RAMANI 10 COMPANY LIMITED V

IN THE HIGH COURT OF TANZANIA (ARUSHA SUB- REGISTRY) AT ARUSHA CIVIL CASE NO. 14 OF 2023 RAMANI 10 COMPANY LIMITED …………...…….…… PLAINTIFF VERSUS BAHATI GODWIN MGONJA T/A Y&H ENTERPRISES ………………………..………. DEFENDANT RULING Date of Last Order: 11/06/2024 Date of Judgement: 12/06/2024 B. E. K. Mganga, J. Initially, this case was assigned to Hon. Ndumbaro, J, but it was re-asigned to me in this clean up special sessions. When the case was called on for hearing on 11th June 2024 as it was scheduled in the course list, Mr. Said Said, learned advocate appeared for and on behalf of the plaintiff while Mr. Fortunatus Mhalila, learned advocated appeared for and on behalf of the defendant. As a normal procedure, before kicking off the hearing, I asked the parties to address the court as whether, there is an objection for the case to be heard and determined by myself or not. In addressing the court, learned counsel for the plaintiff submitted that he has no objection for the case to be heard and determined by me 1 and that, he was ready to proceed with hearing as it was scheduled. On the other hand, learned counsel for the defendant submitted that he was not ready and gave two reasons namely, one; he has another case namely, Civil Case No. 42 of 2023 between Stance Techniques and Civil Engineering Ltd vs Hanil Jiangsu Joint Ventures Limited before Hon. Mkwizu, J which is also scheduled for hearing in this special clean up sessions from 07th June 2024 to 12th June 2024. Counsel for the defendant submitted that he cannot proceed with hearing of this case before finalization of the aforementioned case. Two; there is a conflict of interest because, initially I was his boss and that, we had a serious conflict of interest that led to economic case be filed against him as a result, he stayed in custody for more than five months. Learned counsel submitted further that, there will be no impartiality and that he will not be comfortable to proceed with hearing of this case before me on ground that I will be biased. To support his submissions on conflict of interest and biasness, learned counsel for the defendant cited Rule 9(1)(a) and (b) of of the Code of Conduct and Ethics for Judicial Officers, G.N. No. 1001 of 2020 and the cases of DPP vs Elia Yotam Baha (Criminal Appeal 30 of 2021) [2021] TZHC 5304 and Issack Mwamasika & Others vs CRDB Bank Limited (Civil Revision No. 6 of 2016) [2016] TZCA 546. It was further submissions of learned 2 counsel for the defendant that, in the cited cases, judges recused due to friendship with one of the parties to the case and argued that, in the case at hand, there is enmity. Based on the foregoing, counsel for the defendant submitted that he fears that the decision may not be fair and so he prayed that I should recurse from hearing this civil suit. He added that, if I won’t recurse myself, he will withdraw from representing the defendant. Responding to the submissions by cousel for the defendant in relation to thecase that is pending before Hon. Mkwizu, J, counsel for the plaintiff submitted that parties can proceed with hearing of this case on 13th and 14th June, 2024. On recusal, counsel for the plaintiff simply submitted that he had no facts behind that ground, so he left it to the court to decide. I have considered submissions of both learned counsel on behalf of the parties and wish to start, for obvious reason, with the second reason advanced by learned counsel for the defendant that I should recurse from hearing this case. It was submitted by counsel for the defendant that, there is conflict of interest because, previously I happened to be his boss and had a serious conflict of interest that led to economic case be filed against him and stayed in custody for more than five months hence enemity between two of us. Undeniably, counsel for 3 the defendant previously, was a State Attorney in the Attorney General Chambers stationed at Arusha. At that time, in terms of section 7(1)(a), (c) and (e) of the Office of the Attorney General (Discharge of Duties) Act,(Cap. 268 R.E.2019), the Deputy Attorney General was (i) the administrative head of the office of the Attorney General, (ii) carrying out general suppervision of Law Officers and State attorney and (iii) responsible for the discipline of Law Officers and State Attorneys in the Office of the Attorney General. In terms of section 3 of Cap. 268, Cap. 268 R.E.2019 (supra), the term Law officer has a meaning ascribed to it under the Interpretation of Laws Act,Cap 1 R.E. 2019 which defines the said term under section 4 to include the Director of Public Prosecutions. In other words, the Director of Public prosecutions, like any other state attorneys, including the learned counsel fo the defendant (as he then was) were subject to disciplinary measures of the Deputy Attorney General. In terms of section 7(1)(e) of Cap. 268,Cap. 268 R.E.2019(supra), unpleasant as it was, the dicsiplinary officer of all State Attorneys and the the Director of Public prosecutions, the later being a creature