Tedo v Republic (Criminal Appeal No. 41 of 1997) [1999] TZHC 513 (22 November 1999)

26 TANZANIA LAW REPORTS [2001] TLR. A Mr Warioba is against rule 31 (1) of the rules; that decision of majority creditors is of persuasive force (cited: Amiral Meghji - the Debtor (2) and Indian Building Constructors Ltd v. R B Purohit (3). In Re: St. Thomas ’ Dock Company (4), In Re: Uruguay Central andHygueritas B Railway Company of Monte Video (5), Re: Home Remedies, Ltd (6), and that Chandes (contigent creditors) by the end of June, 1998, were totally controlling and managing the affairs of the petitioner Companies, thus “ they and their associated companies are ... accountable c for the affairs and financial position of the companies ” and that their acts would be scrutinized and decided upon by creditors ’ meeting if prayers are granted. He insisted, Fahari Beverages Ltd is a company floated by the Chandes for the purpose D of restructuring and hive down. This is mentioned in the letters ... signed by Chande. I have detailed the submissions and arguments purposely. Although the application seems to be a simple one, a decision thereon affects E a substantial group of companies let alone other interested parties including objectors. Arguments and submissions regarding their fate therefore should clearly be put to the fore. I should start by stating that I stand indebted to the counsel ’ s (of F both sides) able submissions. Not only that but also for availing me copies of authorities cited - 1 think, in a responsible recognition of the wanting nature of our Library facilities. For an organized flow of findings, I will not follow the sequence of titles and paragraphs as designed by Mr Ng ’ maryo and paraphrased at the beginning of this ruling. Where necessary I will interchange them or argue them together. H I will start with the question of the objectors ’ locus standi. As rightly submitted by the objectors, I have been at pains to understand what Mr Ng ’ maryo meant by insisting that in order for the objectors to have locus standi they should have proved the existence of debts! The objectors duly filed notices upon the petitioners ’ advertisements

FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS ...OBJECTORS 27 regarding their petitions for winding up. They duly appeared before a the provisional liquidator represented by counsel. Their respective directors swore affidavits showing the extent of indebtness by petitioners

• Crown Cork, USD 186,288, Kioo Ltd TZS. 1 139 814 292; out which TZS. 225 000 000 forms a provisional liquidator decree; Stanbic b Bank, USD 1 193 199 99; M/S M and M Communications Ltd TZS. 68 333 9090-20 and USD 773-39, subject of (HC) Civil Case Number 268 of 1998; Abdillah Mikidadi, TZS. 10 000 000, for wrongful termination, subject of Civil Case Number 283 of 1996 at Kinondoni c District Court; NBC (1997) Ltd a total of TZS. 7 300 378 428 [broken up as follows:- Ruaha Bottlers - TZS. 298 541 705 Southern Highlands Bottling Co. - TZS. 137 679 230; Fahari Fruits Products Ltd - TZS. 184 409 767, West Lake Bottlers Ltd - TZS. 130 787 172; Fahari Bottlers Ltd - TZS. 6 399 463 939], Shinyanga Bottling Company Ltd - TZS. 149 496 615, Trust Bank (Tz) Ltd, TZS. 688 000 000; TIB, TZS. 269 036 877-92. The directors of the contingent creditors (Girish T Chande, Ashock T Chande, Ravi T Chande, JV Textiles and Garments Ltd M/s Juthalal Verji Limited) swore affidavits to show that they guaranteed various loans extended to petitioners. What else does Mr Ng ’ maryo wish to be proved in order for these parties, who stand to lose in case the petitioners die miserably insolvent, to be able to stand in provisional liquidator to defend their interests? F The objectors ’ Notices to Appear in the petitions and their affidavits stand as sufficient evidence conferring unto them the locus standi required in the respective pettitions. As rightly submitted by them, in any case, this is not the right moment for proving the exact debts/ liabilities. Coupled with this, the petitioners who self-confessed of being deeply indebted to various parties did not challenge the objectors ’ affidavits regarding the debts nor regarding the contingent creditors that they guaranteed various loans. Mr Ng ’ maryo who knows H it well, being a seasoned lawyer; is aware that an affidavit is evidence and cannot be assailed by mere submissions as he is trying to do. Suffice to conclude that the objectors are properly and legally before this court.. I

28 TANZANIA LAW REPORTS [2001]T.L.R. A Next to consider is whether it is proper to appoint a provisional liquidator. This should not detain us at all. All counsel concede that this is purely legal and the law so provides, section 183(1) of Chapter 212 (Companies Ordinance) provides: Subject to the provisions of this section, the court may appoint a liquidator or provisionally at any time after the presentation of a winding-up petition and before the making of a winding-up order, and either the official receiver or any other fit person may be appointed. C Rule 31 of the Companies (Winding-Up Rules, 1929) provide further: After the presentation of a petition, upon the application of a creditor, or of a contributory, or of the Company, and upon proof by affidavit of sufficient D ground for the appointment of a provisional liquidator, the court, if it thinks fit and upon such terms as in the opinion of the court shall be just and necessary, may make the appointment. Do facts and circumstances of the controversy before this court E warrant appointment of provisional liquidators? On this point, the counsel have made reference to various persuasive foreign decisions on what the court should consider in exercising its discretion towards that end - Re: Dry Docks Corporation of London (7), Re: Hammersmith F Town Hall Company (8), Re: High-field Commodities Ltd (9). The enunciated principles boil to what is contained in the headnote to the report of the judgement in Re High-field ’ s case: The court would not usually exercise its powers ... to appoint a provisional G liquidator unless there was at least a good prima facie case for a winding- up order. However, the courts ’ Power to appoint provisional liquidator (is) general in scope and (is) not restricted to cases where the company was obviously insolvent or where it was otherwise clear that it was bound H to be wound-up, or where the company ’ s assets were in jeopardy. Furthermore the power (is) discretionary, and in addition to being required to be exercised judicially, the need for the exercise of the discretion should outweigh the consequences to the Company ... In particular where the grounds for j winding up pettition ... was expedient in the public interest, the public interest should be given full, though not conclusive, weight.

FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC(1997) LIMITEDANDOTHERS ... OBJECTORS 29 The above quoted being a common law stand and not in derogation A of the law as already quoted has full blessing of this court, for it potrays what the law is in this country as well. The petitioners have self-confessed of being in deep insolvency. They have filed petitions for voluntary winding-up. Prima facie therefore, B a winding-up order is likely to be issued. The petitioners have categorically stated: All the ten companies are interlinked in their businesses, finances, directors and shareholders and have confessed of having “ hived-down ” their assets to another newly formed company. Naturally, this state of affairs sets in uncertainty regarding the stability and safety of the assets let alone the dealings, and loudly threatens the interest of the creditors and shareholders. In the circumstances, a provisional liquidator is required, among others to D investigate these dealings, collect and protect the assets. For that reason, I answer the question I had posed at the beginning, positively. Foilowing on heels to the above is - what powers should this provisional liquidator have. The objectors save NBC (1997) Ltd urge for very limited powers and not as insisted upon by petitioners. They insist instead that the provisional liquidators are only appointed for preservation of the f petitioner ’ s assets - maintain status quo, and that legally a provisional liquidator cannot engage in restructuring or composition of any Scheme of Arrangement (cited the Re: Dry Docks (7) and Hammersmith (8) cases whose citation has already been provided above). On whether G restructuring is essential and indispensable to recapitalization of Pepsi-Cola business in Tanzania, they argue that petitioners being insolvent and out of business no meaningful restructuring can be made; that it is superfluous to the petitions and that creditors should not be compelled on a course whose extent of the alleged benefit has not been disclosed and more so in relation to creditors. I should start by stating the obvious that neither the Companies Ordinance nor the “ Rules ” made thereunder specifically provide powers j

3(1 TANZANIA LAW REPORTS [200l]T.L.R. A which have to be conferred upon provisional liquidators, section 183(2) of the Ordinance and rule 31 of the Winding up Rules, refer to powers of a provisional liquidator in an assumptive manner. They provide: B ’ 183(2) Where a liquidator is provisionally appointed by the court, the court may limit and restrict his powers by the order appointing him. Under rule 31 the court, (regarding a provisional liquidator), “ (i) ... if it thinks fit and upon such terms as in the opinion of the court shall be just and necessary, may make the appointment (ii) The order appointing the provisional liquidator ... shall state ...the duties to be performed by the provisional liquidator. ” o On the basis of the quoted law, it is clear that the court is vested with unlimited discretion regarding what powers should be bestowed on provisional liquidators. For that matter I am in full agreement with Mr Ng ’ maryo that the court is empowered to give powers including E those provided to the liquidator under section 190 through 193 of the Ordinance. What powers should be given are left to the wisdom of the court. I cannot therefore buy the objectors ’ contention that provisional liquidator ’ s powers is limited to only investigating the affairs of the petitioners, collection and preservation of the petitioner ’ s assets. Depending on the facts of a particular case, provisional liquidator ’ s powers can loom into restructuring action and making of a Scheme of Arrangement or any other activity deemed proper by the court to be in the interests of the creditors/shareholders. G The counsel for both camps cited authorities in support of their respective stands - some of the objectors cited Re: Dry Docks (7), Re: Hammersmith (8) and High-field ’ s (9) cases while Ng ’ maryo for pettitioners cited, among others, Re: Amirali Meghji (2); Indian Building Contractors Ltd v. RB Purohit (3). The latter cases show that a provisional liquidator has powers ever to make restructuring or arranging a Scheme of Agreement, which stand, I fully support in view of the blank cheque given by the law (above quoted) to the 1 court. There is yet another support from a recent Commonwealth

FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS ...OBJECTORS 31 decision, decided just last year (1998) (Mujulizi, learned counsel, A stands commended for unearthing it) which shows that provisional liquidators not only can they be given powers to preserve but also to dispose off the petitioner ’ s property (In the Matter of Peregrine Investment Holdings Ltd (10) and In the Matter of the Companies b Ordinance Chapter 32, decided by the High Court of Hong Kong Special Administrative Region, Companies Winding-Up (10). An excerpt from the judgement runs as under - provisional liquidators were appointed ... C The Order appointing the provisional liquidators provided that the liquidators could sell or dispose off any assets by way of private treaty tender or auction upon such terms as the provisional liquidators may deem appropriate subject only in the case of sales of subsidiaries or entire business divisions ® to the liquidators obtaining leave to do so from the court. I am satisfied that as the law stands now, provisional liquidators can be bestowed with any powers ranging from investigating petitioners E affairs, collection of assets to selling or disposing of the same or some other duties including designing a Scheme of Arrangement that would be beneficial to all the parties involved and which the latter should agree to before presentation to the court for approval or otherwise. F Now, back to the specific question, on the facts of this particular case what specific powers should be conferred on the provisional liquidator? G My first reaction is that they should not be limited as proposed by the majority objectors but rather should be wide enough to cover a formulation of a Scheme of Arrangement. I have reached this conclusion because of the following, first, it would seem that there is a confusion h regarding the centre of controversy. The arguments presented by the objectors seem to suggest that there is already in place a Scheme of Arrangement which they are being called upon to agree to. One of the objectors charges thus: ,

32 TANZANIA LAW REPORTS |200l]T.L.R. A It is therefore manifestly clear that there has already been a transfer or attempt to transfer the assets. What then are the provisional liquidators to take charge of? Aren ’ t they being appointed simply to inherit and adopt the already prepared Scheme, thrust it at the creditors and call for a vote B from a number of already approving creditors who are in the majority anyway? Isn ’ t the court being called on to rubber-stamp an already made Scheme, with the secured creditors being sidelined as mere by-standers? And yet another objector lauched a similar serious attack in the following c words: It is ridiculous therefore my Lord for a debtor to compel a creditor to agree to a course of action of whatever description which does not appear to be beneficial to him considering the fact that there is no real guarantee that recapitalization process will deliver any positive results. My Lord, it is our further submission and we pray that this honourable court of law should not be used as conduit pipe for debtors finding the leeway of technically avoiding debts on sheer mechanism such as restructuring and recapitalization E which were at their disposal long way ago to the detriment of the creditors. To clear the air, I should say that I am surprised by these submissions. I know from the record that Finn and Murphy had already embarked on a formulation of a Scheme of Arrangement. I also get a feeling that whatever was proposed arose serious misgivings among the objectors. Well, that may be correct but for the purposes of this application there is no scheme whatsoever in existence. The petitioners and objectors alike may feel that in case provisional liquidators are empowered G to formulate a Scheme of Arrangement, the already compiled proposal may find its way into the new scheme. That should not be our concern now. A decision to utilize which material and from which source will lie with the person appointed - that ’ s why a neutral, unbiased H person is required. At the same time, it is not correct to say that a Scheme of Arrangement would be brought to the court for simply rubber stamping. The scheme will have secured the blessings of the creditors/shareholders. The

FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS ...OBJECTORS 33 court ’ s duty is not to rubber-stamp but rather to scrutinize the Scheme A of Arrangement formulated, satisfy itself on the response of creditors/ shareholders and whether the Scheme itself is fair and equitable and for the benefit of all parties concerned. Only after being satisfied with the above perfection would the court approve the Scheme. It is b not mandatory that the court should approve such Scheme. It may reject the same or order for amendments. While still on that, it should be noted that it is not mandatory that such a provisional liquidator must formulate a Scheme of c Arrangement. He would be empowered to formulate one but during his investigations he may get convinced that a Scheme of Arrangement is unworkable in the circumstances or not beneficial to the creditors. In such situation he is not bound to formulate any. He would then D inform the court accordingly for winding up process to proceed. What is the gauge of his duties? Whatever he does should be in the best interest of the creditors/shareholders. That ’ s why I have not and will not bother to make a finding on the weight to be attached to E percentages of creditors as regards their support on the scheme orchestrated by Mr Ng ’ maryo and elaboratively responded to by the objectors, counsel. It is premature to argue on the percentage of creditors that support a scheme or not, for, at this point there is none. F Insisting on merely winding-up without giving leeway to the provisional liquidator to survey for another beneficial option may not lie in the interests of creditors. 10 companies are involved. They have effected a hive-down on the assets to a newly created company. They are g miserably indebted to both secured and unsecured creditors (just one creditor claims over TZS. 7 billion). Even if a winding-up order is made there may be not be enough money to pay creditors. Let a provisional liquidator investigate, scan and come out with what is H good for the parties. Arguments have been presented that only limited powers should be given and that the provisional liquidator would be at liberty to apply to court for specific additional powers to embark on restructuring i

