was asked on who in particular drew the Deed, he conceded that, Mr. Rweyongeza was not involved in drawing the Deed and Mr. Mwaluko told this court that he is the one who drew the Deed in good faith receiving verbal instructions from Mr. Komba and the Deed was approved by the Board of Trustees of NSSF. Furthermore, Mr. Mwaluko contends that, Msabaha's case is not applicable because the respondent is not alleging that, the Deed is an abuse of court process, or violates law or public policy. .(:f-R I have given considerable thoughts to submissions made by both " counself and what is contained in the affidavits and counter affidavits and reply to the counter affidavits. I have following ..fkP remarks: 1. The allegation that the file was transferred from the DR to the Judge in conduct of the matter in suspicious circumstances is not true. As Judge In charge, I intervened as Judge In charge after the DR on his own motion and in absence of the parties ~- ordered an increase on,.,._, sum to be executed from Tshs 734,964,179 /=to a sum of Tshs. 1,004,435,543 which included a tf--'-- sum of Tshs of 251,494, 147 payable to respondent by the /- Decree Holder. This was a; resulti of a complaint lodged by Mr. 8 C.J Komba on behalf of the NSSF Director General vide a letter ref: NSSF/HQ/C.03/4/B/11 dated 2/12/2010, inter alia/ questioning tasis on rs-sue of a second Garnishee Order whose f- ,_ calculation was reached without involving the parties. Besides, Mr. Mwaluko's allegation is an afterthought because he never complained on 4/1/2011 when parties where required to enter appearance on 11/2/2011 and address court on the validity of execution proceedings before the DR. Instead, by conse~ parties requested time to settle the matter out of court. 2. The complaint that, the applicant cannot obtain justice 1s unfounded because the applicant is the Decree Holder pursuant to an award by the Court of Appeal in Civil Appeal No 69 of 2007and this court has no power whatsoever to vary or alter the decree. Mr. Mwaluko is aware of this fact but has deliberately fabricated a lie, misleading his client so as to antagonise the court. 3. Mr. Mwaluko's allegation that, the Judge in conduct of the case is not happy with the interest of 12% instead of 7 % is not true. The same is a ground in respondent's Memorandum for Review filed in court on 8/12/2010, after the issue of a second Garnishee Order on 26/10/201 0.Mr. Mwaluko is aware of this ._tp fact, but has deliberately opted to cook a story which is a pure f' lie. 9 • 4. Pertaining to the conversation in .Tango between the learned counsels on the issue of interest, as rightly pointed out by Mr. Rweyongeza, I had personally neither met Mr. Rweyongeza nor knew his face before he appeared before me during the hearing of this application. Mr. Mwaluko has conveniently decided not to make a categorical response which evidences that, Mr. Mwaluko is a liar and has no proof on what he is alleging. 5. The allegation on the Judge departing from the original order is unfounded because law and prudence requirej parties to address the court before the Deed is registered. The opportunity was availed but it was deliberately not heeded to by the applicant and his counsel and the court is not at fault. ,\--\;ul- 6. Mr. Mwaluko's complaint that, he is not aware on subject of I' addressing the court sounds very queer. Mr. Mwaluko knows that what is before the court is the Deed and that is a subject of address pursuant to my order dated 11.4.2011. Besides, in the event Mr. Mwaluko concedes to have on several occasions perused the case file that tells he regularly saw the Deed and it H-e is not true that Mr. Mwaluko is not aware of subject of I' addressing this court. 10 . 7. Furthemore, Mr. Mwaluko's complaint on not being aware on subject of addressing this court while he is conceding to have been late in court on 11 /5/11, demonstrates sheer negligence on his part. As such, he must blame himself for the negligence and failure to properly represent a client instead of fabricating lies aimed creating antagonistic tendency against the court. Besides, asking court to wait for late comers as it is the case for Mr. Mwaluko amounts to transacting court business according to whims of some personalities which cannot be condoned by this court. 8. Regarding threats to me uttered by Mr. Mwaluko vide Mr. Rweyongeza; it is very unfortunate that, the learned advocate instead of pursuing the case before the court of law resorted to deploy intimidating tactics against the Judge in conduct of the case. I wish to remind Mr. Mwaluko that, this is a court of law bound by the Constitution of the United Republic of Tanzania, 1977 and the law and not status or high connection of the parties. Moreover, I shall deal with this aspect at a later stage of the Ruling. Having said the above, the point for determination is whether there is proof of bias warranting disqualification of the Judge from the conduct of the execution proceedings. 11 The facts of this application can be distinguished from Kishore s Vallabdas Liladas and Zabron's cases (~upra) cited by Mr. Mwaluko. In the present case, it is quite clear that, the applicant and their counsel are abusing the court process by refusing to address ~urt I\ on the deed and instead seek to have the matter transferred to another judge or DR to have the Deed registered as it is. Besides, it is my considered view that, if the opportunity to be heard was utilised, that could have also addressed what Mr. Mwaluko considers being respondent's second reflection on the Deed instead of lodging a separate application which is unnecessary duplication aimed at wasting precious time of court. Moreover, it is imperative to point out that, the principles of disqualification of judicial officers in Kishore and Zabron's case cited by advocate Mwaluko have been superseded by other Court of Appeal decisions. The principles have been set out in the cases of Laurean Rugaimukamu vs. Inspector General of Police and another, Cat Civil Appeal No 13 of 1999 (unreported) and The Registered Trustees of Social Action Trust Fund and Two others vs. Messrs Happy Sausages Limited and 11 others, CAT Civil Appeal No 70 of 2002 (unreported). The two decisions lay down the current position of the Court of Appeal on the issue of bias considering recent s C development in the <tommonwealth countries. I' 12 In the case of Laurean Rugaimukamu (supra) it was held that: "An objection against a Judge or Magistrate con legitimately be raised in the following circumstances, One, if there is evidence of bod blood between the litigant and the Judge