PERFECT MACHINERY 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 17293 OF 2024 PERFECT MACHINERY LIMITED........ .......... PLAINTIFF VERSUS RAPHAEL LOGISTICS (T) LIMITED............................................. DEFENDANT RULING S.M, MAGHIMBI, J: TTiis ruling follows a preliminary objection raised by the defendant on point of law that: 1. the suit is bad in law for contravening the mandatory provisions of Rule IV l(a)&(b) of the interpretation of Laws (The use of English Language in Court) Circumstances and Conditions Rules, 2022, G.N No. 66 of 2022 ("the Rules") and Section 84(a) of the Interpretation of Laws Act, Cap. 1 as amended by the Written Laws (Mise. Amendments Act) No. 1 of 2021 ("the Act"). 2. The suit is bad in law for contravening with Order VII Rule 1 (e)&(i) of the Civil Procedure Code, Cap 33 R.E 2019 ("the CPC"). i On the date of the hearing of the objection, Ms. Tausi Mzee, learned Advocate represented the defendant while Mr. Heri Zuku, learned advocate, represented the plaintiff. In supporting the first point of objection, Ms. Mzee submitted that Section 84(a) of the Act is clear that the language of the court is Swahili. But Rule 4(l)(a)&(b) of the Rules has provided for conditions as to where English may be used in initiating matters in court. She elaborated that there are two conditions provided, the first one is the party who wants to use English language in court has to file his pleadings in English language with their corresponding translations in Swahili language. The second is that the party has to state the grounds upon which he relies to have the proceedings conducted in English language. She then argued that the plaintiff in this case failed to comply with the mandatory provisions of this rule despite the fact that the nature of this case fall within the circumstances provided at the schedule of the Rules. It is about monetary issues which are within this law. To support her argument, she referred the court to the case of Godfrey Kimbe Vs. Peter Ngonyani, Civil Appeal No. 41 of 2014 whereby at page 13, the Court of Appeal held that where in a written law the word "shall" is used it means that the provision is mandatory and has to be complied with. She further cited the case of Amani Constructions Co. Limited 2 Vs. Makudo Engineering Company Limited and 2 others, Civil Case No. 32 of 2023, from page 7 to 9 whereby the High Court held that failure to comply with Rule 4(1) (a)&(b) of the GN No. 66/2022 is fatal and the matter was struck out. The case of Ibrahim Pius Kagansha and Gilbert G Mahumba Vs. Bera Karumba, Land Appeal No. 08/2022 the High Court held that failure to comply with Rule 4(l)(a)&(b) of GN No. 66/2022 is fatal and hence in this case the court struck out the case with costs. She concluded by a prayer that this court find that the plaint is in contradiction with the mandatory provision of Rule 4(l)(a)&(b) of GN No. 66/2022 and Section 84(a) of the Cap. 1 as amended and the case be struck out with costs. In reply to the first point of objection, Mr. Zuku submitted that it is important that when reading the provisions of applicable laws, to read the full extent of the law and take the full extent of its meaning and interpretation. He subscribed to the applicability of Rule 4(l)(a)&(b) of the G.N. No. 66/2022 and Section 84A of the Interpretation of Laws Act as amended on what language to apply when filing pleadings in court, but his argument is that if Counsel for the defendant had directed her mind properly to the provisions of Section 84A it would have been clear to her that pleadings, proceedings or decisions may be in English language where it is related to matters stipulated in the schedule. He then pointed 3 that if you go to the schedule to the Rules which according to him, the learned Counsel avoided intentionally, circumstances and conditions are listed therein. That under Rule 3 it basically says as an exceptional circumstances to the general rules that Englis language may be used without any corresponding pleadings in Swahili on those circumstance's and conditions listed on the schedule to the rules from para (a)-(i). His submissions based on para (d), (g) and (i) which is the exceptional to the general in that English language may be used in matters involving finance and monetary affairs. He went on submitting that if you go to the plaint, it talks a lot about tax invoices when they were issued and that they were not paid. That para (d) brings the plaint to one of those exceptional circumstances in which the plaint does not apply. As for clause (g), he argued that it is categorical that the law governing the matter subject of litigation, and the practice and procedure thereto are not available in Kiswahili language. That if you go to the plaint, it is clear that there is a contractual dispute where one party agreed to provides services to another, issued tax invoices to another and that person did not pay for the taxed invoices for service rendered. That there is also an issue of tax invoices governed by monetary laws like the Income Tax Act, the Finance Act, the Tax Administration Act and there is also the law of contract Act. 4 Mr. Heri then elaborated that he had tried to go through the laws of this country and not found these laws interpreted in Swahili hence filing a plaint in swahili is actually contrary to the law. That the only way to file the claim is only in English language. As for