34 TANZANIA LAW REPORTS [2001]T.L.R. A or a Scheme of Arrangement if he soon discovers its necessity. Well, this is one mode of approach but compared to what I am suggesting the latter saves time, expedites matters and removes unnecessary delays. Let him leave the court clothed with all the authority and b powers. Let him join the battle armed with all armaments available. It defeats common sense for a fighter to join the battle with a Scheme that he has to check on the strength of the enemy first then rush back to the armoury to equip himself well! c That said, what should these wide powers encompass? We have two versions. The petitioners ’ , as they appear at the beginning of this ruling, and NBC (1997) Ltd. Having carefully considered the arguments, the law, the state in D which the 10 petitioners are, the way the “ hive-down ” has been effected, I settle, with minor variations on NBC (1997) Ltd ’ s proposals regarding powers which should be exercised by a provisional liquidator as follows: E 1. To carry out full investigation into the affairs of the petitioners in order to identify their ( petitioners) assets and property including the hive-down exercise carried out by the pettitioners. 2. To take possession of all the property and assets of the petitioners F wherever they are and by whom ever held and preserve them for the benefit of the creditors until a suitable Scheme of Arrangement is proposed and agreed upon, or if no such arrangement is reached, pending a Winding-Up Order and the appointment of a liquidator. G 3. To prepare a list of all creditors which should be submitted to the court within 3 weeks. 4. To prepare a statement of the petitioners ’ affairs within 5 weeks. U 5. To prepare a proposal for a Scheme of Arrangement, if found feasible, within 6 weeks and apply to the court for an order to convene a creditors ’ meeting to consider and vote upon the scheme. 6. To appoint such persons as he may deem fit to assist him discharge I his duties.

FAHARI BOTTLERS L IMITED v. REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS ... OBJECTORS 35 The schedule within which to take the steps, for one reason or another, a may prove insufficient. In that case, he will be allowed to apply for extension of time. The question of restructuring and its indispensability being a condition precedent to the recapitalization should not take much of B our breath. We have provided wide powers to the provisional liquidator. Armed with that he will investigate full activities of the petitioners and will come up with whether restructuring is necessary and in what form and that ’ s why he is empowered to formulate a Scheme of c Arrangement, which has to be accepted by the creditors and approved by the court. The benefits enumerated by the petitioners should not carry the show of the day for the provisional liquidator has to go into them thoroughly and satisfy himself that they are real and workable D and a not a “ sham ” (to borrow the language of one of objectors ’ counsel). While still on this I should touch the argument that the initial report of provisional liquidators and their words so far done should E not be wasted. I am afraid this court cannot issue an order for his utility. The provisional liquidator should be left free to decide on how to collect the required information. However, common sense would dictate that the provisional liquidator will go for all relevant F materials and contracts, and that report is one of them. It is not of insignificance that the initial provisional liquidators will be paid for whatever they did before being barred. In effect, therefore the initial report is the property of the petitioners. g That said, who should be appointed a provisional liquidator? I should in very certain terms declare that neither Finn, Murphy nor Bomani is fit to be appointed as provisional liquidator - they are disqualified because of their association with the petitioners. Conflict h of interest is very glaring. I was surprised not stunned to hear a seasoned lawyer of Ng ’ maryo ’ s caliber gathering guts and audacity to say that the Court of Appeal in I

36 TANZANIA LAW REPORTS [2001] T.L.R. A Civil Revision Number 1 of 1999 decided on the appointment of Finn and Murphy. He asserts that the matter is res judicata. He declared, the matter therefore ought to and must rest. No one can or should bring it up again unless, and if so, only through further revisional g proceedings in the Court of Appeal. With respect, I am sure that Mr Ng ’ maryo is aware that that submission is fallacious. The Court of Appeal observed: C There is not much to say about the appointment of the two other provisional liquidators (i.e. Messrs Finn and Murphy). At first we had the impression that both resided outside the jurisdiction of the High Court, that is, in London, but on closer examination of the record, it appears that they D have an address within the jurisdiction of the court and is [szc] qualified for appointment as a liquidator. The Court of Appeal did not appoint (and could not in the circumstances) provisional liquidators. If so, as rightly fronted by the objectors, E why bring the same matter before this court which is subordinate to the Court of Appeal? Although Mr Ng ’ maryo capitalizes on those observations he forgets or deliberately, fails to make reference to the final order of the F court, which among others states. The proceedings for appointment of provisional liquidators be and are quashed. G Clearly, and as rightly submitted by the objectors, the observation of the court relied upon was obiter dicta. In any case, having quashed the proceedings which appointed them, on which ground then can the purported appointment stand? H The suitability or otherwise of Murphy, Finn as is the case with Bomani is now what is before this court for determination. And I have already indicated that the trio do not qualify because of conflict of interests. As was stated in Peregrine case already referred to above: I

FAHARI BOTTLERS LIMITED v REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS ... OBJECTORS 37 It is the task of the provisional liquidators to get in the assets on behalf of A the creditors and shareholders. They stand in the position of trustees ... Trustees are never permitted to be or remain in a situation where they have a conflict of interest. That rule is crucial to the proper administration B of the relevant trust. The dual role of the liquidator ’ s firm should have been disclosed to the court at the earliest opportunity. In that case the provisional liquidators had been performing auditing duties to the other party and this was concluded upon to be client relationship hence, existence of a position of having conflict of interests. Again, in7?e: Charterland Goldfields (11) a liquidator was disqualified for similar reasons-it was stressed: The liquidator of the company must be a person who will act independently, D especially of those against whom there may be pending claims, and will discharge his duties without favour to either side. Where it appeared that the liquidator in the Voluntary Winding-Up of a company had an intimate business connection with several of the directors of company, who were also directors of other companies between which and the company in question there had dealings requiring investigation, the court being of the opinion that he was not in a position to take independent course in making the necessary investigations, made an order removing F him from the office of liquidator, and appointed another liquidator in his place. The objectors in here have sufficiently proved that there is client relationship between Finn, Murphy and petitioners. The two personalities have been engaged in the negotiations with some of the creditors on behalf of petitioner, let alone formulation on the restructuring proposal long before the petitions were filed. They have been negotiating with NBC on behalf of petitioners regarding their indebtness proposing H in the process debt - compression. The objectors ’ fear that they may put into effect whatever plans and recommendations they have had in their capacity as professional advisors to the Fahari Group are not far fetched. On the other hand it has amply been proved that I

3S TANZANIA LAW REPORTS [2001] T.L.R. A Mr Bomani ’ s Chambers were being used by the petitioners for clearance of their correspondences. Mr Ng ’ maryo ’ s urge that the relationship ended but as that has been contradicted by evidence that fees were paid for services. Also it has not been explained why, if the services B ended at mail delivery arrangement, didn ’ t they use Eric N. Mahayo partnership chambers just within reach. In any case, there are very telling correspondences whose copies were sent to Mr Bomani and which clearly show that he was engaged c in some negotiations between the newly formed company, Fahari Beverages Company Ltd and NBC. The former is the company to which the petitioners transferred their assets. Even an angel would not trust that Mr Bomani would not take sides in a conflict, as the D one in existence, between objectors and petitioners. As provisional liquidators are expected to protect the interests of the creditors, any person who has any connection in terms of business dealing between him and petitioners is outrightly disqualified E from appointment to that position, for, conflict of interest is the very obvious. Here it is not a question of qualification and experience. The trio no doubt excel in this. And it is not a question of acting in the interest of the creditors. It must actually be seen that it is done. F provisional liquidators must not have tainted let alone suspicious trust in the eyes of the creditors. The trio is obviously netted in the latter and is accordingly disqualified. Who should be appointed? The objectors propose Mr Joseph Warioba. G The petitioners object to the proposal arguing that there is no application as such as rule 8(1) of the “ Rules ” has not been complied with; that he has not given his consent as the one he submitted is in respect of a different company and that his qualifications and expertise have not H been proved. Indeed, for an application for a provisional liquidator to be properly before the court there must be a chamber summons supported by an affidavit - the Court of Appeal in Civil Revision Number 1 of 1999 1 is clear on this as is rule 8(1) of the “ rules ” . However, with respect

FAHARI BOTTLERS LIMITED v REGISTRAR OF CO; NAS AND NBC (1997) LIMITED AND OTHERS .. < HM! ( H 39 to Mr Ng ’ maryo, what the objectors are proposing is not an apphcNUon a for appointment of a provisional liquidator as much, but who should fill in that position once an application to appoint is allowed. The petitioners were the ones who applied for appointment of provisional liquidator and that is the application which is before us. b Proposing a name is just ancillary to the main application. The petitioner could even have simply filed the application without naming a person leaving it to the court to scan around and pick a fit person. The objectors are simply proposing whom they think, once the application c is granted, can fill up the position. I cannot imagine the legislature passing such unreasonable a law which sets up a procedure as proposed by Mr Ng ’ maryo. I am of the settled view that in proposing a name of a person fit to be appointed a provisional liquidator by objectors D after the petitioner or any person has filed an application for his appointment does not require the filing of a chamber application supported by affidavit. That requirement stands only for the initial application, in this case, the one filed by Mr Ng ’ maryo for the petitioners. E Concerning the argument that Warioba did not give consent, while conceeding that he made an error when he consented to be being appointed a provisional liquidator to “ JV Group of Companies ” because there is no petitioner going by that title, I am inclined to agree with F the objectors that that was a slip of a pen. In any case, the law does not state that such consent should be secured before appointment. It may be desirable in order to avoid inconvenience because a person may refuse to take up the task if arbitrarily picked but the law as it g stands puts up no such condition to the court before so appointing. The same is the case with qualifications and expertise. The court simply picks on a “ fit ” person. In doing that, the court will rely on various factors including judicial notice of the standing of particular H person or upon receipt of proposals. The objectors have come up with a proposal. As was observed by the Court of Appeal Civil Revision Number 1 of 1999: i

40 TANZANIA LAW REPORTS [2001]T.L.R. A .. .After all the provisions liquidators were expected to protect the interest of the creditors, and it is only fair that such creditors be given opportunity to play part in the proceedings for appointment of liquidators ... The objectors, all of whom except one are represented by advocates, B and able ones for that matter, have proposed Mr Warioba. Is it possible that this formidable group can come up with a personality who is incapable of protecting its interests? I am not persuaded by Mr Ng ’ maryo in this respect. I thus hold that Mr Joseph Warioba is a fit person to c be appointed a provisional liquidator of the petitioners. In any case, he is just a provisional liquidator. The task will surely involve engaging various professionals and that ’ s why it has specifically been provided that he can appoint any fit person to assist him. For that matter, he D is not precluded from seeking assistance from Finn, Murphy or Bomani. What is important is not who does what but who controls what is being done, who decides on direction to be taken, who makes a decision before matters are presented to creditors and to court. E We come to the remuneration to which the provisional liquidator is entitled. Here we have three scenarios proposed 12.5% by petitioners, 5% by the rest of the objectors except NBC which proposes that the liquidator be called upon to chart his duties and activities and quote F his charges. The contingent creditors leave it to the wisdom of the court. It is unfortunate that neither the Ordinance nor the rules provide a definite answer. The counsel are agreed on this. Those who propose G 5% argue that this is the commonly applied practice in Tanzania in respect of receivership and Liquidation and this is in consonance with the requirements of English Property Conveyancing Act 1881 as applied to Tanzania by Chapter 114 of the Laws. While I have not H been able to understand the basis of Mr Ng ’ maryo ’ s urge to have his clients pay a higher charge of 12.5% (he argues that the enormity and complexity of the task call for that percentage) I have been persuaded by the counsel for NBC that using a “ percentage ” criteria on the I gross realization in awarding the provisional liquidator ’ s remuneration is wanting.

