IVEE Infusions EPZ Limited vs MARK Medics Limited (Civil Appeal No. 155 of 2021) [2024] TZCA 793 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA. J.A.. MWAMPASHI. J.A.. And MGEYEKWA. J.A .^ 1 CIVIL APPEAL NO. 155 OF 2021 IVEE INFUSIONS EPZ LIMITED ................................................ APPELLANT VERSUS MAK MEDICS LIMITED ..................... ................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Commercial Division at Arusha) (Maqoiga, 3.) dated the 8tl! day of July, 2020 in Commercial Case No. 3 of 2019 JUDGMENT OF THE COURT 16th & 21st August, 2024 NDIKA. 3.A.: The appellant, Ivee Infusions EPZ Limited, is contesting the decision of the High Court of Tanzania, Commercial Division at Arusha, which dismissed its lawsuit against the respondent, Mak Medics Limited. The court did so after upholding the respondent's preliminary objection against the competence of the appellant's sole witness statement in support of the lawsuit, which had alleged breach of contract. The case's essential facts are as follows: The appellant, as previously mentioned, filed a lawsuit against the respondent for judgment and decree to recover an outstanding sum of US$ 291,999.30 for

pharmaceutical products that were supplied to the respondent between March 2014 and October 2017. The appellant also sought interest on the said sum of money and the costs of the action. The respondent, on the other hand, denied liability, asserting that the invoices that the appellant claimed were unpaid were inaccurate. On this basis, the respondent moved for the dismissal of the action with costs. The action was presented for the final pretrial conference on 5th August, 2019, after the pretrial processes had been completed following the completion of the pleadings. The trial court, on that day, directed the parties, among others, to submit their respective witness statements within fourteen days in accordance with rules 49 (1) and 50 of the High Court (Commercial Division) Procedure Rules, 2012 ("the Commercial Court Rules"), as amended by Government Notice No. 107 of 2019. The said order was adhered to by both parties. Mr. Boniface Joseph, the then learned counsel for the respondent, demurred on 11th February, 2020 while the suit was still pending that, the sole witness statement made by Sunilchandra V. Shah on 16th August, 2019, in support of the appellant's case, was defective for non-compliance with rules 49 (1) and 50 (1) (a) - (i) of the Commercial Court Rules. 2

Mr. George Mwiga, the appellant's learned counsel at the time, acknowledged the point raised in the preliminary objection during the hearing on 1st July, 2020, but maintained that the defect was merely a matter of form and not substance. Nevertheless, he implored the trial court to strike out the aberrant witness statement, as he also requested that the appellant be exempt from paying the costs of the action. Mr. Joseph, on the other hand, contended that the statement's irregularity was the result of a violation of binding legal provisions. He argued that since the appellant's counsel had acknowledged the defect, the statement should be thrown out. He was unwavering that this course of action would ultimately lead to the suit being dismissed with costs due to a lack of evidence to support it. The learned counsel cited two decisions of that court sitting at Dar es Salaam to substantiate his submission: Puma Energy Tanzania Ltd. v. Spec-Check Enterprises Ltd., Commercial Case No. 19 of 2014 [2016] TZHCComD 2089 [2n dJune, 2016; TanzLII] and NIC Bank Tanzania Limited v. Hirji Abdallah Kapikulila, Miscellaneous Commercial Application No. 253 of 2017 [2018] TZHCComD 36 [2n dMarch, 2018; TanzLII]. In essence, the learned counsel equated the absence of a witness statement in support of an action with the failure to prosecute the matter. 3

In its determination, the trial court reasoned that: "... the filed statement for the plaintiff in this suit [the appellant herein] is incurably defective, as readily conceded by the learned counsel for the plaintiff. Both learned advocates for the parties are at one that, the consequence is to strike out the witness statement but with different views [on whether costs should be awarded]." Therefore, the appellant's solitary statement in support of their claim was struck out by the court. The trial court's perspective on the suit's future in the wake of the expurgation of the solitary statement was as follows: "It is no gainsaying ... that, under rule 49 (1) o f the Rules, in any proceedings commenced by a plaint, as in the present suit, the evidence in chief shall be given by a witness statement on oath or affirmation. It is the considered opinion o f this Court, therefore, that, in terms o f rule 49 (1) o f the Rules read together with section 53 (2) o f the Interpretation o f Laws Act [Cap. 1 R.E. 2002] the word 'shall' used in rule 49 (1) o f the Rules, connotes a mandatory duty on the parties to file witness statements, and hence, failure to comply with rule 49 (1) for failure to file witness statement 4

is tantamount to failure to procure a witness in court to give evidence to prove or disprove the case." Thus the trial court dismissed the action for lack of evidence to support the appellant's claim, citing its previous decisions in Barclays Bank (T) Limited v. Tanzania Pharmaceutical Industries & 3 Others, Commercial Case No. 147 of 2012 (unreported) and Afriscan Group (T) Limited v. Said Msangi, Commercial Case No. 87 of 2013 [2015] TZHCComD 20 [14th May, 2015; TanzLII], which emphasised the binding requirement for filing a proper witness statement under the Commercial Court Rules. The appellant initially lodged four grounds contesting the said decision. In essence, the said grounds raised two complaints: one, that instead of dismissing the suit, the trial Judge should have allowed the appellant to amend the statement or file a new one in accordance with the Commercial Court Rules and the overriding objective principle to attain substantive justice. Two, that the trial Judge erroneously construed and applied rules 49 and 50 of the Commercial Court Rules as mandatory provisions while, as rules of procedure, they are merely handmaids of justice. 5