the para (i) of the Rules which says that for any other reasons the interest of justice demands, Mr. Zuku submitted that this last circumstance or condition grants discretion to this Court to allow parties to file their pleadings or disputes before this court only in English language where interest of justice demands. He then argued that the defendant is represented by a learned Counsel who raised the objection, she is also a registered company and not a natural person so English language will not prejudice the defendant who is enjoying the services of a learned Counsel before this court. In support of this position, he cited the case of Julius Kweba & Others Vs. The Registered Trustees of Seventh Day Adventist Church and Ukerewe District Counsel, Land Appeal No. 76/2022 HC Mwanza whereby at page 5,6,7 and 8 of the ruling arguing that there is no any other way that this plaint should have been filed in any other language except English language and this is because the laws cited have no Swahili interpretations. He concluded that the first ground of objection has no merits and it should be struck out with costs. 5 In rejoinder, Ms. Mzee started by distinguishing the case that was cited by the Sen. Counsel as to the case which is before this court. She argued that the Counsel did not even understand the content and the decision of the cited case of Julius Kweba & Others Vs. the Registered Trustees of 7th day Adventist Church & Another. That this is a land appeal case and land cases has its own rules and regulations on how it should be determined and the procedures. Secondly, she submitted in this appeal the appellant filed his appeal in Swahili which is different from the case this court. That this case on the other hand supports the position that failure to comply with Rule 4(l)&(b) of the GN No. 66/2022 is fatal and as to this case the same should be struck out with costs. On the argument regarding interpretation of Rule 4(l)(a)&(b) of G.N No. 66/2022, Ms. Mzee agreed with Mr. Zuku's line of argument that the law has to be read as a whole and not part of it, Rule 3 and 4 of GN No. 66 are covered at Part II of the said Rules which provides for the circumstances and conditions for use of English language in court. That the Rule explains the circumstances where English language may be used and Rule 4 provides for conditions where a party wants or intends to initiate proceedings in English language. In other words, she argued, Rule 3 and 4 are to be read together and not in isolation. She then pointed that the Counsel for the plaintiff did not dispute that the nature of his claim 6 falls within the meaning of the circumstances outlined at the last part of the schedule to this Rule whereby he was supposed to comply with Rule 4 of G.N. No. 66 since he did not dispute that the language of the court is Swahili not English. Ms. Mzee submitted further that the Counsel for the plaintiff went further and said that the laws in question is not in Swahili translation and therefore they are exempted to comply with the mandatory provisions of Rule 4. She cited the case of Ibrahimu Pius Kangansha, where the court held at page 10 that despite the fact that the laws are not in Kiswahili, parties are bound to comply with Rule 4(a)&(b) of GN No. 66 of 2022. She concluded that the argument that the laws are not in Swahili were well interpreted in this case. Having heard the parties, the first point of objection is that suit is bad in law for contravening the mandatory provisions of Rule IV 1 (a)&(b) of the Rules and Section 84(a) of the Act. Ms. Mzee's argument was premised on the fact that in the Rules, the word "shall" is used meaning that that the provision is mandatory and has to be complied with. She supported this line of argument by citing the case of Amani Constructions Co. Limited Vs. Makudo Engineering Company Limited and 2 others, whereby the High Court held that failure to comply with Rule 4(1) (a)&(b) of the Rules is fatal and in this case the 7 court struct out the case. She also cited the case Ibrahim Pius Kagansha and Gilbert G Mahumba Vs. Bera Karumba whereby this court also held that failure to comply with Rule 4(l)(a)&(b) of G.N. No. 66/2022. On his part Mr. Zuku subscribed to Ms. Mzee argument on the applicability of Rule 4(l)(a)&(b) and Section 84A of the Act on what language to apply when filing pleadings in court. He however argued that it is important that when reading the provisions of applicable laws, to read the full extent of the law and take the full extent of its meaning and interpretation. He then pointed to the schedule to the Rules whereby the circumstances and conditions are listed therein. That Rule 3 from para (a)-(i) basically says as an exceptional circumstances to the general rules that Englis language may be used without any corresponding pleadings in swahili. He emphasized that the exceptional to the general is that English language may be used in matters involving finance and monetary affairs. That the plaint talks a lot about tax invoices when they were issued and that they were not paid hence brings the plaint to one of those exceptional circumstances in which the Rule does not apply. He further cited clause (g) which is categorical that the law governing the matter subject of litigation, and the practice and procedure thereto are not available in Kiswahili language. Pointing to the plaint he 8 argued that it is clear that there is a contractual dispute where one party agreed to provides services to another, issued tax invoices to another and that person did not pay for the taxed invoices for service rendered. There is also an issue of tax invoices government by monetary laws like the Income Tax Act, the Finance Act, the Tax Administration Act, there is also the law of contract Act. My interpretation of the Rules and its schedule do not befall far from the argument advanced by Mr. Zuku. Rules 4 is clear that: 4.