FAHARI BOTTLERS LIMITED v. REGISTRAR OF COMPANIES AND NBC ( 1 997) LIMITED AND OTHERS ... OBJECTORS 41 What is that “ gross realization ” ? This would have no problems a in winding up proceedings for there would be sales and disposals. Now, in our case, regard being had to the powers and duties we have placed on the provisional liquidator which realizations will he make? If he manages to formulate an acceptable Scheme of Arrangement b no sales will have been made and even if that fails and winding-up proceedings activated, he will only have collected assets. We have given him no powers to sell. How then will we calculate the 5% of the gross realization? Again, on this I am persuaded that the only c logical step to take is to call upon Mr Warioba to chart out his duties, and the task ahead of him as he perceives it and quote his charges which would then be tabled in court in the presence of objectors for comments and observations before the court makes a decision on an appropriate remuneration. Finally, I will make a brief observation on what the petitioners call ulterior motives by objectors. This charge is too unfortunate, for, there is no scintilla of evidence suggesting what is alleged and E I am glad that though while thus charging the petitioners concede in the same submission: There is no direct evidence that the objectors are actually making a proxy effort to kill the Pepsi-Cola business. F The petitioners ’ conduct, including unclear “ hive-down ” of some of the assets into another newly formed company would naturally generate suspicions, resistance and mistrust on the part of objectors/creditors. Their reactions cannot therefore be faulted. G In conclusion therefore: (a) The Preliminary Objection by Mrs Rwebangira for Kioo Ltd that the pettition by Fahari Bottlers should be thrown out for having h been filed in bad faith is dismissed. (b) The prayer by petitioners that objectors be declared to have no Locus standi is dismissed. I

42 TANZANIA LAW REPORTS [2001JT.L.R. A (c) The application for appointment of a provisional liquidator in respect of the petitioners (the 10 companies) is granted. (d) The prayer that Mark Danhi Bomani, Paul Howard Finn and Kevin Anthony Murphy should be appointed provisional liquidators is dismissed, B on basis of conflict of interest and instead Joseph Warioba is appointed. (e) The prayer that the provisional liquidator ’ s powers should encompass all powers of a liquidator under section 190(l)(a) to (f) and 190(2)(a) to (h) of the Ordinance Chapter 212 is dismissed except as embodied in thier ruling, and which powers are wider than mere collection and preservation of petitioner ’ s assets, for they include formulation of a Scheme of Arrangement. D (f) The prayer that the provisional liquidator ’ s remuneration be 12.5%~ of gross realization is dismissed and instead the person appointed provisional liquidator should sketch his duties and submit his quotations which shall be tabled in court 1 in the presence of parties for decision E within 7 days of the delivery of this ruling. (g) Other prayers, that costs of appointing an advocate and providing security; that all other proceedings in this court, Subordinate Court of Tribunal be stayed pending the winding up order or further, order; F that hearing of the petition be adjourned to a date after the creditor ’ s meeting to vote on the Scheme of Arrangement, if any, and that costs of the application be defrayed from the assets of the petitioners, stand allowed. G (h) The provisional liquidator will be at liberty at any time, to apply to the court for directions and guidance on anything he deems proper and which has a bearing to petitions H I

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 43 SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR a AND ANOTHER HIGH COURT OF ZANZIBAR AT VUGA b (Garba Tumaka, DC. J.) MISCELLANEOUS CIVIL APPEAL No. 5 OF 1999 c (From Civil Case No. 4 of 1997 of the Regional Court, Vuga, Zanzibar) Civil Practice and Procedure - Applications - Application for revision - Circumstances under which such application may be granted. p Jurisdiction - Revision powers of the High Court - Applicant for revision raising substantial issues for determination which can come only by way of appeal — Whether revision powers may be exercised. After losing a civil case in the Regional court at Vuga, the applicant did not appeal but E decided to make an application to the High Court for revision of the matter. Counsel for the respondents raised a Preliminary Objection arguing that the remedy open to the applicant was an appeal to the High Court against the decision of the Regional court and not an application for revision. The High Court considered under what F circumstances it may exercise revision powers. Held: (i) While exercising jurisdiction under section 90 of the Civil Procedure Decree, it is not competent for the High Court to correct errors of fact however gross, or even G errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself; (a) The High Court ’ s powers of revision are only exercisable where no appeal lies; H (b) In the application for revision there are substantial issues for determination which can come only by way of appeal. Application dismissed I

44 TANZANIA LAW REPORTS [2001 J T.L.R. A Cases referred to: (1) Abdu Hassan v. Mohammed Ahmed [1989] T.L.R. 181 (2) Mwanahawa Muya v. Mwanaidi Yaro [1992] T.L.R. 78 B (3) Zabron Pangamaleza v. Joachim Kiwaraka [1989] T.L.R. 140 (4) Kulwa Daudi v. Rebeca Stephen [1985] T.L.R. 117 (5) Venka Tagiri v. Mindu Religious Endowment Board 76/ A. 67,1949 c APC 156 (6) DLF Housing and C. v. Sarup A 1971 SC 232 (7) Abbabhai v. Gulamnabi A. 1964 SC 1341 D (8) Khanna v. Dillon A 1964 SC 1497 (9) Shar v. Jag 54 A 466 Statutory provisions referred to: E (1) Magistrate ’ s Court Act Number 2 of 1984, section 44(1)(6) (2) Civil Procedure Decree, section 79(1) (3) Civil Procedure Code 1966, section (79)(1 ) F RULING (Dated 21 September 1999) G Garba Tumaka, DC.J.: This is an application arising from Civil Application Number 72 of 1999. The applicant, represented by Mr Ussi K. Haji, filed for a revision under section 90 of the Civil Procedure Decree against the judgement of the Regional court, Vuga, Zanzibar H Civil Case Number 4 of 1972 which judgement was given on the 25 January 1999 in the presence of the applicant and the respondents counsel Toufiq, state attorney. Mr Ussi in his chamber application filed a 17 paragraph affidavit 1 with his plaint annexing along some other documents. In it, Mr Ussi

SOUTHERN ESSOv. PEOPLES BANK OF ZANZIBAR AND ANOTHER 45 prayed the court to make orders setting aside the judgement of the a learned Regional Magistrates in the said civil case and declare for him that: (1) The mortgage created between the applicant and the first respondent D was a simple mortgage and hence the mortgage property cannot be sold without the courts approval. (2) The first respondent being a lending institution its decision to sell the applicants house in order to recover the loan was illegal. (3) Merging two of the applicants accounts one of which had no connection with the loan agreement was illegal. (4) Charging the applicant interest of 31% instead of 1% was improper. D (5) The costs of this application and proceedings in the Lower court be paid by the respondent and such further orders as the court may deem fit. Clearly, the applicant is dissatisfied with the judgement of the Regional E court and this is manifested more particularly by paragraphs 5 and 16, to wit, that the Regional Magistrate Court clearly erred in failing to understand the implications of sections 13 and 87 of transfer of Property Decree Chapter 150, Laws of Zanzibar and in so doing F gave a decision which was illegal and full of material irregularity; and that the court in its decision failed to address itself to the question of the first respondent being a lending institution as a result of which it gave decisions contrary to the requirements of justice. G Mr Toufiq has however sought to have this application dismissed by way of Preliminary Objection through an oral application. He began by referring to para B of the applicant ’ s plaint in his chamber application, which referred to the Regional Magistrate “ ex- H parte judgement ” . He described this as misleading and erroneous as both of them (Mr Ussi and himself) were in court when the judgement was given. He posited that, perusing the application, what the applicant ought to be asking for or applying for before this court is an appeal i and not a revision.

46 TANZANIA LAW REPORTS [2001] TLR. A He said the applicant was trying to change the Regional courts decision through the “ backdoor ” instead of appealing which is the proper procedure. He quoted section 90 thus: The High Court may call for the record of any case which has been decided g by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears; (a) to have exercised a jurisdiction not vested in it by law; C (b) to have failed to exercise a jurisdiction so vested; (c) to have acted in the exercise of its jurisdiction “ illegally or with material irregularity, the High Court may make such order in the case as it thinks fit ” . D He contended that the courts power of revision is restricted to the situations covered in Para A, B and C and that the High Court do not have blanket powers. These powers, he said, are limited to keeping the subordinate courts within their jurisdiction. He referred to Sarkar E on Civil Procedure (8 ed 1992) at page 402 where it was stated that the High Court can only exercise its revisional jurisdiction on 3 grounds, which are as of paragraphs A, B and C of section 90. F He submitted also that any court having jurisdiction over a matter may decide it rightly or wrongly. In the present case, he argued the Regional Magistrate Court had jurisdiction to try the case and as far as the points canvassed G are concerned, the courts decision was final, as long as there was no appeal. There was no illegal exercise of jurisdiction or material irregularity in this case otherwise the applicant would have appealed. To buttress his contention, he cited 2 cases, Abdu Hassan v. H Mohammed Ahmed (1) at page 181 and also Mwanahawa Muya v. Mwanaidi Yaro (2) at page 78. The first, he said, held that the revisional powers of the High Court under the Civil Procedure Code are limited to cases where 1 no appeal lies and issues relating to the appropriate exercise of jurisdiction

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 47 by subordinate courts and whether they have acted illegally or with a material irregularity while the second stated that the High Courts powers of revision are usually exercised when exercising its supervisory powers. He was emphatic that since there were serious issues specifically B canvassed by the applicant in his affidavit to be decided by the High Court, it should not and cannot come by way of revision but by way of appeal. c He maintained that where there is a maintainable appeal to the High Court, a revision is not maintainable and in support cited the case of Zabron Pangamaleza v. Joachim Kiwaraka (3) at page 147. He said there were appropriate instances where the revisional D powers of the High Court were applicable but this clearly was not one. He summed up by saying that there were provisions for revisional powers for the High Court where there appeared to be injustice and E no appeal lay. However, where there is no injustice and there are provisions for appeal, the revisional powers of the High Court cannot be exercised. He then urged the court to summarily dismiss the application. Mr Ussi in his reply vehemently opposed Mr Toufiq ’ s submissions F and prayed that the court heard his application. He said his application was made under the provisions of section 90 and “ any others that the court may deem fit ” , not specifically mentioned in his application. He also prayed the court to determine his application alongside the provisions of section 129 of this decree which confers inherent powers on the High Court to “ ... make such orders as may be necessary H for the ends of justice or to prevent the abuse of the process of the court ” . He was asking that the court interfere with a view to removing the injustice occasioned by the judgement of this case. Nothing, he i

48 TANZANIA LAW REPORTS [2001] TLR. A said, prevented the High Court from interfering with the decision of a subordinate court especially where injustice had been occasioned. His application originates from the main Suit Number 4 of 1997, in which, the applicant as plaintiff challenged the decision to sell B his house. He said the main issue was whether the respondent, a commercial institution, had a right to sell the house of the plaintiff/ mortgagor where the mortgagor failed to repay the loan sum, bearing in mind the mortgage deed created was a simple mortgage as defined c in the transfer of property, decree Chapter 150. The decision given by the Regional Magistrate on the type of mortgage deed created between the plaintiff and the bank was wrong, unjust and unfair and was given as a result of the wrong interpretation of the mortgage D deed. This interpretation was contrary to law, he said. The cases Mr Taufiq cited he said, had helped the applicant ’ s case, including Sarkar on Civil Procedure with reference to the revisional powers of the High Court where it was inter alia held that the High Court, while e exercising its revisional jurisdiction can infer the order passed on appeal by the appellate authority only on 3 grounds, i.e. (i) where the original or appellate authority exercise a jurisdiction not vested in it by law or F (ii) where the original or appellate authority exercises a jurisdiction so vested or (iii) where in following the procedure or passing the order, the original G or appellate authority acted illegally or with material irregularity ” . In these 3 instances he said, revisional power is exercisable and this application had been filed to move this court to rectify the illegality and injustice done by the Lower court. H He cited the case of Kulwa Daudi v. Rebeca Stephen (4) where it was held inter alia that “ The revisional powers of the High Court may be invoked by any party to a civil case or on a motion of the High Court to correct an error resulting in injustice committed by 1 a District Court or court of a Resident Magistrate .. That he said

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 49 is the purpose of this motion. He contended that the court will only a be able to determine whether there was injustice or not when the main case was tried. He said the case of Mwanahawa Muya v. Mwanaidi Maro (2), cited by his learned colleague had no relevance to the present case. Similarly, he said the case of Zabron Pangamaleza b (3) cited by Mr Toufiq did not apply to the instant case. He concluded that whether injustice was occasioned or not in the Lower court, it is for the High Court to determine and therefore requested that the applicant be allowed to make his case. c He urged the court to dismiss the oral application for summary dismissal and order a full trial on its merits. In reply to the points raised by Mr Ussi, Mr Toufiq reiterated his submission that even if the Regional Magistrate erred in law in D determining the case, it cannot be rightly remedied by the High Court through its power of revision and that the use of the power of revision must be restricted to the circumstances provided by paragraph (a), (b) and (c) of section 90. E He stated that the holding most relevant is in the case of Mwanahawa Muya v. Mwanaidi Maro (2). “ It is wrong, indeed improper for the High Court to resort to its revisional p powers where (as in this case) there are specific issues calling for determination by the court ” . From the grounds filed by the applicant in support of his application, there are substantial issues to be determined and these cannot be determined by revision; he added. G I have gone through the submissions of both counsels and their cited authorities. I am of the opinion that the provisions of section 90 must be closely studied because in there lies the key to the true position of the law. Section 90 provides: H The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears;

50 TANZANIA LAW REPORTS [2001] T.L.R. A (a) to have exercised a jurisdiction not vested in it by law (b) to have failed to exercise a jurisdiction so vested (c) to have acted in the exercise of its jurisdiction illegally or with material B irregularity, the High Court may make such order in the case as it thinks fit. Mr Ussi in his application apart from relying on this provision also enjoined the court to exercise its inherent powers to “ ... make such orders as may be C necessary for the ends of justice or to prevent the abuse of the process of court ” along “ any others that the court may deem fit ” to cure the injustice engendered by the Lower courts decision. The pertinent question here is, under what circumstances can the High Court exercise its revisional powers? D I have gone through the case of Kulwa Daudi v. Rebecca Stephen (4) [1985] T.L.R. 117 Cited by the learned applicant, where it was held inter alia, that “ The revisional powers of the High Court may be invoked by any party to civil case or on a motion of the High Court to correct an error resulting in injustice committed by a District Court or court of a Resident Magistrate. ” F The application here was made under the provisions of section 44(1)(6) ofthe Magistrate ’ s Court Act Number 2,1984 which enabled it. Substituted service was in this case, to all intents and purpose ordered, in wrongful exercise of the courts discretionary power when the defendant was known to be absent and to compound it, ex-parte judgement was given against the defendant without calling on the plaintiff to prove her case. Revisional authority was appropriately exercised. H The case, Zabron Pangamaleza v. Joachim Kiwaraka and Amin (3) was also cited by counsel. The revisional power of the High Court had been sought to be invoked under section 79(1 )(c) of Civil Procedure Code in addition to the provisions of section 44(1) of the Magistrate Courts Act “ and any other enabling provision of law ” as in the instant case.

