The Board of Trustees of the Public Service Security Fund Another vs Estim Construction Company Limited Another Civil Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF DAR ES SALAAM) AT DAR ES SALAAM. CIVIL CASE NO. 196 OF 2022 THE BOARD OF TRUSTEES OF THE PUBLIC SERVICE SOCIAL SECURITY FUND………..………………………1ST PLAINTIFF ATTORNEY GENERAL…………………..………………………………2ND PLAINTIFF VERSUS ESTIM CONSTRUCTION COMPANY LIMITED…………………………………………………..1ST DEFENDANT THE INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS (FIDIC)………….…………………2ND DEFENDANT RULING Date of last order: 10/09/2024 Date of Ruling: 22/10/2024 A.A. MBAGWA, J. This ruling emanates from the objections raised by the defence counsel against the admission and adoption of the plaintiffs’ witness statement. What transpired and ultimately led to the raising of objection may briefly be recounted as follows; On 10th September 2024, when the suit came for hearing, PW1 Mr. Marco Kapinga, while under the witness box, sought 1 leave of the court for his witness statement to be adopted and admitted as part of his testimony in chief. Nevertheless, the prayer encountered objections from the defence counsel to the effect that the witness statement was inadmissible in that it contravened the provisions of Order XVIII Rule 2(3)(b) and (5) of the Civil Procedure Code, [Cap. 33 R.E 2019] as amended by G.N No. 761 of 2021 (CPC). Submitting in support of the objection, Mr. Deusdedith Mayomba Duncan, the learned advocate for the 1st defendant had it that the witness statement sought to be tendered was in defiance of Order XVIII Rule 2(3)(b) of the CPC that required the inclusion of name, age, address, and occupation of the witness. He strongly argued that the witness statement also contravened order XVIII Rule 2(5) which dictates the statement to be in the approved format. He was of the opinion that since the word used in the rules is ‘shall’ its noncompliance rendered the statement inadmissible. Finally, Mr. Duncan implored the Court to refuse the admission of the witness statement in question. On his part, Mr. Kyariga, the learned advocate for the 2nd defendant joined hands with Mr. Duncan on the raised grounds of objection. He added that the Court should reject the statement purportedly sworn by Marco 2 Kapinga because, in his oral testimony in the witness dock, he introduced himself as Marco Benedict Kapinga. In reply, Mr. Ayubu Sanga, learned State Attorney for the plaintiffs was of the view that the objections were baseless and without legal substance. He submitted that the pinpointed anomalies were minor and therefore curable in the web of section 64 of the Interpretation of Laws Act [ Cap. 1 R.E. 2019]. He expounded that minor defects that do not affect the substance of the evidence are not fatal. Mr. Sanga continued that nowhere the defence alleged that the deviation was intended to mislead. He argued further that all the requirements under Order XVIII Rule 2 (3) (b) were complied with in that paragraph 1 contained the witness’ name and paragraph 3 stated the occupation of the witness. The learned State Attorney admitted that the witness’ age was not stated in the statement but he was quick to remark that the same was not fatal because by practice the witness states his age at the time of taking oath i.e., before testifying in court. Mr. Sanga elaborated that although the word used is ‘shall’, in the case at hand it did not mean mandatory function. To impress the Court, he cited the case of M/S Dezo Civil Contractors Company Limited and 3 Another vs Public Procurement Appeal Authority and Others, Misc. Cause No. 000027464 of 2023 [TZHC] 1414 [27/03/2024] pages 14 and 15 where the Court held that deviation not affecting the substance is curable. It was on that strength Mr. Sanga was adamant that the alleged deviations were curable. Coming to the argument by Mr. Kyariga on the inconsistencies in the witness’ name as mentioned in the witness statement against the name in the introductory part of his oral testimony, Mr. Sanga admitted that the witness introduced himself as Marco Benedict Kapinga whilst in the witness statement, he used two names namely Marco Kapinga. However, Mr. Sanga hastily commented that it was an issue of fact that could conveniently be cleared in the cross-examination. Finally, the learned State Attorney beseeched the Court to overrule the objections with costs. In rejoinder, Mr. Duncan reiterated his submission in chief. He added that Order XVIII Rule 2 (5) requires the witness statement to be substantially in the form made under section 101(1) of the Code. He continued that the witness statement must bear the initial and case number on every page. Mr. Duncan strongly contended that the witness statement was defective because it fell short of the required initials and case numbers. 4 He concluded that the witness statement should not be admitted unless the plaintiffs first sought and obtained leave for amendment. Mr. Kyariga in his brief rejoinder submitted that the State Attorney’s reply on the inconsistencies of the witness’ name was a mere submission from the bar. He insisted that the witness statement does not belong to the witness in the dock and the same is inadmissible. I have keenly heard and dispassionately considered the arguments for and against the admission of the witness’ statement in dispute. I have also revisited the witness statement of PW1. The germane question for determination is whether the objections are meritorious enough to reject into admission of the statement of PW1. Starting with the 1st objection, the defendants’ counsel submitted the witness’ statement violates the mandatory provisions of order XVIII Rule 2 (3) (b) of the Civil Procedure Code. Their squabble was that the witness statement in dispute did not state the age and occupation of the witness. Upon a perusal of the witness statement of PW1, it is true as rightly submitted by the defendants’ counsel and conceded to by the learned State Attorney that the age is not indicated in the witness statement. Mr. Sanga was opined that the ailment is inconsequential whilst the 5 defendants’ counsel had a contrary opinion. The issue to ponder therefore is whether the failure to mention the age in the witness statement renders the statement inadmissible. On my part, I find a purchase in Mr. Sanga’s argument that the anomaly is not fatal. This is due to the following reasons one, the absence of age in the witness statement does not cause any prejudice to either party, and two, it does not corrode the substance of the evidence. All the same, it is a cardinal principle of law that before a witness testifies he must mention his age and in this particular case, PW1 told the Court while taking the oath that he was 53 years old. Thus, aware of the overriding objective principle introduced in our law through Section 3A of the Civil Procedure Code, among other laws, it is my considered view that the alleged noncompliance is inconsequential. I also concur with Mr. Sanga, the learned State Attorney that it is not always that whenever the word ‘shall’ is used it implies a mandatory function. Besides, the occupation of the witness was stated under paragraph 1 of the witness statement. In that regard, it is my considered opinion the alleged absence of the witness’ age in the witness statement is inconsequential as it does not affect the substance of the evidence. My 6 reasoning is in line with the mischief behind the overriding objective principle enshrined under Section 3A of the Civil Procedure Code. In the case of A.A.R Insurance T. Ltd vs Beatus Kisusi, Civil Appeal No. 67 of 2015, CAT at Mwanza (Unreported), the Court, while deliberating on the consequences of the failure to comply with Rule 12 (4) of the Rules that requires a party to mark every tenth line of every page of the record of appeal, at page 2 of the typed judgment, the Court had this to say; - “It is not in every situation that a non-compliance with a rule as contended by Mr. Mushobozi, renders the appeal incompetent simply because the word "shall" is used in the rule. Non-compliance which does not go to the root or substance of the matter can be overlooked provided there is substantial compliance with the rule read as whole and no prejudice is occasioned.” (Emphasis added) Borrowing a leaf from the above reasoning of the Court of Appeal, I am inclined to hold that the witness statement under contest substantially complied with the law, and no prejudice was occasioned by the alleged anomalies. I thus dismiss the objections against the witness statement. 7 On the argument that the witness statement should be in the approved form as submitted by Mr. Duncan, I find it apposite to let the relevant provisions speak for themselves. Order XVIII Rule 2(5) of the Civil Procedure Code provides that: - ‘ (5) The witness statement shall be substantially in the form made under section 101(1) of the Code.’ In dealing with this complaint, I found the holding of the Court of Appeal in the case of Meis Industries Company Limited v. Exim Bank (Tanzania) Limited, Civil Application 70 of 2014 very instructive. On page 4 of the ruling the Court had this to say;- “We think that the catchword in this rule is "substantially". According to the New Oxford Advanced Learners Dictionary (at p. 1531) that word means among others “. mainly; in most details, even if not completely…” (Emphasis added) Besides, section 64 of the Interpretation of Laws Act provides; ‘’64. Except as is otherwise provided, wherever forms are prescribed, deviations therefrom not 8 affecting the substance and not calculated to mislead, shall not vitiate them.’’ (Emphasis added) From the above, it goes without saying that it is not a hard and fast rule that the witness statement must strictly and completely comply with dictates and formalities provided under Order XVIII nor does any deviation renders the statement inadmissible. Thus, upon a careful perusal of the witness statement as a whole, I have been persuaded to go along with Mr. Sanga that it substantially complied with the law. I, therefore, hold that the defence objections are too scanty to prevent the admission of the witness statement in the advent of the overriding objective principle. Mr. Kyariga argued that the names indicated in the witness statement differ from the names stated by the witness in court and that for this reason the statement should be rejected. Without much ado, I find this argument wanting in merits. I say so because the witness (PW1) while under oath in the witness box, told the Court that he is the one who made the statement in dispute. Thus, Mr. Nyariga would require contrary evidence to rebut the assertion that it is PW1 who made the statement and that, at any rate, cannot be a point of objection. 9 Whereas I agree with the learned defence counsel that the witness statement should abide by the requirements of law under Order XVIII of the Civil Procedure Code, I am nevertheless of the firm view that not every deviation renders the witness statement inadmissible. All said and done, I hereby overrule all the grounds of objection. In consequence thereof, I hold that the witness statement of PW1 MARCO KAPINGA dated 29th August 2024 is legally admissible to form part of his testimony in chief. No order as to costs. It is so ordered. Dated at Dar es Salaam this 22nd day of October 2024. A.A. Mbagwa JUDGE 22/10/2024 Court: The ruling has been delivered in the presence of Mr. Ayubu Sanga (SA), Mr. Stephen Biko (PSA), Mr. Mathiew Fuko (SA), Mr. Siyumwe Mubanga (SA), and Ms. Pauline Msanga (SA) for the plaintiffs, on the one hand, and on other hand, Mr. Emmanuel Daniel Sagan and Mr. Elly 10 Mkwawa, learned advocates for the 1st defendant and Mr. Kyariga Nyaisa Kyariga, learned counsel for the 2nd defendant this 22nd day of October 2024. A.A. Mbagwa JUDGE 22/10/2024 11