-(l) A party who intends to initiate proceedings which, in his opinion, falls under the circumstances where the proceedings and decision thereto are to be conducted in English language, such party shall- (a) file his pleadings in English language with their corresponding translation in KiswahiH language; and (b) state the grounds upon which he relies to have the proceedings conducted in English language. The clear implication of the Rule is that proceedings are to be filed in Kiswahili and it is in the circumstances that the party in his opinion, falls under the circumstances where the proceedings and decision thereto are to be conducted in English language is when he can file the same in English. However, Rule 4(a) still emphasized that the pleadings may be 9 filed in English language with their corresponding translation in Kiswahili language. However, as argued by Mr. Zuku, the Rules have some exceptions which have catered for circumstances upon which English may be used without necessarily having the corresponding pleadings in Kiswahili. The intention of the legislature must have catered for the fact that in the long history of the existence of our courts, English has been the language used in courts save for the Primary Courts. The transition can not be rushed hence the exceptional circumstances were provided for so that there is a smooth transition. The question is on which were there exceptions to the general rules. The exception to the general Rules are found in the schedule to the Rules and for the purpose of this objection, my focus will be on clause (g) of the Schedule on circumstances and conditions for the use of English language in courts. Clause (g) provides for the situation where the law governing the matter subject of litigation, and the practice and procedure thereto are not available in Kiswahili language. The question is on which law is applicable in these circumstances. The suit before me is filed under Order I of the Civil Procedure Code, by a plaint. We also have an objection herein on the contravention of Order VII of the CPC hence the law applicable is the CPC. The subject matter herein is a breach of contract by failure of the defendant to pay tax invoices for services rendered by 10 the plaintiff to the defendant between the period of December, 2022 to January, 2023. Therefor another applicable law is the law of contract. With respect to the argument by Mr. Zuku that the matter is of finances and taxes, I find that he has misled himself because the suit is a breach of contract by failure to fulfill an obligation and not one of finances as he argued. Therefore, my determination is with regard to the clause (g) which requires the law in question to have been interpreted in Swahili language. The next question is whether the law as mentioned above have been interpreted in Swahili, until the date of hearing of the objection, I was yet to be made aware of any officially interparted CPC or the Contract Act hence the matter beforehand falls under the exceptions provided for under Clause (g) of the Schedule to the Rules. That being the case, the first point of objection is overruled. The second point of objection was that the suit is bad in law for contradicting with Order VII Rule 1 (e)&(i) of the Civil Procedure Code, Cap 33 R.E 2019. Ms. Mzee started by citing the provisions of Order VII Rule 1(e) of the CPC, which provides that the plaint shall contain the facts constituting the cause of action and when it arose. She then cited the case of John Mwombeki Jombalilwa Vs. Agency Maritime Internation T Ltd, 1983 TLR 1, where the court held that for a plaint to constitute ii that it has a cause of action, there must be three mandatory things in that plaint. First, there must be a fact in the plaint showing the cause of action. Second, there must be included in the said facts a date showing when the said cause of action arose and third the said cause of action must be caused by the defendant. She then argued that going through the plaint filed by the plaintiff, these three requirements were not met. Ms. Mzee pointed to para 3 of the plaint where the plaintiff tried to narrate on the issue of invoices and at page 4 where the plaintiff narrates further that there was a business agreement or contract between him and the defendant and there is nowhere in the plaint explaining specific dates as to the execution of the mentioned agreement. Rather, she argued we are told about the invoices which was a result of the agreement in question hence the three conditions mentioned earlier and reflected in the cited case of John Mwombeki were not met. Ms. Mzee went on submitting that it is hard to establish that there is a cause of action and even if we assume that there is cause of action, still other factors like the time when the cause of action arose was not part of the plaint. As for this point of preliminary objection, her prayer was that the Hon Court finds that the plaint before this court is defective and non-curable for failure to disclose the cause of action and when it arose and the case be dismissed with costs. 