SOUTHERN ESSOv. PEOPLES BANK OF ZANZIBAR AND ANOTHER 51 It was held that section 79(1) which is a kin to section 90 of the A Civil Procedure Decree, applied only to issues of jurisdiction and thus could not be invoked but that section 44 of the Magistrate Court Act had served to broaden the scope of the powers of the High Court and ... “ goes beyond jurisdictional issues and covers all situations b where it appears that there has been an error material to the merits of the case involving injustice ” . Merits of the case, can in this instance be looked into by the High Court, where there appears that there has been an error material to the case involving injustice. In that c case, the appellant had challenged the impartiality of the presiding Magistrate and accordingly applied for the case to be tried by another Magistrate, and it was brushed aside. This admittedly, amounted to an error material to the merits of the case involving injustice to the appellant. The applicant herein is seeking for similar consideration and contended that the issue of injustice can only be determined by the High Court if the applicant is allowed to make his case. Similarly, reference was made to the case of Abdu Hassan v. E Mohammed Ahmed (1) at page 181. A case in which the plaintiff filed claiming over TZS. 280 000 for goods delivered on contract to the respondent in a District Court. The Resident Magistrate forwarded the record to the High Court, F questioning the trial magistrate pecuniary jurisdiction in the matter and recommending revision, if considered appropriate. This case, to me is very poignant in its exposition of the position of the law. The court held that the High Court has no power to interfere G in revision under this section (79)( 1) of the Civil Procedure Code, 1966, except in the three cases mentioned in paragraph (a), (b), and(c), which is a replica of section 90 (a), (b), and c of Civil Procedure Decree. Vindicating the above view, the court citea the Privy Council H case of Venka Tagiri v. Mindu Religious Endowment Board (5). That commented on section 115 of the Indian Civil Procedure Code

• the equivalent of section 90 of the Decree thus: I

52 TANZANIA LAW REPORTS [2001]T.L.R. A Section 155 applied only to cases in which no appeal lies and where the legislature has provided no right of appeal ... the section empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate court is within its jurisdiction B (b) that the case is one in which the court ought to exercise jurisdiction and (c) that in exercising jurisdiction, the court has not acted illegally, that C is, in breach of some provisions of law, or with material irregularity this is by committing some error of procedure in the course of the trial which is material, in that it may have affected the ultimate decision. If the High Court is satisfied on these three matters, it D has no power to interfere, because it differs however profoundly from the conclusions of the subordinate court on questions of fact or law. As far as section 90 is concerned, that is all. The High Courts revisional E powers herein are restricted; very circumscribed, and while discretionary, they are limited to the aforestated conditions enumerated therein. This position seems to me to be in consonance with learned Taufiq ’ s contention that the High Courts revisional powers are not blanket. F As he contended, they must be in strict compliance with the circumstances enumerated by the Decree. Gleaning further from the Privy Council, “ ... it has no power to interfere because it differs however profoundly from the conclusions of the subordinate court on questions of facts or law ” , it is clear that it is immaterial whether the courts decision is wrong or right as along as the adjudicating court has jurisdiction over the matter. H Considering the issue of error in judgement further, it has been held that “ merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion, would hardly justify interference in revision when no illegality or material irregularity was committed by the subordinate court “ ... Sarkar ” Law of Civil Procedure Volume I.

SOUTHERN ESSO v. PEOPLES BANK OE ZANZIBAR AND ANOTHER 53 Further illumination is brought on the issue thus “ the position A is firmly established that while exercising jurisdiction under section 115 (replicated verbation by section 90). It is not competent for the High Court to correct errors of fact however gross or even errors of law, unless the said errors have relation to the jurisdiction of the b court to try the dispute itself ’ . Mr Ussi talked of “ illegality ” or with material irregularity warranting the exercise of the High Courts revisional power but it has been held that these words “ ... do not cover either errors of fact or of law; they c do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated relate either to the breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not errors either of facts or of law, after D the prescribed formalities have been complied with. ” DLFHousing and C. v. Sarup A. (6). On this issue of error, I will like to conclude with the holding of the Supreme Court of India in the case of Abbabhai v. Gulamnabi E A. (7) that “ ... when a court has jurisdiction to decide a question, it has jurisdiction to decide it rightly or wrongly, both in fact and law. The mere fact that the decision is erroneous does not amount to illegal or irregular exercise of jurisdiction. ” F In the case of Mwanahawa Muya v. Mwanaidi Maro (2) at page 78 it was held that “ it is wrong, indeed, improper, for the High Court to resort to its revisional powers where (as it was in this case) there are specific issues calling for determination by the court ” . G I agree with Mr Toufiq, that going through Mr Ussi application, there are substantial issues for determination which can come only by way of appeal. The serious issue canvassed by Mr Ussi in his affidavit in support of his application cannot come by way of revision but by appeal. Section 90 appears succinct to me:

54 TANZANIA LAW REPORTS [2001] T.L.R. “ The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies ... ” It appears to me incontrovertible that the High Courts powers here are only exercisable where no appeal lies. In support of this is the decision in the case of Khanna v. Dillon, A. (8), where it was held that “ the High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to the court subordinate thereto. The powers given are clearly limited to the keeping of the subordinate courts within the bounds of their jurisdiction ” . It would also appear to me that this revisional jurisdiction has been conferred on the High Court for the effective exercise of its superintending and visitorial powers over subordinate courts, which is purely discretionary. It is part of the general appellate jurisdiction of the High Court, though this jurisdiction is strictly restricted by section 90 which invests it. The power is very limited and advisedly not to be exercised except in the rarest of rare cases, however seriously erroneous, the jurisdictional error. As decided in the case of Shar v. Jag (9) “ the revisional power should not be exercised unless as a last resort for an aggrieved party ” . It has been held also that “ if a person fails to avail the remedy of appeal against the order of the rent controller (subordinate court in this instance) instructed, he cannot invoke the revisional jurisdiction of the High Court. This application is consequently dismissed and the applicant is advised to file his action through the appropriate procedure.

VITAMIN FOODS (1989) LTD v. SCOTCH WHISKY ASSOCIATION 55 VITAMIN FOODS (1989) LTD v. SCOTCH WHISKY a ASSOCIATION HIGH COURT OF TANZANIA AT DARES SALAAM b (Chipeta, J.) MISCELLANEOUS CIVIL APPEAL No. 5 OF 1999 c (From the decision of the Registrar of Trade and Services Marks at Dar es Salaam) Trade Marks — Application for removal of trademark from the register - Locus standi - Aggrieved party - Section 36 of Trade and Service Mark Act p 1986. Trade Marks — Protection of trademarks - Paris Convention of 20 March 1883, articles 2, 7 bis, 9, 10,10 bis, 10 ter and 22.2 - United Kingdom and Tanzania are parties. E Trade Marks — Application signed by advocate - Application by body corporate

• Acceptance of application by the Registrar. Trade Marks - Ruling signed by one officer only — Section 4 of the Trade and F Service Mark Act 1986 . An application was made to the tribunal presided over by the Registrar, Senior Assistant Registrar and two Assistant Registrars, for the removal from the register a trademark registered in favour of the appellant for a product the appellant described as “ Premium G Whisky - A Blend of Finest Selected Imported Old Scotch and Malt Whiskies. ” The basis of the application was that the said mark was deceptive and likely to cause confusion between that product and the products of the members of the respondent who distill, blend and merchant Scotch Whisky. The appellant raised two Preliminary H Objections: (a) that the respondent had no locus standi because it had no registered trade mark of its own in Tanzania or in the United Kingdom, (b) that the application had not been properly signed. Both Preliminary Objections were dismissed. The appellant being aggrieved, appealed to the High Court on the grounds that the Registrar had erred in holding that the respondent had locus standi, and in holding that the

56 TANZANIA LAW REPORTS [2001]T.L.R. A application was not defective. A further ground was that the ruling of the tribunal was defective as it was only signed by the Registrar and had not been read in open court. Held: (i) The respondent is a lawfully registered company and as one of its arms and objects is to protect and promote the reputation vested in Scotch Whisky throughout B the world it was a party aggrieved; (ii) The respondent, therefore had locus standi to bring the application because the law allows any aggrieved party to apply to the Registrar for the removal of an entry from the Register; (iii) The respondent has locus standi as provided for by article 7 bis (3) of the Paris Convention of 1883;

• (iv) The Registrar correctly accepted the application signed by the advocate of D the respondent. (v) The tribunal is a quasi judicial body and therefore the provisions of the Civil Procedure Code do not or need not necessarily apply as such the tribunal ’ s communication of its decision to parties concerned by post was proper. E Appeal dismissed with costs Cases referred to: (1) William Powell v. Birmingham Vinegar Brewery Company Limited [ 1894] F AC 8 (2) Wineworths Group Limited v. Comite Interprofessionel du Vin de Champagne,

2. NZLR 327 G (3) Taittinger SA and others v. ALLBEL Limited and another [1993] ChD 641 Statutory provision referred to: H (1) Trade and Service Mark Act 1986, sections 4 and 36 I

VITAMIN FOODS (1989) LTD v. SCOTCH WHISKY ASSOCIATION 57 JUDGMENT A (Delivered 1 October 1999) Chipeta, J. : This is an appeal by the appellant, Vitamin Foods (1989) b Limited, against the Ruling of the Registrar of Trade and Service Marks rejecting Preliminary Objections raised by the appellant in the course of hearing an application by the respondent, The Scotch Whisky Association. The said application was made to the said Registrar c for the removal from the Register of Trade Mark Registration Number 22065 registered in the name of the appellant in Class 33, Royal Challenge. The product is described as “ Premium Whisky - A Blend of the Finest Selected Imported Old Scotch and Malt Whiskies ” . The basis of the application is that the said mark is deceptive and likely to cause confusion between that product and the products of the respondent ’ s members who distill, blend and merchant Scotch Whisky. E In the tribunal, which was presided over by the Registrar, a Senior Assistant Registrar, and two assistant Registrars, the appellant raised two Preliminary Objections, namely, (a) that the respondent had no locus standi in the matter, and (b) that the application had not been properly signed. The Registrar rejected both Preliminary Objections. The Memorandum of Apperal contains two main grounds. The first is that the registrar erred in holding that the respondent had locus standi and that the application was not defective. The second G ground is that, the Ruling is not a proper ruling of the tribunal in that it was not written and signed by the Principal Officer, that is, the Registrar, and that it was not read and delivered in the tribunal in open court. By the order of the court, the learned advocates of H the parties in this appeal filed written submissions. I am indebted to them for their lucid submissions. I do not intend to reproduce them here but will refer to them on appropriate occasions in the course of this judgement/ruling.

58 TANZANIA LAW REPORTS[2001]T.L.R. A It has been submitted by learned counsel for the appellant that the respondent has no locus standi because the respondent has no registered trademark in its own name either in Tanzania or in the United Kingdom, and so the respondent cannot be “ a party aggrieved ” B within the meaning of that expression in section 36 of the Trade and Service Marks Act 1986, (hereinafter referred to as the Act) nor could the respondent suffer any harm or loss. This question, it seems to me, centers on the interpretation of c section 36 of the Act. The section reads as follows: 36 any person aggrieved by the non-insertion in or omission from the Register of any entry, or by any entry wrongly remaining on the Register, or by any error or defect in any entry in the Register, may apply to the court or at the option of the applicant and subject to the provisions of section 55 of this Act to the Registrar, and the court or the Registrar shall make such order for making, expunging or varying the entry as shall be deemed fit. E It will be noted that the section talks of “ any person ” . It does not qualify the person. Who then is “ a person aggrieved ” who would thus be said to have locus standi in such applications. The leading authority on this point, it appears to me, is the case of William Powell v. Birmingham Vinegar Brewery Company, Limited (I). In that case, Lord Herschell, L.C. stated, at page 10: Wherever it can be shown, as here, that the applicant is in the same trade G as the person who has registered the trade-mark, and wherever the trade mark if remaining on the register would or might limit the legal rights of the applicant so that by reason of the existence of the entry upon the register he could not lawfully do that which but for the appearance of the mark upon the register could lawfully, do, it appears to me that he has a H locus standi to be heard as a person aggrieved. The House of Lords was, in fAct echoing the voices in the Court of Appeal in that case. There Lord Bowen, L.J., stated: I

VITAMIN HOODS (1989) LTD v. SCOTCH WHISKY ASSOCIATION 59 Persons who are aggrieved are persons who are in some way or other A substantially interested in having the mark removed from the register, or persons who would be substantially damaged if the mark is retained. He added: B To my mind, it is equally true that persons would be aggrieved if they are in the same trade and might reasonably be expected to deal in the same article. (See: In Re Powell ’ s Trade-Mark, (1893) 2 Ch 388, at page 406). c Eminent authors on the subject confirm the foregoing to be the meaning of the expression “ person aggrieved ” . They go on to express the view, which I share, that the expression should be interpreted liberally. (See Kerly ’ s Law of Trade Marks and Trade Names, page 179, D 12 ed). This approach was approved by Lord Herschell, LC in the Powell case in which he stated, at page 10: I should be very unwilling unduly to limit the construction to be placed upon these words (persons aggrieved), because, although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct and to exclude a mere common informer, it is undoubtedly of public interest that they should not be unduly limited in as much as it is a public mischief that there should remain upon the F register a mark which ought not to be there. Lord Ashbourne added his voice. He stated, at page 14: I do not see any reasons of public policy rendering it at all desirable to g unduly narrow the definition of this class of “ persons aggrieved. In the instant case, the respondent is a lawfully registered company, and one of its aims and objects is to protect and promote the reputation vested in Scotch Whisky throughout the world. The appellant is said H to be dealing in “ a blend of the finest selected imported Old Scotch and Malt Whiskies ” . It, therefore, goes without saying that the two parties are in the same trade, and are in fact dealing in the same article, Scotch Whisky. By the definition of the expression “ person i aggrieved ” , it is beyond peradventure that the respondent is “a person