concerned. Two, if the judge hos close relationship with the adversary party or one of them. Three, if the judge or member of his close family hos on interest in the outcome of the litigation other than the administration of justice. A judge or Magistrate should not be asked to disqualify him or herself for imaginary fears;' In the application under scrutiny, none of the above circumstances exist and it is vivid that, this application does not meet the tests in Rugaimukamu's case. As such, the allegations contained in Mr. Mwaluko's letter and affidavit are ill founded considering the circumstances obtaining in this application where the applicant and his counsel are all out to abuse the court process so as to have the .ij-.A-- d eed registered without heeding to court Order dated 11/4/2011. J,.. In the case of Registered Trustees (supra) the test of alleged bias pertaining to a judge is to ask the question: "Whether or not these circumstances would lead a fair minded and informed person to conclude that there was a real possibility that the learned trial judge was biased_: 13 The Court of Appeal made a following observation: "In our context such observer should be aware of our court procedures; the role and function of a trial judge in adjudicating case. He should be aware of interlocutory proceedings during trial and that an aggrieved party can always appeal to the higher echelons in the court hierarch¼" In the case under scrutiny, the decree holder has the award of the Court of Appeal. Before this court is the decree which cannot be reversed court. Therefore, considering the circumstances of the execution proceedings, allegations of bias from a stand point of a fair minded and informed observer, I am of considered view that, there is nothing tending to reflect bias on the judge and there is no evidence whatsoever. Circumstances which can force a Judicial Officer disqualify herself or himself are now well elaborated in the recent case of Mwita Chacha and 4 Others vs. the Republic CAT Criminal Revision No 1 of 2007;(Unreported) MZA,the court of appeal relied on Rule 2C (1) of the Code of Conduct for Judicial Officers in Tanzania which states: (1) A Judicial Officer should disqualify himself in a proceeding in which his impartiality might be reasonably questioned, including but not limited to the instances where: 14 a. he has a personal bias or prejudice concerning a party or personal knowledge of facts 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 household, has a financial interest that could substantially be affected by the out come of the proceeding. d. He or his spouse, or a person related to either of them or the spouse of such person: i. Is a party to the proceedings, or an officer, director or trustee of a party; ii. Is acting as a lawyer in proceedings; iii. Is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings; iv. Is the Judicial Officer's knowledge likely to be a material witness in the proceedings" In the application under scrutiny, none of the above circumstances stated in the Code of Conduct for Judicial Officers exist and it is vivid that, allegations contained in Mr. Mwaluko's letter and affidavits are misconceived considering the circumstances obtaining in this 15 . application. I fully subscribe with what the Court of Appeal reiterated in Mwita 's case at page 15 of the Ruling that: " ....... Judicial officers should not on the flimsiest of pretext . disqualify themselves from hearing cases. This will cause unnecessary burden to other judicial officers to whom the cases will be subsequently assigned". I am not at odds with the principle laid in Msabaha's case that parties are free to compromise. However, refusal to address court and seeking the transfer of the file to another judge or DR to have the Deed registered is an abuse of court process. This constitutes ground for court's intervention by invoking section 95 of the Civil Procedure Code which categorically provides: "Nothing in this Code shall be deemed to limit or otherwise affect inherent power of the court to make such orders as may be necessary for the ends of justice or prevent abuse of process of the court" Thus, before the Deed is registered the court has to be addressed in order to satisfy itself if the compromise is not in abuse of court process or violative of the law or public policy as it was reiterated in Msabaha's case. Besides, after parties are heard the court will have opportunity to consider inter alia the alleged respondent's second reflection who currently does not want the Deed to be registered as filed. In the event, parties are yet to address court on the deed, Mr. 16 l'l . Mwaluko's argument on non- existence of evidence that, the Deed is not violative of the law or public policy and the argument is very premature and misplaced for the time being. I have deemed it imperative to remark on Mr. Mwaluko's unbecoming behaviour in this matter on the following aspects: Firstly, while Mr. Mwaluko is complaining on the Deed not being registered, the requisite copy Deed has not been annexed to letter seeking my disqualification so as to enable those copied with the letter to know the true status. For reasons best known to Mr. Mwaluko he annexed his letter dated 9th February, 2011,which entirely varies with the Deed. I am of considered view that, Mr. Mwaluko who admits to have perused the court file before writing the letter, ought to have unveiled the truth. However, he never revealed the truth and he was all out to mislead this court and all those copied with letter seeking disqualification of the Judge in the conduct of the matter. Secondly, Mr. Mwaluko's resort to deploying intimidating tactics against the Judge instead of pursuing his case in a court of law and in terms of the law acted highly unethical and unprofessional. Thirdly, Mr. Mwaluko conceding to have used the name of Mr. Rweyongeza as one of those involved in drawing the Deed is not only a criminal offence but also a subject for investigation in the Advocates Disciplinary Committee. 17 Mr. Mwaluko's behaviour is likely to tarnish the image of the noble practising profession. I wish to remind Mr. Mwaluko that, he is in a noble profession which cannot be nurtured or thrive by lies, deploying intimidating tactics against a Judge and creating antagonism as between the parties and the court. In view of the foregoing reasons, I find that, the application has not at all advanced grounds to warrant the judge to step down from the conduct of the execution proceedings. I find no merit in this application which is dismissed with costs. S.E. MUGASHA JUDGE 19TH DECEMBER, 2011. 18