During the hearing of the appeal, we allowed the appellant's counsel to argue an additional ground of appeal, in pursuance of rule 113 (1) of the Tanzania Court of Appeal Rules, 2009. The said ground faults the trial court for dismissing the whole suit without considering that the respondent had admitted indebtedness to the appellant to the tune of US$ 132,639.30. Messrs. Karoli V. Tarimo and Dennis Mwesiga, learned advocates, represented the appellant at the hearing before us. Mr. Ipanga Kimaay, learned counsel, stood for the respondent. Mr. Tarimo highlighted the written submissions he lodged in support of the appeal during his oral argument. In essence, he acknowledged that the appellant's sole witness statement in support of the claim was found to be defective, and as a result, it was appropriately thrown out by the trial court upon concession by the appellant's counsel. In addition, he conceded that the said purged statement could not be amended, as it had legally ceased to be part of the record. Nevertheless, he posited that the Court could have invoked the overriding objective, which is to ensure that substantive justice is attained in every case, by allowing the appellant to submit a new witness statement in support of the suit. 6

As regards the additional ground, Mr. Tarimo faulted the trial court for dismissing the suit in its entirety without considering that the respondent's witness, Mr. Galinga Makongoro Nyiriza, had admitted indebtedness to the appellant to the tune of US$ 132,639.30 out of the total claim of US$ 291,999.30, as evidenced by paragraph 9 of his statement, which is on pages 129-131 of the record of appeal. He argued that the court should have applied Order XII, rule 4 of the Civil Procedure Code, Cap. 33 ("the CPC") to enter judgment on admission in respect of the admitted amount of the total unsettled claim. Mr. Kimaay amplified his written submissions in his rebuttal, endorsing the trial court's reasoning and decision to strike out the offending statement and dismiss the entire suit. In terms of whether the trial court should have considered and awarded the admitted liability for payment of US$ 132,639.30, he initially advocated for the complete dismissal of the claim, as the witness statement depicting the admission of liability was not yet accepted as evidence-in-chief at the material time in accordance with the Commercial Court Rules. However, when the Court enquired whether it would be appropriate, just, and equitable to disregard the respondent's avowed liability to the appellant, he responded in the negative. 7

At the outset, we believe it is appropriate to extract the provisions of rules 49 and 50 of the Commercial Court Rules that govern the requirement of submitting witness statements, as well as the content and format of these statements: "49.-(1) In anyproceedings commenced by plaint, evidence-in-chief shall be given by a statement on oath or affirmation. (2) The statement shall be filed within fourteen ' days o f the completion o f the final pre-trial conference and served as directed by the Court: Provided that, the obligation of a party to serve a witness statement shall be independent o f the other party's obligation to file and serve his respective statement. 50.-(1) A witness statement shall- (a) be made on oath or affirmation; (b) contain the name, address and occupation o f the witness; (c) so far as reasonably practicable, be in the intended witness own words; (d) efficiently identify any documents to which the statement refers without repeating its 8

contents unless this is necessary in order to identify the document; (e) not include any matters o f information or belief which are not admissible and where admissible, shall state the source o f any matters o f information or belief; (f) neither contain lengthy quotation from documents or engage in legal or other arguments; (g) be dated and signed or otherwise authenticated by the intended witness; (h) include a statement by the intended witness that he believes the statements of fact in it to be true ; and (i) be in numbered paragraphs. (2) The witness statement shall be substantially in the Form prescribed in the Third Schedule to these Rules." [Emphasis added] Initially, rule 49 (1) and (2) above establishes an imperious obligation for the parties to proceedings initiated by plaint in the High Court, Commercial Division, to submit their respective evidence-in-chief by lodging witness statements within fourteen days of the conclusion of the final pre-trial conference and have them served in accordance with the court's directive. The content and form of a witness statement are 9

regulated by Rule 50. Sub-rule (1) of that rule specifies the content of every witness statement, while sub-rule (2) demands that every statement be substantially in the form prescribed in the Third Schedule to the Commercial Court Rules. In this case, it was common ground before the trial court and this Court that, the witness statement in issue flouted rules 49 and 50 such that it was irredeemably defective. It is evident that the statement was not made on oath or affirmation, nor did it contain a statement by its maker of his belief in the veracity of the factual assertions made. Additionally, the statement lacked a jurat of attestation, which would have provided information regarding the name of the Commissioner for Oaths, the location, and the date of the witness statement. In this context, we understand the appellant's concession before the trial court to the protestation by the respondent, culminating in the striking out of the witness statement. The tenability of this determination was not questioned by Mr. Tarimo before us. Mr. Tarimo initially appeared to contest the dismissal of the action and urged us to invoke the overriding objective to ensure substantive justice by permitting the appellant to submit a new witness statement. However, he ultimately shifted his attention and focused on the additional 10