60 TANZANIA LAW REPORTS [2001JT.L.R. A aggrieved ” within the meaning of that expression in section 36 of the Act. In the words of Lord Ashbourne in Powell ’ s case {supra), if the respondent in this case is not to be classified as “ a person aggrieved ” , it would be difficult to suggest any one who could be B more aptly be so designated. The respondent, therefore has locus standi in the application. The fact that the respondent has no trade mark registered in its name in Tanzania or the United Kingdom is irrelevant. c On the point that the respondent is a mere association which had not filed a representative suit, let me point out, as was pointed out by learned counsel for the respondent, that in many jurisdictions in the Commonwealth, courts have granted remedies to trade associations D for trade malpractices such as passing-off. Such was the case in Wineworths Group Limited v. Comite Interprofessionel du Vin de Champagne, (2) in the Court of Appeal of New Zealand, and in the case of Taittinger SA and Others v. Allbel Limited; and another, E (3). I can see no reason why this court should treat trade associations differently in this day and age. The practical reason for permitting trade associations to file suits is to avoid multiple parties, minimize costs, and save the time for courts. F The respondent, I think, has another basis for its locus standi, as suggested by learned counsel for the respondent. I have in mind the Paris Convention of 20 March 1883 for the protection of industrial property to which both the United Kingdom and Tanzania are parties. G The relevant articles are articles, 2, 7 bis, 9, 10 bis, 10 ter and 22.2. article 7 bis (3) of the Convention states that the protection of trade marks referred to in the Convention : ...shall not be refused to any association the existence of which is not H contrary to the law of origin, on the ground that such association is not established in the country where protection is sought or is not constituted according to the law of the latter country. It was next submitted that Ms Kasonda, learned advocate with the 1 respondent ’ s firm of advocates, that is, Mkono and Company Advocates,

VITAMIN FOODS (1989) LTD v. SCOTCH WHISKY ASSOCIATION 61 had no authority to sign the application because, it was said, that A was a breach of rule 10 of the Trade Marks Rules 1958. In my view, since the respondent is a body corporate, the second part of the rule is relevant. It provides as follows: B A document purporting to be signed for or on behalf of a body corporate shall be signed by a Director or by the secretary or other principal officer of the body corporate, or by any other person who satisfies the Registrar that he is authorized to sign the document. C In this case, it is abundantly clear from the conduct of the Registrar in accepting the respondent ’ s application and dealing with it in the ordinary manner that the Registrar was satisfied that Ms Kasonda was authorized to sign the application being “ any other person ” . The next ground of appeal was that the “ Power of Attorney ” granted to Mkono and Company, Advocates, was bad in law in that a power of attorney can be given to an individual, or to a limited liability company, but not to a firm. Learned counsel for the appellant quoted E no authority for that proposition. I am not, for my part, aware of any law which prohibits a client from instructing or authorizing a firm of advocates to act on his or its behalf. I can see no better person than a firm of advocates to be given authority or instruction to act in connection with any lawful matter. It might have been a different F matter if the complaint had been that Mkono and Company, Advocates had no authority from the respondent to act on its behalf in the matter; or if the complaint had been that by so acting on the authority of the power of attorney, the appellant was materially prejudiced. This ground G of appeal, therefore, is equally without merit. The last ground of appeal was that the Ruling was not a proper ruling of the Registrar because (a) although the application was heard by the Registrar, it was not written, signed, and dated by the Registrar, and (b) it was not delivered in open court. Instead, it is argued, it was written and signed by a person who had no authority to do so. This, it is said, was a breach of Order 20, rule 3 of the Civil Procedure Code. 1

62 TANZANIA LAW REPORTS [2001]T.L.R. A To start with, the record of the tribunal reveals that its coram consisted of the Registrar, a Senior Assistant Registrar, and two Assistant Registrars. The Ruling was signed by the Senior Assistant Registrar and the two Assistant Registrars. As correctly submitted by learned B counsel for the respondent, under section 4 of the Act the Registrar and the Assistant Registrars have concurrent jurisdiction or authority in matters concerning rectification of, or removal of a trademark from, the Register. That being the position, the Ruling was properly c signed by people with authority to do so. The complaint that the Ruling was not delivered in open court as required by the Civil Procedure Code is also without merit. This was a quasi-judicial tribunal to which the provisions of the Civil D Procedure Code do not or need not necessarily apply. Besides, it appears to be the practice in such tribunals for the Registrar or an official of the tribunal to communicate decisions of the tribunal to the parties concerned by post, as was done in this case. There is E nothing in the Trade Marks Rules 1958, compelling the Registrar to deliver his decisions in open court. Communicating decisions of such tribunals by post is the procedure followed even in the United Kingdom and the European Union. In The Trade Mark Handbook, F which is a practitioners guide to trade marks in the United Kingdom and the European Union (1997) it is stated, in paragraph 9.6.6: In cases where a hearing takes place, the Registrar (who is normally represented by a senior official) will normally reserve his decision. Copies G of the decision are sent to all the parties to the proceedings. That was what the Registrar did in this case. I cannot, therefore, see any irregularity in the manner in which the decision of the tribunal in this case was communicated to all the parties concerned. For the H foregoing reasons, I am of the settled view that this appeal is devoid of any merit. The same is accordingly hereby disms.sed with costs. I

ATHANAS ALBERT AND FOUR OTHERS v. TUMAINI UNIVERITY COLLEGE, RINGA 63 ATHAN AS ALBERT AND FOUR OTHERS v. TUMAINI a UNIVERITY COLLEGE, RINGA COURT OF APPEAL OF TANZANIA AT DARES SALAAM b (Kisanga, J.A.) CIVIL APPLICATION No. 50 OF 1999 c (Application for stay of execution of the decision of the High Court of Tanzania, at Songea, Mwipopo, J., dated 26 June 1999, in Misc. Civil Application No. of 1999) Civil Practice and Procedure - Stay of Execution - Application for stay of execution — Stay of execution sought where there is no court order granting to the respondent any right to execute or to do anything affecting the rights or interests of the applicant - Whether the application is competent. The applicants filed a suit against the respondent in the District Court and then applied e successfully for temporary order of injunction pending the determination of the suit. The High Court exercised its revisional jurisdiction and set aside the order. The applicants filed a notice of intention to appeal to the Court of Appeal and then made an application for stay of execution of the revisional order. F Held: (i) There was nothing to stay in the revisional order of the High Court; (ii) A stay of execution can properly be asked for where there is a court order granting a right to the respondent, or commanding or directing him to do something G that affects the applicant. Application dismissed Mr Mkwata, for the Applicants Mr Mwakingwe, for the Respondent I

64 TANZANIA LAW REPORTS [2001JT.L.R. a RULING (Dated 8 October 1999) B Kisanga, J.A.: This is an application for a stay of execution of the order of the High Court pending the hearing and determination of an intended appeal to this court. The background to the case is set out in a joint affidavit of the five applicants and it may briefly be c stated as follows: The applicants who are currently third year students at the respondent University College had their studies terminated on grounds of non-payment of fees. They filed a suit in the District Court against the respondent challenging such termination of their studies. They at the same time applied for temporary injunction to restrain the respondent from expelling them pending the hearing and determination of their suit. The District Court granted the temporary injunction but the High Court exercising revision powers set aside the order for temporary injunction. The applicants gave notice of E intention to appeal to this court against that order of the High Court. In the present application to this court the applicants are now seeking for a stay of execution of the order of the High Court pending the hearing and determination of the said intended appeal to this court. F At the hearing of this application the applicants were represented by Mr BP Mkwata while the respondent was advocated for by Mr MT Mwakingwe. As intimated before, the Notice of Motion was duly supported G by a joint affidavit of all the applicants. The respondent filed a counter affidavit and a supplementary counter-affidavit. The applicants filed affidavit in reply to the supplementary counter-affidavit. Upon the application of counsel, I allowed counsel for both sides to make H their submissions in writing. The application was resisted mainly on two alternative grounds, namely, that the application was incompetent or, in the alternative, that there was no order of the High Court to be stayed. On the first ground it was contended that in law, there I was no intended appeal because a copy of the notice initiating the

ATHANASALBERT AND FOUR OTHERS v. TUMAINI UNIVERITY COLLEGE, RINGA 65 said appeal was not served on the respondent or its counsel. The a applicants adduced evidence showing that a copy of the said notice was received by one Scolla Rwezaula, the Secretary to the Vice Provost of the respondent University College. That evidence was not challenged or contradicted. The respondent ’ s only argument was that the notice b was not received by a responsible officer of the respondent ’ s administration. It seems plain to me that that argument is untenable. The said Scolla Rwezaula was the Secretary to the Vice Provost of the respondent University College, undoubtedly a very senior and c responsible officer of the respondent ’ s administration. In the absence of any contrary indication, one is entitled to assume that in that capacity, it was part of Scolla ’ s duties to receive communications addressed or directed to the respondent through the Vice Provost. D The said notice titled “ Notice of Appeal in Miscellaneous Civil Application Number 90 of 1999 ” was clearly addressed to “ Tumaini University, Iringa University College ” . In my view the applicants were perfectly entitled to leave the notice with the said Scolla and to take it that it E was duly served on the respondent University College through its Vice Provost. This ground of objection, therefore, fails. Coming now to the second and alternative ground, the respondent contends that there is no order of the High Court to be stayed. The f respondent ’ s evidence as adduced by counter-affidavit shows that following the High Court order setting aside the temporary injunction granted by the District Court, the respondent proceeded on 26 June 1996 to take a number of steps against the applicants. These steps g include: (i) Termination of the applicants ’ studies (ii) Instructions to lecturers to stop supervising the applicants ’ research work and to stop releasing any examination results to them. (iii) Withdrawal from the applicants of the amenities such as accommodation and other facilities at the campus which are intended for bona fide students. ,

66 TANZANIA LAW REPORTS P00TJT.L.R. A The respondent ’ s contention, therefore is that when this application was filed on 2 July 1999 it was already too late in the day because the respondent had already acted on the order of the High Court which was intended to be stayed. On the other hand the applicants B vigorously contend and reiterate that if their application is not granted, they stand to suffer irreparable loss, and that the intended appeal to this court stands good chances of success. In my opinion, the real question raised in this application is whether c the High Court order in question was one in which it was capable of ordering a stay of execution. As stated before, the High Court order consisted of setting aside the order of the District Court which had granted temporary injunction to the applicants. The applicants, in D effect, are now asking this court to stop that order from taking effect. In other words the applicants are asking this court to set aside the order of the High Court and thereby restore that of the District Court. But it seems that that can only be done in the course of hearing and E determining the intended appeal to this court. To do otherwise would amount to granting the applicants what they are asking for in the intended appeal, which to my mind would be wrong in principle. I am increasingly of the view that, there is nothing in the High F Court order the execution of which is capable of being stayed. All that the High Court did was to set aside the order of the District Court which had restrained the respondent from terminating the applicants ’ studies. It seems to me that a stay of execution can properly be G asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that affects the applicant. In such a situation, the applicant can meaningfully ask the court for a stay and to restrain the respondent from executing that H order pending the results of an intended appeal. But in the present case after the High Court had set aside the order of the District Court, there is no order of any court now granting any rights to the respondent or commanding or instructing the respondent to do anything j affecting the applicants or, indeed, anyone. There is a clean slate,

AUGUSTINE LYATONGA MREMAAND TWO OTHERS v. ABDALLAH AJENGO AND TWO OTHERS 67 as it were. Then the question is: Which order of the High Court are A the applicants asking this court to order a stay of execution of? In my view there was no basis for the applicants seeking a stay of execution of the order of the High Court. For, the said order of the High Court did not grant to the respondent any right the enjoyment B or enforcement of which could be stayed through a court order pending the results of the intended appeal by the applicants. In the result I am satisfied that this application was misconceived and it is accordingly dismissed with. c AUGUSTINE LYATONGA MREMAAND TWO ” OTHERS v. ABDALLAH AJENGO AND TWO OTHERS COURT OF APPEAL OF TANZANIA AT DARES SALAAM E (Kisanga, Mfalila and Lubuva, JJ. A.) CIVILAPPEALNo. 41 OF 1999 f (From the decision of the High Court of Tanzania, Bubeshi, J. dated 14 May 1999) Civil Practice and Procedure - Interim injunction - When it can be granted without serving notice on the respondent - Order 37, rule 4 of the Civil G Procedure Code 1966. Civil Practice and Procedure — Interim injunction — Reasons to be disclosed for requesting the court to dispense with service of notice — Order 37 rule 4 of the Civil Procedure Code 1966. H The respondents filed a suit against the appellants after the first and the third appellants had resigned from NCCR - Mageuzi Party and took over all national leadership positions in the Tanzania Labour Party (TLP) . They sought declarations, one of which was that the purported wholesale removal of the elected office bearers of the TLP

68 TANZANIA LAW REPORTS [2001 ]T.L.R. A and the installation of the first, second and third appellants and others in various positions that party was null and void. The respondents also filed a chamber application in which they sought first, an interim ex parte injunction restraining the appellants, their followers, agents and servants from acting as office bearers of the TLP and B conducting political activity in the party or issuing the new TLP membership cards, pending the hearing of the application inter partes; the second prayer was for a temporary injunction to be heard inter parties pending the final determination of the suit and thirdly costs of the application. Bubeshi, J. heard the application and granted C the ex parte order of interim injunction and an order was drawn in accordance with the prayer. Being aggrieved the appellants appealed against the order on two grounds: one, that the interim order was improperly heard and granted ex parte without first serving a notice on the appellants and, two, that the interim injunction was granted without adducing evidence to dispense with the requirement of service of notice to the appellants. Held: (i) The requirement of giving notice to the respondent before granting an interim injunction is mandatory. E (ii) The onus of satisfying the court that there is a good cause for dispensing with the requirement to give notice lies with the applicant and the affidavit filed in support of the chamber summons disclosed no grounds for dispensing with such notice. (iii) Obiter: The interim injunction granted ex parte was too wide and resulted in denying the appellants and their followers and personal servants their Constitutional rights to engage in political life. Appeal allowed with costs in both courts; Interim injunction set aside G Case referred to: (1) Noor Mohamed Jan Mohamed v. Kassamali Virji Madhani (1953) 20 E.A.C.A 8 H Statutory provision referred to: (1) Civil Procedure Codel966, Order 37, rule 4 Mr Magesa, for the Appellants j Mr Tadayo, for the Respondents