12 Going to order VII Rule l(i), Ms. Mzee submitted that the Rule provide that the plaint shall state the pecuniary value of the subject matter in question for the purposes of determining the jurisdiction. That going through the plaint filed, the plaint alleged that there was unpaid invoices which was a result of the agreement which was entered between the plaintiff and the defendant. Further that at para 4 of the plaint there is nowhere in the plaint which indicates the actual value or consideration of the agreement which was claimed by the plaintiff. In that, she submitted that the unpaid invoices which was a consequence of the agreement entered between the parties as claimed in the plaint cannot be used to determine or to be considered as the pecuniary or value of the subject matter. Rather the contract or agreement itself is to be used to ascertain the pecuniary value of the subject matter. She supported her line of argument by citing the case of Jamali Saidi & 3 others Vs. Karmal Azizi Msuya, Land Case No 42 of 2017 where at page 14 to 16 the High Court held clearly that to ascertain the pecuniary or actual value of the subject matter, what is used is the subject matter in question and not the consequence or impact occurred from the origin of that matter. In this case the court struck out the case with costs. 13 In conclusion thereof, she prayed for this Hon. Court to find that these two preliminary objections have merits and are purely point of law hence the case to be dismissed with costs. In reply, Mr. Zuku submitted that the objection was divided in three parts. He started with the objection that the plaint did not comply with the provisions of Order VII Rule 1(e) of the CPC. He submitted that the Rule provide that the plaint should contain a statement explaining the cause of action and when it arose. He agreed with the holding in the cited case of John Mwombeki Jumbalilwa that for a plaint to constitute cause of action there must be three mandatory aspects, one is cause of action, two is the date which shows when the cause of action arose and three that the said cause of action was caused by the defendant who is being sued. He then submitted that if you read para 3 of the plaint, it says the amount of the claim and the period within which such claim arose. That the cause of action is clear that the plaintiff provided services to the defendant which the value was also mentioned as USD 220,675,000. The para did not end there, he submitted it described when these services were provided which is between 2nd Dec. 2022 and 10th January 2023 and that para 4 expands on what is stated under para 3. He hence argued 14 that if you read para 3,4 and 5 there is sufficient facts which shows cause of action between plaintiff and defendant. He went on submitting that another important factor is the fact that cause of action is established from the plaint and its annexures, and that there are annexures in PML 1 and 2 annexed to the plaint. That PML 2 is a demand notice which expounds as to what sort of services were provided to the defendant and PML 1 gives a breakdown of the all the claim in the invoices in a formalized outstanding statement in the name of the defendant. Having said that, he argued that limb No. 1 of Ms. Mzee's objection was complied by the plaintiff On the second limb on the date which the cause of action arose, he submitted that it is quite clear in para 3 and 4 as to when the cause of action actually arose. In the last limb, that the cause of action must be caused of the defendant, Mr. Zuku submitted that this is surprising because it is quite a short plaint and if you read para 2 which identified the defendants as Raphael logistics Tanzania Limited, para 3,4,5 and 6 specifically and their annexure they impute all claims to the defendant without any doubt. Therefore based on the foregoing, he concluded that the plaint complies with the requirement of Order VII Rule 1(e). On the provisions of order VII Rule l(i), he submitted that the provisions reads that the pliant must state a statement of the value of the 15 subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. That para 3,4 and 5 with its annexures clearly informs this Hon Court the value of the subject matter of the suit. That the pecuniary value of an agreement can and should be deduced from the value of tax invoices raised against the defendant, the reason for that being the plaintiff was in a state of providing continuous services to the defendant. Therefore, he disagreed with the submission that an agreement alone can indicate value of the contract between the plaintiff and the defendant. Normally in service contracts, he submitted, pecuniary value sometimes is not fixed until after services have been rendered. Mr. Zuku concluded his submissions with a prayer for this Hon Court to dismiss with costs all the preliminary objections raised by the defendant for want of merits. As to the objection on the issue of cause of action, her rejoinder submission was that passing through the plaint and the identified paragraphs 3 and 4 there is nowhere at para 4 where the plaintiff indicated as to when that agreement was executed specifically (The issue is not when the agreement was executed, the issue began when the agreement was breached). That