ground of appeal raising the question of whether the trial court should have considered the fact that the respondent had admitted a portion of the debt when dismissing the suit. It may be beneficial to mention that the trial court has consistently interpreted a party's failure to submit a bundle of witness statements in support of its case as an act that constitutes failure to prosecute or defend a case - see, for instance, Barclays Bank (T) Limited {supra), Afriscan Group (T) Limited {supra) and Puma Energy Tanzania Ltd. {supra) and NIC Bank Tanzania Limited {supra) referred to by the learned trial Judge in his ruling in this case. In accordance with the Commercial Court Rules, the sole method by which a party may introduce evidence-in-chief is by submitting witness statements. By the same parity of reasoning, the trial court, in this instance, equated the absence of the evidence-in-chief following the striking out of the sole witness statement with failure by the appellant to prosecute the suit, culminating in its dismissal. We wish to reiterate that the trial court's current perspective is above reproach in this matter, even though this Court has not yet issued a decision on the matter. This is in accordance with the submissions of the learned counsel. In view of the foregoing, we address the issue of whether the trial court should have considered the respondent's admission of a portion of 11

the claim, which amounts to US$ 132,639.30, before dismissing the appellant's claim for the sum of US$ 291,999.30 for want of prosecution. This admission is detailed in the witness statement on record that Mr. Tarimo referenced, as hinted earlier. To ensure clarity, we reproduce paragraphs 8, 9, and 10 of that statement as follows: "8. That all along the Defendant [the respondent herein] has been fulfilling its part in the agreement in the payment for the products supplied to it by the Plaintiff [the appellant herein] and matters related to registration o f products with TFDA. The Defendant was surprised to receive a demand letter from the Plaintifffor [the] claim o f US$ 291,999.30 allegedly arising from the supplied products stated in paragraph 4 hereinabove. 9. That upon receipt o f the Plaintiff's Plaint, the Defendant scrutinized and made verification and reconciliation on its accounts and discovered the outstanding sum due to the Plaintiff [is] US$ 132,639.30. 10. The Defendant prays for an order that the outstanding money due to the Plaintiff is as stated in paragraph 9 hereinabove." It seems that the Commercial Court Rules do not offer any guidance on the matter at hand. However, we are aware that the trial court is required to apply the CPC in the event of a gap in the Rules, as stipulated in rule 2 (2) of the Commercial Court Rules. Order XII, r.4. of the CPC relied upon by Mr. Tarimo provides thus: 12

"Any party may at any stage o f a suit, where admissions offact have been made either on the pleading, or otherwise, apply to the court for such judgment or order as upon such admissions he maybe entitled to, without waiting for determination o f any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just." [Emphasis added] The above provision, in its ordinary and natural meaning, enables a trial court to render a judgment on admission based on admissions of fact made either in the pleading or otherwise, upon application by a party. The inquiry at hand is whether the trial court should have considered the admissions of fact mentioned above and subsequently issued a judgment on the admitted claim in the interest of justice, fairness, and equity, even though the appellant did not specifically request it, rather than dismissing the entire claim. It is acknowledged that the trial court dismissed the suit prior to the appellant's motion in accordance with Order XII, rule 4 of the CPC. Consequently, it was unable to adjudicate and render a decision on the tenability of the admitted claim before the dismissal complained of. Nevertheless, we have carefully considered the matter in light of the 13

concurrent submission by the learned counsel for the parties that it would be unjust, unfair, and inequitable if, despite the respondent's admission of partial liability, no order be made in favour of the appellant and the entire suit remains dismissed. The unique circumstances of this case require us to disregard the application of the law in a manner that evades substantive justice. Substantive justice must always prevail over procedural or technical justice in the context of the overriding objective principle as outlined in sections 3A and 3B of the Appellate Jurisdiction Act, Cap. 141. Certainly, we do not seek to establish a principle of general applicability in this case with respect to the interpretation and application of Order XII, rule 4 of the CPC. However, we believe that the appellant was entitled to the acknowledged amount of the outstanding debt, taking all factors into account. A different conclusion would lead to the respondent's unjust enrichment. We are of the opinion that there is no compelling need to resolve the appellant's initial grounds of appeal. Considering the aforesaid appeal determination, they are no longer the deciding factor in the matter. Mr. Tarimo pursued the additional ground in this context, forsaking the two original complaints. 14

Ultimately, we allow the appeal to the extent that has been designated. Consequently, we render judgment in favour of the appellant in the amount of US$ 132,639.30. The appellant's remaining claim stands dismissed. Due to the circumstances of this case, we order each party to bear its own costs. DATED at ARUSHA this 20th day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 21st day of August, 2024 in the presence of Ms. Anna Kivuyo holding brief of the Denis Mwesigwa, learned counsel for the Appellant and Mr. Ipanga Kimaay, learned counsel for the Respondent, is hereby certified as a true copy of the original. 15