AUGUSTINE LYATONGA MREMA AND TWO OTHERS v. ABDALLAH A.IENGO AND TWO OTHERS 69 JUDGMENT a (Dated 11 October 1999) Mfalila, J.A.: On 6 May 1999, the respondents filed a suit against b the appellants in which they claimed for a number of declarations including the following: The purported wholesale removal from office of the elected office bearers of the Tanzania Labour Party and the installation of the first, second and C third defendants (the present appellants) as National Chairman, National Vice-Chairman (Mainland) and Secretary General respectively, and all appointments made at all levels of the party are null and void for being contrary to the Constitution of the United Republic of Tanzania, the Constitution d of the Tanzania Labour Party and the Political Parties Act. This suit followed the alleged gate-crashing by the first and third appellants into the Tanzania Labour Party after their resignations from the NCCR-Mageuzi Party. The respondents alleged in their E plaint that the first and third appellants not only gate-crashed into their party but also unsurped all national leadership positions in the Party. Also that the second appellant vacated his position as National Chairman of the party without following the procedures laid down f in the party Constitution. In the plaint, the respondents described themselves as members of a registered political party, the Tanzania Labour Party and holding party portfolios as follows: First respondent, Abdallah Majengo - Vice-Chairman (Mainland) G Second respondent, Alphoncina Massawe - National Women ’ s Chairman Third respondent, Winston Gellege- Dodoma Regional Party Secretary The appellants are described as follows: H First appellant, Augustine Lyatonga, Mrema - installed as National Chairman Second appellant, Leo Lwekamwa - installed as National Vice-Chairman । (Mainland)

70 TANZANIA LAW REPORTS [2001]T.L.R. A Third appellant, Harold Jaffa - installed as Secretary General It appears that before the appellants had filed their written Statements of Defence, the respondents filed chamber summons supported by the affidavit of the first respondent in which they prayed first for an B interim ex-parte injunction restraining the appellants, their followers, agents and servants from acting as office bearers of the Tanzania Labour Party, conducting political activity in the name of the paty or issuing the new TLP membership cards pending the hearing and c determination of the Application inter-parties. Secondly, for a temporary injunction, upon hearing the Application inter-parties, restraining the appellants, their followers, agents and servants from acting as office-bearers of the paty, conducting party political activities in D the name of the paty or issuing the new TLP membership cards pending the final determination of the suit; and, thirdly, for costs of the application. On 14 May 1999, ex parte proceedings to hear this application commenced in the High Court before Bubeshi, J. Mr Tadayo learned E counsel who appeared for the respondents, told the trial judge that he was applying for an interim injunction against the appellants, their followers, agents and servants restraining them from acting as office bearers of Tanzania Labour paty and conducting political activities F in the name of the said paty or issuing new paty membership cards. Elaborating on this prayer, Mr Tadayo further told the trial court that the appellants had descended on the paty and purported to assume paty official positions of National Chairman and Secretary General. G Replacements of TLP functionaries with former NCCR-Mageuzi cadres were also effected at regional and district levels. All these actions, Mr Tadayo submitted, were contrary to the paty Constitution as well as the provisions of the Political Parties Act. On the basis of these H unConstitutional activities by the respondents, he said, the paty was put in danger of being struck out from the register of political parties. Hence, he concluded, it was necessary for the court to issue the order prayed for in order to maintain the status quo pending the j hearing inter-parties of the main application for temporary injunction.

AUGUSTINE LYATONGA MREMAAND TWO OTHERS v. ABDALLAH AJENGO AND TWO OTHERS Following these submissions, the learned judge made the following A order: After hearing counsel for the applicants ex-parte, and after studying the accompanying affidavit deponed to by the first plaintiff (sic) in support n thereto, this court grants ex-parte an interim injunction as prayed. The main application inter parties is hereby fixed for hearing on 27 May 1999. respondents to be served to appear. The order which was drawn up following this ruling was indeed as prayed in the chamber summons, and this is the order whose correctness is being challenged in this appeal. As indicated, the ex-parte order which was granted as prayed, restrained the appellants, their followers, agents and servants from acting as office bearers of Tanzania Labour Party, conducting political activities in the name of the paty and issuing D the new TLP membership cards, pending the hearing and determination of the application inter parties. The appellants challenged the correctness of this order in a two- _ point Memorandum of Apperal as follows:

1. The High Court erred in law and in fact to grant interim order of injunction to the respondents ex-parte without first having served a notice to the appellants.
2. The High Court erred in law and in fact by granting an interim order of injunction ex-parte, without evidence to dispose with the requirement of service of notice to the appellants. The two grounds are inter related and will be dealt with together. At the hearing of this appeal, Mr Magesa, learned counsel who appeared for the appellants, submitted with some force that the amended Order 37, rule 4 of the Civil Procedure Code 1966 made it mandatory to serve the notice on the opposite party before hearing and issuing the order of injunction. Order 37, rule 4 provides as follows: The court shall in all cases, before granting an injunction, direct Notice of Application for the same to be given to the opposite party, except where

72 TANZANIA LAW REPORTS [200 1] T.L.R. A it appears that the giving of such notice would cause undue delay and that the object of granting the injunction, would thereby be defeated. On the basis of this provision, Mr Magesa contended that the requirement of giving notice is mandatory and that the burden is on the party B alleging otherwise to prove the circumstances exempting the notice, and cited the decision of the Court of Appeal for Eastern Africa in Noor Mohamed Jan Mohamed v. Kassamali Virji Madhani (1) as authority for this proposition. He added that in this case not only c did the affidavit by the first respondent fail to disclose any reasons for dispensing with the mandatory requirement of serving notice on the opposite side, but there was actually no reason because the appellants, all resident in Dar es Salaam, could have been easily served before D the hearing. Mr Magesa concluded his submissions by stating that because no reasons had been advanced for dispensing with notice, the ex-parte order of injunction granted by the learned judge was in contravention of Order 37, rule 4. E In reply, Mr Tadayo for the respondents conceded that no reasons were given for the non-service of notice on the appellants, but he said that in his view the rule applies only to applications for temporary not as in this case interim injunctions. p With respect, we think Mr Tadayo ’ s argument is ingenious but it has no merit. The rule as cited above makes no distinction between interim and temporary injunctions. On the contrary it covers all cases, it states - “ the court shall in all cases ... ” With even greater respect G we are satisfied that Mr Magesa ’ s submissions are correct. The effect of rule 4 of Order 37 is to make it compulsory for the giving of notice to the opposite party in all cases except in situations covered by the exception to the rule. In the Noor Mohamed case (1) referred H to by Mr Magesa, it concerned Order 39, rule 3 of the Kenyan Civil Procedure Code in pari materia with our Order 37, rule 4, the Eastern Africa Court of Appeal stated, after quoting rule which is identical to our rule 4: I

AUGUSTINE LYATONGA MREMAAND TWO OTHERS v. ABDALLAH AJENGO AN DTW'O OTHERS 73 The requirement to give notice is clearly mandatory and it cannot be disputed A that the onus of satisfying the court that there is good cause for dispensing with it will lie with the applicant. In the instant case, the respondents ’ summons did not contain any reference B to rule 3 nor any application for the order dispensing with notice and the only paragraph of his affidavit which could be prayed in aid of the immediate issue of an injunction is paragraph 10 which contains the bold assertion that the furniture, goods and effects are in danger of being wasted or wrongfully sold in execution. c That case is on all fours with the case before us. It was up to the respondents to satisfy the court that there was a good cause for dispensing with the mandatory requirement to serve the notice of the application to the appellants. Not only did the respondents ’ chamber summons D fail to refer to rule 4, but the first respondent ’ s affidavit contained no grounds for dispensing with such notice. Without the respondents satisfying the court as to the necessity of dispensing with the notice under the exception to rule 4, the court had no power to grant ex- E parte the injunction against the appellants. The result of this unfortunate error was that the appellants have been denied their Constitutional and civil right to engage in the political life of their country, this is because, in this country political activity is not possible outside f registered political parties. We also wish to observe that the High Court, even if it were minded to grant the order for injunction, should not have granted the order as prayed because it was unduly wide, bringing under its umbrella even innocent parties apart from its vagueness, g For instance, who are the appellants ’ followers? What have the appellants ’ servants in the form of cooks, housegirls or gardeners to do with their bosses ’ political life? As no political activity is allowed in this country outside registered political parties, the judge ’ s order H amounted virtually to a suspension of the appellants ’ Constitutional and civil rights. The judge should have limited her order to the main complaint against the appellants, namely usurpation of leadership positions in Tanzania Labour paty.

74 TANZANIA LAW REPORTS [2001] TLR. A Before we end, we wish to quote the very useful guidelines on the practice to be followed in applying for injunctions under rule 37, the guidelines made by the Court of Appeal for Eastern Africa in the Noor Mohamed case (1). These guidelines when followed B will help the High Court avoid making similar mistakes in future. The court stated at page 12: In conclusion I will venture to add a few observations on the practice in applying for the injunction under Order 39. 1 have been most surprised to c find in this case that service on the opposite party was dispensed with, without there being a formal application for this in the applicant ’ s summons, and that peremptory injunction was served without the party affected thereby being at the same time served with the copy of the plaint. I should D like to suggest therefore that, as a rule of practice: (a) An application under Order 39 should contain a prayer for, either, directions as to service of the notice on the defendant, or, for an order dispensing with such notice. In the latter case reference should E be made to the affidavit or affidavits relied upon in support. (b) Every order made under Order 39, rule 3, should direct that service of the notice or injunction, as the case may be, should be accompanied by service of the plaint if this has not previously been served. Having said all this, we allow the appeal and set aside the interim injunction ordered against the appellants. We also make an order for costs in favour of the appellants both in this court and in the G court below. H I

EL-NASR EXPORT AND IMPORT COMPANY v. NAI ID! TRADING COMPANY 75 EL-NASR EXPORT AND IMPORT COMPANY v. a NAHDI TRADING COMPANY COURT OF APPEAL OF TANZANIA AT DARES SALAAM b (Makame, Samatta and Lugakingira, JJ. A.) CIVIL REFERENCE No. 12 OF 1998 c Civil Practice and Procedure - Stay of Execution — Application to the Court of Appeal for stay of execution of a High Court decision where no Notice to Appeal against it is lodged - Whether the application is competent - rule 9(2)(b) of the Tanzania Court of Appeal Rules 1979. ® An ex-parte judgment was entered by the High Court against the applicant on 10 July 1997. No Notice of Appeal was lodged in respect of that decision. Instead, the applicant applied to the High Court for orders, inter alia, to set aside the ex-parte judgment and to stay its execution. This application was dismissed on 16 February 1998 whereupon the applicant lodged a Notice of Appeal against this dismissal. The applicant then filed before the Court of Appeal an application for stay of execution of the ex-parte judgment of 10 July 1997, in respect of which there was no Notice of Appeal. The application was heard and dismissed by a single judge, hence this reference to the full court. Held:(i) Since no Notice of Appeal is lodged in respect of the judgment whose execution the applicant wishes to be stayed, this court has no jurisdiction to order stay G of execution of that judgment under rule 9(2)(6) of the Court ’ s Rules. Application dismissed Case referred to: H (1) Faizen Enterprises Ltd v. Africarriers Ltd [1999] T.L.R 77 Statory provision referred to: (1) Court of Appeal Rules, rules 9(2)(b), 57(1 )(b), 76(6), rule 76(2) and (3), I

76 TANZANIA LAW REPORTS [2001] T.L.R. A Dr Lamwai, for the Applicant Dr Mwaikusa and Mr. Mponda, for the Respondent RULING B (Dated 29 October 1999) Smatta, J.A.: This is a reference brought under rule 57(l)(b) of c the Tanzania Court of Appeal Rules 1979 (hereinafter referred to as “ the rules ” ) from a ruling of a single judge of this court (Lubuva, J.A.). In that ruling, the learned single Judge dismissed the applicant ’ s application for stay of execution of a decree passed by the High D Court (Kaji, J.) following an ex parte judgment entered in favour of the respondent. The following is the background to the application. In July 1994, the respondent filed a suit in the High Court against the applicant, E claiming from it a collosal sum of money. Following non-appearance of the applicant ’ s counsel at the hearing of the case, on 10 July 1997, Kaji, J., entered an ex parte judgment in the respondent ’ s favour. It is not in dispute that no Notice of Appeal was lodged in respect of F that decision. On 15 August 1997, following an application by the respondent for execution of the decree ... that High Court issued an order for attachment of the applicant ’ s property and a garnishee order against its (the applicant ’ s) bank account. Having become aware G of those legal steps, the applicant rushed to the High Court and there filed an application for (1) setting aside the ex parte judgment; (2) an order raising the attachment order; and (3) stay of execution. The application was heard by Chipeta, J. The learned Judge dismissed it. The applicant was aggrieved by that decision. Six days later, it lodged a Notice of Appeal in respect of it. The body of that notice read as follows: Take Notice that El Nasr Export and Import Company Ltd., the appellant j above-named, being dissatisfied with the decision of the Honourable Mr Justice BD Chipeta, given at Dar es Salaam on the 16 February 1998,