on the referred annexures of the plaint particularly demand notice and para 3 of the plait which talks about invoices, what is claimed on para 3 on invoices and dates specified therein 16 are different from the demand notice which was elaborated by the Counsel. That the dates which were mentioned in the demand notice specifically at para 1 it says service rendered between 2nd December 2022 and 9th November, 2023 while the invoices claimed to be unpaid at para 3 of the plaint are all services rendered between 2nd of December 2022 and 10th of January 2023. That not only do they contradict each other, but also indicates that what is claimed in para 3 of the plaint is different from the mentioned annexures which were claimed in the demand notice as argued. (This is a matter to be proved on evidence) On the argument that the cause of action is established in the plaint, she reiterated her submission that the conditions were not established as para 3 of the plaint did not show or indicate the three elements to establish cause of action despite the fact that the Counsel for the plaintiff did not dispute that the nature of the claim was originated from the agreement which was between the parties. On the last part as to the issue of pecuniary jurisdiction, her rejoinder submission was that the Counsel for the plaintiff tried to provide his own opinion as to what exactly could be used to determine the pecuniary value of the subject matter. Her argument is that it is not the invoices which can be used to determine the pecuniary value of the subject matter but rather the agreement or contract itself that was 17 entered between them. She referred to the case of Jamal Said which set a distinction on what exactly is to be used to determine the exact value of the subject matter. She reiterated her prayer that the court to find that the objections have merits and this case be dismissed with costs. The second point of objection is on the contravention of the provisions of Order VII Rule 1 (e)&(i) of the CPC. Ms. Mzee argued that the facts constituting the cause of action and when it arose must be clearly stipulated in the plaint. She supported her argument by citing the case of John Mwombeki Jombalilwa Vs. Agency Maritime Internation T Ltd, 1983 TLR 1 where the court held that for a plaint to constitute that it has a cause of action, there must be three mandatory things in that plaint. First there must be a fact in the plaint showing the cause of action, second there must be included in the said facts a date showing when the said cause of action arose and third the said cause of action must be caused by the defendant, going through the plaint filed by the plaintiff, these three requirements were not met. She then argued that at para 3 of the plaint, the plaintiff tried to narrate on the issue of invoices and para 4 the plaintiff narrates further that there was a business agreement or contract between him and the defendant and there is nowhere in the plaint explaining specific dates as 18 to the execution of the mentioned agreement (this is a matter of evidence to be adduced during trial). That the plaintiff rather narrates about the invoices which was a result of the agreement in question arguing that in that regard, the three conditions mentioned earlier and reflected in the cited case of John Mwombeki were not met. In reply, Mr. Zuku argued that at para 3,4 and5 with its annexures clearly informs this Hon Court the value of the subject matter of the suit. That para 3 of the plaint, says the amount of the claim and the period within which such claim arose. He argued that the cause of action is clear that the plaintiff provided services to the defendant which value was also mentioned as USD 220,675,000. Further that the para did not end there, it described when these services were provided which is between 2nd Dec. 2022 and 10th January 2023. He further pointed to para 4 which expands on what is stated under para 3. His argument was that if you read para 3,4 and 5 there is sufficient facts which shows cause of action between plaintiff and defendant. Having considered the submissions of the parties, indeed the requirements of Order VII Rule 1 (e)&(i) of the CPC are clear that the plaint must have facts constituting the cause of action and when it arose as well as a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. 19 Mr. Zuku pointed to para 3 of the plaint which clearly states that the claim against the defendant is for payment of USD 220,675.20 hence the value of the subject matter. The plaint is also clear that the claim is for unpaid invoices between the periods of December, 2023 and January 2023. This is therefore a clear statement of the subject matter of the suit and the time when the cause of action arose, which is the period of unpaid invoices. Therefore for the purpose of the provisions of Order VII Rule I of the CPC, the plaint has sufficed the requirements therein. Situation would have been different if the whole plaint did not stipulate the facts showing cause of action and when it arose or the value of the subject matter. In this case, it is to the satisfaction of this court that the same have been complied with. That being the case, the second point of objection is also overruled. In conclusion therefore, this court finds both the objections without merits and they are hereby overruled with costs. Dated at Dar-es-salaam this 13th day of November, 2024 20