of Article 59B of the constitutional, was the Deputy Attorney General. Therefore, in terms of the said section, the Director of Public prosecutions (as I then was), legally speaking, was not the boss 4 of the State Attorneys including counsel for the defendant as he then was. In remeding the said unpleasant situation, in 2018, through GN No. 49 of 2018, the president established the National Prosecution Services (NPS) as an independent and autonomous office hence separate from the Office of the Attorney General. It was due to the said separation, learned counsel for the defendant continued to work as a State Attorney in the Attorney General’s Chambers up to the time he left the said office and practice as private advocate. He was at all times, not under the Directors of the Public Prosecutions. Working as a state Attorney under the Office of the Attorney General did not make him to be subordinated of the Diretor of Public Prosecutions. It was submitted by counsel for the defendant that at the time he was a State Attorney, a conflict of interest arose which resulted into economic case to be filed against him. I should point out that, a conflict of interest was between the person who faced economic case and the law and not the individual who was enforcing the law on behalf of the public. In my view, a distinction must be drawn between personal interest or conflict that public interest or conflict. If that distinction cannot be made, then, every judicial officer in discharged of his or her duties in interpreting the law and in so doing affecting one of the 5 parties, should be said to have interest in the matter hence a prayer for recusal. In my view, that interpretation, cannot be valid. I am of that view because, there cannot be personal interest for the person who is enforcing or interpreting the law on behalf of the public. It is my view that, learned counsel for the defendant has failed to put facts forward for the court to assess whether the said economic case was based on personal interest or public interest or whether there was persoanl conflict or it was conflict of an individual and the law and the outcome thereof. More so, the complained of economic case which learned counsel has not mentioned, was filed by the National Prosecutions services headed by the Director of Public Prosecutions on behalf of the Public and not on individual capacity. I therefore, see no any justification of recusal on the complaint relating to hostility, which of course does not exist because hostility was between the individual and the law. Learned counsel for the defendant submitted that, there is bias and impartiality and that I should recurse. I should, at this juncture, point out that, grounds for recusal of a judicial officer in our country are provided for under Rule 9 of GN. 1001 of 2020 (supra). The said Rule 9 of GN. 1001 of 2020(supra) provides:- “9.-(1) A judicial officer shall disqualify himself in any case in which that 6 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; (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). In his submission praying that I should recurse, learned counsel for the defendant relied on the provisions of Rule 9(1)(a) and (b) of GN. No. 1001 of 2020 (supra) quoted hereinabove. In his submissions, learned counsel for the defendant has failed to show that, I will be 7 unable to adjucidate the matter at hand impartially as provided for under Rule 19(1)(a) of GN. No. 1001 of 2020(supra), or that, I or my immediate family members have personal interest in the matter between the parties. In short, learned counsel for the defedant has failed to prove that any of the grounds in Rule 9(1) (a) and or (b) of GN. No. 1001 of 2020 (supra) does exists. In my view, it wa not enough for counsel for the defendant just to state that I will be unable to adjudicate the case impartially without giving justification for that submissions. I therefore find that, creteria provided for under Rule 9(1)(a) of GN. No. 1001 of 2020 (supra ) was not met. In addition to that, submissions based on Rule 9(1)(b) of GN. No. 1001 of 2020(supra) relating to conflict of interest cannot stand because, it was not submitted that I have a personal interest in the matter. In addition to the foregoing provision, there is litany of case laws as to conditions to be considered for a judicial officer to recurse and that a judicial officer should not recurse from hearing a case based on flimsy reasons. See the case of Laurean G. Rugaimukamu v. Inspector General of Police & Another, Civil Appeal No. 13 of 1999, CAT(unreported), Registered Trustees of Social Action Trust Fund & Another vs Messrs Happy Sausages Limited & Others (Civil Appeal 70 of 2002) [2003] TZCA 26 (29 July 2003) and Issack 8 Mwamasika & Others vs CRDB Bank Limited (Civil Revision No. 6 of 2016) [2016] TZCA 546 (28 September 2016). In Mwamasika’s case (supra), cited by learned counsel for the defendant, the Court of Appeal quoted the holding in the case of Okritie International Investment Management Ltd. & 4 others