EL-NASR EXPORT AND IMPORT COMPANY v. NAHD1 TRADING COMPANY intends to appeal to the Court of Appeal of Tanzania against the whole of A the said ruling. The applicant then filed the application before this court, which eventually the learned single judge dismissed. The learned single Judge held that as the applicant had filed no Notice of Appeal in respect of B Kaji, J. ’ s judgment, the subject of the application for stay of execution, the application for stay of execution was incompetent in law. In the course of his ruling, he cited the provisions of rules 9(2)(&) and 76(6) of the rules and went on to say: C From the provisions of these rules, I am increasingly of the view that the Notice of Appeal necessarily has to specify the particular decision or such part of the decision against which it is desired to appeal. In this case, it is common ground that the Notice of Appeal lodged ... of 18 D February 1998 by Honourable Chipeta, J. However, the application indicates that it involves the ex-parte judgment in the High Court by Honourable Kaji, J. This was a well conceded by Dr Lamwai in his oral submission before me. His argument however, was that even though it was not specified E which decision it was intended to be stayed, both the decisions concerned the same decision of the High Court, i.e„ Civil Case Number 159 of 1994. With respect, it is my view that Dr Lamwai is wrong on this point. As the Notice of Appeal filed pertains to the decision of 18 December 1998 (Chipeta, F J.) and not that of 10 July 1998 (Kaji, J.) which it is intended to be stayed, it goes without say that the application for stay of execution before me, was without the requisite Notice of Appeal. For that reason, it was, as submitted by Dr Mwaikusa, incompetent. q Before us, it was contended by Dr Lamwai, on behalf of the applicant, that the learned single Judge strayed into an error in law in dismissing the application for stay of execution on the ground that no Notice of Appeal had been lodged in respect of Kaji, J. ’ s decision. According H to the learned advocate, if the learned single Judge had taken into account the following three points he would have arrived at a decision in favour of the applicant: (1) no Notice of Appeal could have been lodged in respect of Kaji, J. ’ s judgment before the applicant was i

78 TANZANIA LAW REPORTS [2001] 'LL.R. A granted extension of time to lodge the same; (2) the applicant could not take the first step of appealing against Kaji, J. ’ s decision before moving the High Court to set aside that that decision; and (3) the ex parte judgment suffered from illegality because it was based on an B affidavit and not oral evidence. Counsel sought to bolster that submission by reference to the decision of this court in Faizen Enterprises Limited v. Africaners Limited (1), a case which concerned, among other things, the question whether an ex parte judgment may be entered c entirely on the basis of affidavit evidence. He strenuously contended that the ex parte judgment in the present case was in law, not judgment. The learned advocate concluded his submission by arguing that since the application before Chipeta, J., was for setting aside the “ ex parte D decree ” , by necessary implication Kaji, J. ’ s judgment was on agenda. He urged us to reverse the learned single Judge ’ s decision. On behalf of the respondent, Dr Mwaikusa made a simple and straightforward response. He contended that since no Notice of Appeal has been lodged in respect of Kaji, J. ’ s decision, the stay of execution of which was being sought before the learned single Judge, that decision has not in law been brought before this court and therefore no stay of execution of it can be ordered. F We have carefully considered counsel ’ s rival arguments and in the upshot we agree with Dr Mwaikusa that there is no basis for taking a view different from that arrived at by the learned single Judge. We are of the settled opinion that the learned single Judge was perfectly right in holding, as he did, that the absence of a Notice of Appeal in respect of the decision the execution of which the applicant sought to be stayed was fatal to the application for stay of execution. As aptly put by Dr Mwaikusa, a Notice of Appeal is the gear, so to speak, which moves this court to exercise its power under rule 9(2)(6) H of the rules. In spite of Dr Lamwai ’ s ingenious argument, we entertain no doubt that lodging of a Notice of Appeal by an indirect method is a notion unknown to the law of this country. The provisions of rule 76(2) and (3) of the rules as read with Form D in the First Schedule 1 of those rules plainly rule out that notion.

LAUREAN RUGAIMUKAMU v. THE EDITOR, MFANYAKAZI NEWSPAPER AND ANOTHER 79 Those provisions require an appellant to expressly specify in A his Notice of Appeal the decision of the High Court which he intends to appeal against. Form D requires that the name of the judge who gave that decision be disclosed. Since, in the present case, no Notice of Appeal was lodged in respect of Kaji, J. ’ s judgment this court b clearly lacked jurisdiction to order stay of execution of the decree arising therefrom. For the reasons we have given albeit briefly, we can find no warrant for holding that the learned single Judge was not entitled to reach c the conclusion he did. Accordingly, we dismiss the application. The respondent company will have its costs --------------------------------------------------- I) LAUREAN RUGAIMUKAMU v. THE EDITOR, MFANYAKAZI NEWSPAPER AND ANOTHER E COURT OF APPEAL OF TANZANIA AT DARES SALAAM (Makame, Samatta and Lugakingira, JJ. A.) F CIVIL REFERENCE No. 12 OF 1996 Civil Practice and Procedure — Extension of time — Application for extension of time to apply for correction or variation of Judgment — Application filed more than a year after applicant is made aware of the need for it - The delay is inordinate. Civil Practice and Procedure - Judgment - Correction of errors in a judgment jj

• High Court omits to award interest on a decretal amount — Whether that is an error which the Court of Appeal may correct under section 2(3) of the Appellate Jurisdiction Act. I

80 TANZANIA LAW REPORTS [2001]T.L.R. A The applicant was successful in his appeal before the Court of Appeal but the court did not award him costs because they were not asked for in the Memorandum of Appeal. There then followed a series of applications and references before the court without success. This one came as a reference from another unsuccessful application, B this time, seeking extension of time to apply for correction of judgment, with a view to inclusion of an award of costs, and for adding an award of interest on the decretal amount awarded by the High Court. Held: (i) Though the applicant was made aware that costs had not been awarded to c him back in 1994, he did not try to take appropriate steps to vary the court decision so as to include costs until 1996, after a series of misguided and useless applications to court; the present reference is an abuse of the court process. (ii) The prayer for additional interest on the sum decreed by the High Court cannot be considered with this reference. Reference dismissed Statutory provision referred to: E Appellate Jurisdiction Act 1979, sections 2(3) and (5) RULING F (Dated 29 October 1999) Lukangira, J.A.: This is the seventh time since 1994 that the applicant has come before this court on the issue of costs. The background to G the saga is short and it is this. The applicant sued the respondents for defamation before the High Court at Dar es Salaam in Civil Case Number 330 of 1991. The respondents did not file a defence and the hearing proceeded H ex parte by affidavit. However, the suit was dismissed upon the court finding that the claim had not been established. The applicant then applied to the same court to review its decision but the court refused to do so. He appealed to this court against the refusal in Civil Appeal I Number 39 of 1992. The court allowed the appeal, remitted the suit

LAUREAN RUGAIMUKAMU v.THE EDITOR, MFANYAKAZI NEWSPAPER AND ANOTHER 81 to the High Court for trial according to law, but made no order for a costs since they were not asked for in the Memorandum of Appeal. That was the genesis of the saga. On or about May 1994, the applicant ’ s advocate, Mr Magesa, presented a bill of costs incurred in the appeal for taxation, but it B was disallowed by the Taxing Officer who pointed out that the court had not awarded any costs. The applicant, now appearing personally, contested that ruling in Civil Reference Number 4 of 1994 before a single judge of the court arguing that “ where the court is silent on c the question of costs in its judgment, it implies that costs are awarded to the successful party ” . The learned judge rejected the argument, stating that a successful party must be declared by the court as the recipient of costs, but he does not automatically attract costs by D merely being declared a successful party. The applicant was adamant and made a further reference to a panel of three judges before whom he submitted that in civil matters a successful party has to be awarded costs. He conceded, however, that costs have to be asked for specifically £

• which was not the case in his Memorandum of Appeal - and further conceded that a court was not obliged to grant costs when they were not asked for, but maintained that silence in the judgment implied that costs had been granted. The judges were not impressed and dismissed F what was Civil Reference Number 8 of 1994. Undaunted, the applicant returned with Civil Application Number 24 of 1995 praying for review of the decision but that, too, was refused. Upon realizing that he could not obtain costs as of right, he changed g tactics. In February, 1996 he applied to a single judge, this time to vary the judgment of the court so as to include an order for costs. The judge (Nyalali, C.J.) struck out the application for being “ hopelessly time-barred ” and “ an abuse of court process ” . That did not deter the H applicant; on the contrary, it seems to have spurred him into renewed battle. He now lodges Civil Application Number 17 of 1996 for extension of time to apply “ for correction of judgment ” . On this occasion he also has another prayer. Following this court ’ s directions in Civil Appeal Number 39 of 1992, the High Court retried the suit, found

82 TANZANIA LAW REPORTS |2001]T.L.R. A in the applicant ’ s favour and awarded him damages. However, it did not award him interest on the decretal amount from the date of filing the suit to date of judgment stating that “ it was not pleaded for ” . The applicant says this is an error and invites this court to correct B that error pursuant to section 2(3) and (5) of the Appellate Jurisdiction Act 1979 as amended by Act Number 17 of 1993 and award him interest at the rate of 31%. We begin with the prayer for extension of time. When the applicant c appeared before us he stated that he could not make the application in time because he assumed that costs had been awarded. He did not become aware of the true position until the matter came for taxation. This argument may well be true but it cannot assist the applicant in » the circumstances of this case. We say so because even after the ruling in the taxation, which was given on 1 June 1994, and the ruling on the reference therefrom which was given on 12 October 1994, and both of which made it clear that costs had not been awarded and E could not be presumed, the applicant, for well over a year thereafter, persisted in his contention to the contrary as evidence by Civil Reference Number 8 of 1994 and Civil Application number 24 of 1995. In reality, therefore, although the truth was brought to his door, he refused to F accept it, preferring instead to rely on his own wisdom and his ability to have his way. The resulting delay was therefore not attributable to any misapprehension of the judgment; it was entirely of the applicant ’ s own making. His current attempts to shift ground come after realizing the futility of his position and can only be described as an abuse of the court process. We are unable to fault the decision of the single judge and we refuse the extension prayed for. The prayer for additional interest on the sum decreed by the High H Court is equally misconceived. It is an entirely different subject, quite unconnected with this reference, and cannot be considered with it. If the applicant thinks he has a case, let him take it up with the High Court if he can be heard there.The reference is accordingly , dismissed.

ALMAS IDDIE MWINYI v. NATIONAL BANK OF COMMERCE ANDMRSNGEMEMB1TA 83 ALMAS IDDIE MWINYI v. NATIONAL BANK OF a COMMERCE AND MRS NGEME MBITA COURT OF APPEAL OF TANZANIA AT DARES SALAAM b (Ramadhani, J. A.) CIVIL APPLICATION No. 88 OF 1998 c (From the decision of the High Court of Tanzania at Dar es Salaam, Bubeshi, J., dated 30 November 1998, in Civil Case No. 162 of 1994) Civil Practice and Procedure - Notice of Motion - Notice filed without citing D the provisions of the law relied upon - Whether the Notice is sufficient to move the court. The applicant filed a Notice of Motion moving this court to grant a stay of execution of the judgment of the High Court. The first respondent filed a Preliminary Objection e and the second respondent associated herself with it. The tenor of the objection was that this court has not been moved at all by the notice of motion because it did not cite the provision of the law relied upon, to do what is prayed for. Held:(i) As a wrong citation of law renders an application incompetent, non-citation F of the law is worse and equally renders an application incompetent. Application struck out Cases referred to: q (1) Devram Valambhia v.Transport Equipment [1995] T.L.R. 161 (2) National Bank of Commerce v. Sadrudin Meghji [1998] T.L.R. 503 Mr Nyange, for the Applicant H Mr Mselem, for the Respondent I

84 TANZANIA LAW REPORTS [2001]TL.R. A RULING (Dated 10 November 1999) b Ramadhani, J. A.: The applicant has filed a Notice of Motion moving this court to grant a stay of execution of the judgment of the High Court (Bubeshi, J.). The first respondent filed a Preliminary Objection and the second respondent associated herself with it. Meanwhile, c the applicant, wanting to preempt the Preliminary Objection, filed another Notice of Motion seeking to rectify the defect with respect of which the Preliminary Objection was raised. When the matter came for hearing, the learned advocate for the D first respondent, Mr Mselem, wanted to know what the procedure would be; to hear the Preliminary Objection first or to entertain the second notice of motion. I ruled that we proceeded to hearing the Preliminary Objection. In Devram Valambhia v. Transport Equipment e (1) this court has clearly made its position against the practice of pre-empting applications already before it. The applicant was seeking to strike out a Notice of Appeal filed by the respondent because a copy of the same was not served on him. Before that application F was heard, the respondent filed an application seeking to enlarge time within which to serve a copy of the Notice of Appeal in Valambhia. The two applications were consolidated and the court rebuked in no uncertain terms such practice of pre-empting applications. It was on the strength of that decision that I decided to ignore the second G Notice of Motion and proceeded to hear the Preliminary Objection. Mr Mselem submitted that this court has not been moved at all by the Notice of Motion of the applicant because it has not cited H which provision of the law is relied upon to do what is prayed for. The learned counsel cited The National Bank of Commerce v. Sadrudin Meghji (2) as authority for his submission. Mr Nyange, learned advocate for the applicant pointed out that Notices of Motion are provided for in rule 45 which require them to be “ substantially in the Form A in the First Schedule ” . The learned advocate contended that Form A