v. Mr. George Urumov [2014] EWCA Civ. 1315 that:- " 7, It is always tempting for a judge against whom criticisms 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 a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recurse himself simply because it would be more comfortable to do so.” In Mwamasika’s case (supra), the Court of Appeal further quoted the holding in the case of Uhuru Highway Development Ltd Central Bank of Kenya & 2 Others, C.A. (K) Civil Appeal No. 36 of 1996, reported in the Kenyan Appeal Reports Vol. 3 p. 211 -219 that:- “ For our party, we dare say that most litigants would much prefer that they be allowed to shop around for the judges that would hear their cases. That however, is a luxury which is not yet available under our law to litigants and these applicants cannot have it.” In Mwamasika’s case (supra), the Court of Appeal Concluded that:- 9 “What we have gathered from the authorities cited herein above seems to direct that judges are required to resist the temptation to disqualify themselves for flimsy or imaginary fears... What is more important is that the objection for a judge to disqualify himself/herself must come from a party/litigant in that particular case. We strongly advise that, Judges and Magistrates should refrain themselves from acting on mere text messages from anonymous authors who are not parties in a case conducted by them. As we have already established herein above, for a judge or magistrate to disqualify himself/herself it does not depend upon the stage where a case has reached, but that, the objection must come from a party in that particular case. The principles laid down in the case of Lauren Rugaimukamu (supra) applies all along since a case is set for hearing until when it is adjourned for composing a judgment. In addition to those principles, we also find that if a judge has personal knowledge of disputed facts it may also take as one of the circumstances where a judge can recurse himself/herself…Before penning off, we note that recusal and disqualification of judges is a sensitive subject, since it draws into question the fitness of a judge to carry out the fundamental role of his or her position… the fair and impartial resolution of judicial proceedings. So, the decision to file a motion seeking disqualification should be made only after careful consideration.” (Emphasis is mine). It is clear from the above quoted holding of the Court of Appeal that, judicial functions are sensitive and that, recusal and disqualification of performing those sensitive functions, should be done by a judicial offer, after a very careful consideration because, that calls for examination of fitness or otherwise of the judicial officer, as a fit and proper person to perform judicial functions. From where I am standing, submissions by the learned counsel for the defendant, suspicious as they 10 are, cannot warrant disqualification of hearing this matter. My position is fortified by what was held by the Court of Appeal in Happy Sausages’s case (supra), wherein it was held inter-alia that:- “…It is our considered view that it would be an abdication of judicial function and an encouragement of spurious applications for a judicial officer to adopt the approach that he/she should disqualify himself/herself whenever requested to do so on application of one of the parties on the grounds of possible appearance of bias. A judicial officer should not automatically stand aside whenever requested to do so…We should perhaps point out at this juncture that there is no complaint against the learned trial judge that he had a direct interest in the subject-matter of the proceedings as may lead to an appearance or likelihood of bias. Nor is it alleged that he had any pecuniary interest in the matter…(Emphasis is mine). The word “abdication” is defined in the Black’s law Disctionary 6th Edition by M. J. Connolly, et-al, St. Paul, Minn, West Publishing Co, 1990 at page 5 as follows:- “abdication is the relinquishment of an office which has devolved by act of law. It is said to be a renunciation, quitting, and relinquishing, so as to have nothing further to do with a thing, or the doing of such actions as are inconsistent with the holding of it.” The above definition of the word “abdication” tells all as to why the Court of Appeal used it in Happy Sausages’s case (supra) as a reminder to whoever intends to recuse himself or herself from hearing the matter that is before him or her must consider. I cann’t tell more than that. In Happy Sausages’s case (supra), the Court of Appeal 11 further quoted the case of Porter and Another v Maqill (2002) 1 All ER 46 that:- "The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased." In addition to the foregoing, in Rugaimukamu’s case (supra), the Court laid down principles or conditions for the judicial officer to recurse himself or herself. The Court of Appeal held that, recusal can be properly made (i) if there is evidence of bad blood between the litigant and the judicial officer concerned, (ii) if thejudicial officer has close relationship with the adverse party or one of them, (iii) if the judicial officer or his/her close family member has an interest in the outcome of the litigation other than administration of justice. The Court of Appeal emphasized that a judicial officer should not be asked to disqualify himself or herself for flimsy or imaginary fears. In the case at hand, there is no evidence of bad blood between the litigant and the judge rather, imaginary fears by the learned counsel for the defendant. In other words, the fears are by the learned counsel for the defendant and not the defendant herself. In fact, in his submissions, learned counsel for the defendant did not say that the defendant is not confortable with 12 me rather, he submitted that he, as counsel for the dendant, was the one who was not confortable. On the first reason advanced by learned counsel for the defendant was that, he had Stance’s case (supra) before Hon. Mkwizu, J which was scheduled for hearing in this special clean up sessions from 07th June 2024 to 12th June 2024. It is true that, learned counsel for the defendant was representing the plaintiff in Stance’s case (supra) before Hon. Mkwizu, J. Luckly as it is, hearing of evidence of the parties in the said case was concluded on 10th June 2024 hence that cannot be a ground for not proceeding with hearing of this case. It is true that, both the said case and the one at hand were scheduled more than two weeks ago so that they can be determined in this special clean up sessions with a view of making sure that litigation comes to an end. It would happear, learned counsel for the defendant, knowing that hearing of evidence in Stance’s case (supra) was concluded on 10th June 2024, wants the case at hand to be heard depending on his convinience, in disregard of the principle that litigations must come to an end and in disregard of onether principle that courts should control its calender. This explains as to why, even after conclusion of hearing of evidence of the parties in Stance’s case (supra), learned counsel for the defendant submitted that he cannot procced with hearing of this case. In the case 13 of Jebra Kambole vs The Attoney General (Civil Appeal 236 of 2019) [2022] TZCA 377 (15 June 2022), the Court of Appeal, in emphasizing on the principle that litigations must come to an end, had this to say:- “…it is, perhaps, pertinent to observe that, the law in this country, like the laws of other jurisdictions, recognizes that, like life, litigation has to come to an end. Those who believe that litigation may be continued as long as legal ingenuity has not been exhausted are clearly wrong.” Even if assuming that hearing of evidence of the parties in Stance’s case (supra) was not concluded, of which it is not the case, it was upon the parties to find their time and make sure that, this case is heard within this special session though not on the date scheduled but to convinience of the parties and the court. It is clear that, counsel for the plaintiff suggested another date of hearing which is within this session but counsel for the defendant was not ready based on the second ground. It seems to me that, learned counsel for the defendant was not prepared to see hearing of this case is concluded. In my view, that also is a ground for not recusing myeslf because, it is a public policy that, litigations must come to finality. In fact, in the case of Golden Globe International Services & Another vs Millicom Tanzania N.V & Another the Court of Appeal when faced with a similar situation had this to say: - 14 “Having also beared in mind the demand of public policy on the finality of litigation, we are declining to disqualify ourselves in hearing this application for Review. We therefore order the hearing of review application to be set in the next convenient sessions.” In his submissions, learned counsel for the defendant stated inter- alia that:- “If you will not recurse, I will withdraw from representing the defendant” The quoted sentence clearly shows that, learned counsel for the defendant has made a decision that he cannot proceed with hearing of this case before me. As the quoted sentence sound, learned counsel was intimidating and dictating the court to do what he wants to be done, short of which he will withdraw from representing the defendant. That, cannot be accepted in legal profession. A judicial officer cannot abdicate his or her judicial duties based on intimidation from one of the learned counsel or just to make one of the learned counsel happy but in disregard of well established principles. For the foregoing, I find that there is no justifiable reason for recusal. I will therefore proceed to hear and determine this matter. Dated at Arusha on this 12th June 2024. B. E. K. Mganga JUDGE 15 Ruling delivered on this 12th May 2024 in Chambers in the presence of Said Said, Advocate for the plaintiff and Bahati Godwin Mgonja, the Plaintiff and George Mrosso, advocate holding brief of Fortunatus Mhalila, Advocate for the Plaintiff. B. E. K. Mganga JUDGE 16