ALMAS JDDIE MWINYI v. NATIONAL BANK OF COMMERCE AND MRS NGEME MBITA 85 does not contain a citation of the provision of any law in support of the application. It is true that Notices of Motion are regulated by rule 15 and that they are required to be substantially as Form A which does not contain a citation of the provision of any law. However, as Mr Mselem submitted, the practice of this court has always been that a provision of law on which the applicant relies upon to move the court is cited. In the appeal of NBC v. Sadrudin Meghji cited above, a full court said at page 5: It follows therefore that the application has been filed by a Notice of Motion under an inapplicable section of the law. Consequently, as the court was not properly moved, the application is likewise, incompetent. If a wrong citation of a law renders an application incompetent, I have not a flicker of doubt on my mind that none citation of law is worse and equally renders an application incompetent. I reserved my ruling on the Preliminary Objection and I went ahead to hear the application itself. I must say that the application has no merits. As pointed out in the counter affidavit of Mr El Maamry, learned counsel of the second respondent, the tenant who was in the premises in dispute vacated after the decision of the High Court. The applicant, fully aware of the decision against him, went ahead to rent the premises to another tenant. So, the applicant cannot now be heard to complain that if a stay of execution is not granted, the tenant would be irreparably inconvenienced. It is a problem of his own making. So, the application is incompetent for the reason given above and is hereby struck out with costs

86 TANZANIA LAW REPORTS [2001]T.L.R. a FO YA T.Z. AND OTHERS v. NDIGO KIURE NDIGO HIGH COURT OF TANZANIA ATMOSHI g (Mrema, J.) MISCELLANEOUS CI VIL APPLICATION No. 73 OF 1999 c Civil Practice and Procedure - Review of a court of a decision — court with competent jurisdiction to review — a decision of a court of a resident magistrate with extended jurisdiction — Order XLII, rule 1(1) of the Civil Procedure Code. D This was an application for review of the judgment of the court of resident magistrate with extended jurisdiction. The application was brought to the High Court under XLII, rule 1(1) of the Civil Procedure court. The High Court considered whether the application was properly before it. £ Held: (i) The law provides that an application for review may be made to the same court that made the decision sought to be reviewed; (ii) As the decision sought to be reviewed by this application was made by a F court of a Resident Magistrate, extended jurisdiction, this application is improperly made to the High Court. Application struck out G Statutory provision referred to: (1) Civil Procedure Codel966, Order XLII, rule 1- (!)(<?) RULING H (Delivered 16 November 1999) AC Mrema, J.: This is an application for reviewing the judgement j of the learned Principal Resident Magistrate, Extended Jurisdiction, Mrs R.M. Rweyemamu, in (PC) Civil Appeal Number 6 of 1998,

EOYAT.Z. AND OTHERS v. NDIGO KIURE NDIGO 87 which was delivered on 18 May 1998 in the Resident Magistrate ’ s a Court, at Moshi. The application has been brought by the three applicants who were the appellants in the aforementioned appeal, to wit, Foya T.Z., Dismass Mohamed and Hamadi Shauri, hereinafter referred to as B the first, second and third applicants, respectively. The respondent is one Ngido Kiure Ngido. The application has been brought under Order XLII, rule l-(l)(a) of the Civil Procedure Code 1966. c At the hearing of this application the first applicant tendered a document which he said is authority (Power of Attorney) from the other two applicants clothing him with power to appear and prosecute the application for them all. As the document was fully attested by the three applicants I conceded that prayer, allowing Foya T.Z. to appear D and prosecute the application for himself and for the other applicants. The respondent was not present and by a document dated 7 September 1999, also filed in the instant proceeding, very clearly confirms that Ndigo Kiure Ndigo was properly served, hence his correspondence E to the District Registrar purporting to answer the applicants ’ application. From the same document (dated 7 September 1999) I observe the following statement at the bottom of the first page or leaf, which reads: F Naiomba Mahakama yako hii tukufu itakapoona nina haki naomba unipe taarifa kwa anuani hiyo hapo juu. That very clearly, in my opinion, confirms that the respondent did not wish to appear during the hearing of the application. As I have G pointed out earlier on (above) the application is brought under Order XLII, rule 1-(1) of the Civil Procedure Code 1966. For the purpose of this ruling the said law provides as follows: Order XLII, rule 1- 1) Any person considering himself aggrieved: h (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or (b) ... (not relevant here)

88 TANZANIA LAW REPORTS [2001] T.L.R. and who, from the discovery of new important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for review of judgement to the court which passed the decree or made the order, [emphasis supplied] It is evidently clear from the court ’ s records that the judgment from which the instant application is brought was in respect of court proceedings before the court of the Resident Magistrate, at Moshi and not before the High Court. It is not, therefore, the High Court which passed the decree or made the order and for that reason, the application for review of the order or decree of the court of the Resident Magistrate could not be filed before this court in terms of Order XLII, rule 1 - (l)(a) of the Civil Procedure Code 1966. As a result, the application has to be struck out for being incompetent before this court. Accordingly, I strike out the application with direction that the applicants, if they so wish, may file the application before the competent court and to be heard by a Principal Resident Magistrate with extended jurisdiction. It is so ordered and I make no order for costs.

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 89 PASINETTI ADRIANO v. GI RO GEST LIMITED AND a ANOTHER HIGH COURT OF ZANZIBAR ATVUGA b (Kannonyele, J.) CIVIL CASE No. 17 OF 1998 c Labour Law - Quantum Meruit - Circumstances under which quantum meruit is payable. Civil Practice and Procedure - Pleading - Whether courts can make decision p on issues not pleaded. The plaintiff was by written contract employed as Technical Director of Works by the first defendant. On oral instructions by the first defendant, he also worked for the second defendant as manager of a hotel for which he was not paid any wages or any e fringe benefits. Two individuals were shareholders and directors of both the first and second defendant companies. The plaintiff ’ s claim against the defendants is that his Contract of Employment was unlawfully terminated by the first defendant, and for payment for services rendered to the second defendant. In his final submissions the F defense counsel raised a new issue of non registration of the contract with the first defendant executed in Italy and therefore non-compliance with section 46 of the Labour Act 1997 which provides for attestation by the Labour Office in Zanzibar of the Contract of Employment to give it legal force thereunder. G Held: (i) Termination of the Contract of Employment between the plaintiff and the first defendant was unlawful and in breach of the Contract of Employment; (ii) In civil cases, the court may decide on those issues which have been raised in the pleadings and not otherwise; thus the question of non-registration of the contract ® is accordingly rejected for incompetence; (iii) The plaintiff is entitled to remuneration for his services at the second defendant ’ s hotel on the basis of quantum meruit.

90 TANZANIA LAW REPORTS [2001 ] T.L.R. A Judgment for the plaintiff Cases referred to: (1) Zalkha Mohamed v. Juma Mazige [1970] HDC n. 132 B (2) Shah v. Patel [1961] EA 397 (3) Hussein Bhanjee v. NIC [1977] LRT n.26 (4) Joseph Marco v. Paschal Rweyemamu [1971] HCD n. 59 C (5) Venance Kiboko v. Meneja Mkuu, ZSTC High Court (Z) Case Number 7 of 1996 (unreported) (6) Ahmed Said Omar v. Mazsons Hotel Ltd Civil Appeal Number 41 of 1996 (CA) D Statutory provision referred to: (1) Civil Procedure Decree, Order XVI, rule 2 Dr Lamwai, for the Plaintiff E JUDGMENT (Delivered 18 November 1999) F Kannonyele, J.: The plaintiff, one Passinetti Adriano was, by written contract Exhibit Pl, employed as Technical Director of works by the first defendant, a limited liability company. In that capacity, his G duties constituted supervision or management of construction works at the Reef Village Hotel project at Pwani Mchangani, Zanzibar Island. The project was under construction between 1997 and 1998 if it is not still to date. Salary attached to this employment contract was H Italian Lire 2 700 000 per month, plus other fringe benefits. The contract was to last for a minimum of two years effective from 3 May 1997. On 29 May 1998, however, the plaintiff ’ s Contract of Employment I was unceremoniously orally terminated by one of the first defendant ’ s

PASINETTI ADRIANO v. G1 RO GEST LIMITED AND ANOTHER 91 directors, one Mr Fulvio Frigerio. The plaintiff claims (vide plaint A paragraph 10) that this premature termination of his employment constituted breach of the contract and (therefore) unlawful resulting in loss of earnings amounting to Lire 41.1m or the equivalent of USD 23 480 being salary for one year, leave pay and the value of b return air tickets between Zanzibar and Italy. The plaintiff further alleges (plaint paragraph 9) that on instructions by the first defendant, he also worked for the second defendant as manager of the hotel for which he was not paid any wages nor any c fringe benefits. The plaint does not, however, specify for how long he so worked as manager of the hotel but contends that the plaintiff is entitled to a salary therefore on the basis of quantum meruit and that the second defendant be estopped from denying the fact in view D of the fact that he never protested against his services pro tanto. However, the plaint is also silent as to how much salary he is entitled on the said quantum meruit basis. In any case, the total claim is assessed at lire 68 970 500 or USD 39 406 per plaint paragraph 4 E and 10(a) plus 5 and 1 0(b). The plaintiff ended up his plaint with the usual prayers for any other relief as the court might deem fit, plus costs of and incidental to the suit. F In their joint statement of defence, the defendants came up with a Preliminary Objection to the suit on an alleged point of law namely, that the plaint did not aver that either of the defendants would abide by the other ’ s liability be it severally or jointly together were the G suit to succeed in favour of the plaintiff. In the alternative, they prayed that the plaintiff be directed to bring separate suits against either of the defendants. By consent of the parties counsel with leave of the court, however, ruling on the alleged point of law was agreed h to be deferred and consolidated with the ultimate judgement of the court after hearing evidence for and or against either of them, as the case may be. i

92 TANZANIA LAW REPORTS |200l]TL.R. A On the merits of the claims as a whole, the defendants completely denied the contents of paragraphs 4, 5, 9 and 10 of the plaint, admitted with qualifications contents of paragraphs 6, 8 and 11 while the rest of the paragraphs of the plaint were wholly admitted. Whereupon B three issues were ultimately agreed as follows:

1. Whether the contract between the plaintiff and the first defendant was lawfully terminated, and if not, whether the first defendant is in breach of the Contract of Employment. C
2. Whether there was a Contract of Employment between the plaintiff and the second defendant, and if so, at whose instance and on what terms? □ 3. To what reliefs are the parties entitled? The following facts were agreed by the parties ’ counsel namely, that the two defendants are separate (and distinct) companies but that both are managed by one Andrea Novasconi; that there was a Contract E of Employment between the plaintiff and the first defendant and that this contract (between the plaintiff and the first defendant) was to be for a minimum period of two years effective from 3 May 1997. It was further agreed that under the said contrAct the plaintiff was F supposed to be the technical director of works for the first defendant company and that he was to be paid a monthly salary of Italian Lire 2.7 million to be paid in Italy. It was lastly agreed that the contract as thus stated was terminated by the first defendant one year after it G had come into effect, on 29 May 1998. In his evidence at the trial, the plaintiff started by producing as an Exhibit (Pl) an officially translated version (into English) of the copy of the contract between himself and the first defendant. And H he started working as per contract with effect from 3 May 1997. He went on further to say that the first defendant was both owner and contractor of the buildings constituting the Coral Reef Village, a tourist resort with hotel facilities at Pwani Mchangani on the east T coast of the island of Zanzibar. According to the plaintiff, there was no manager of the hotel when he took up employment with the first

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 93 defendant. Hence in October of that year (1997), the directors of A the first defendant company asked him to manage the hotel as well, in addition to his (contract) work as technical director of the first defendant company. According to the plaintiff, however, it was the second defendant company, managing the hotel (sic). The plaintiff b produced letters Exhibit P2 and P3 by which he contends that the two brothers, directors of the defendant companies had recognized him as hotel manager as well. However, his management of the hotel notwithstanding, the plaintiff says that he was paid no salary, therefore c inspite of earlier oral discussions and assumed understandings that he would be paid the same in that respect as well. The plaintiff argues that this was extra work over and above that in his Contract of Employment and, therefore, he expected as much extra pay as well. He stated that he expected an additional monthly salary of Lire 2 million for this additional work as manager of the hotel. The plaintiff further appraised the court that the contract Exhibit Pl provided for 9 days leave for every four months of service. On E this basis, he claims he had acquired 15.75 days of leave for the period between 4 May 1997 and 25 March 1999 which would earn him some ITL 1 417 500 of leave pay at 90 000 liras a day. He claims this amount to his credit. However, the plaintiff does not F liase between this claim and his subsequent assertion by which he reveals that in March 1998 he went home to Italy on 25 days of leave for which he was given a one way (non-retum) air ticket. He completed that leave in April 1998 but makes no disclosure of commencement nor ending dates thereof. It was just verbally agreed (with Fulvio Frigerio - one of the company directors) that I should go for about two or three weeks leave. H Anyway, he got the single journey ticket on 25 March 1998. We may therefore assume that it was thereabout that he commenced his 25 days of leave. We probably may also safely count back to find out for which period were the 25 days of granted leave earned from i

94 TANZANIA LAWREPORTS [2001]T.L.R. A at the earlier stated rate of 9 days of leave for every four months of service. There was, in the contract Exhibit Pl also a provision for a return air ticket each time the plaintiff went on leave. Hence when in March B 1998 he proceeded on 25 days leave he was given an air ticket to Italy. But this was a single journey ticket. The plaintiff said he thought it was because return air tickets issued in Zanzibar were not acceptable in Europe. He therefore expected to get his return air ticket from c Italy. However, although he contacted his employers immediately he completed his leave in April 1998 and asked them for his return air ticket to Zanzibar, his employers always back-pedalled each time asking him to wait until they contacted new investors. He said he D could not prolong his leave any further indefinitely. He therefore bought his own return (one way) air ticket at ITL 1000 300 (about USD 764) and spent another USD 200 with which to renew his work permit. E Exhibit P 1 also provides for two months prior notice as a condition for termination of the contract (article 8). However, he was given no notice nor any prior warning for wrongs committed at work before his employment was terminated on 29 May 1998. The plaintiff said F Exhibit P6 was incompetent to affect the contractual relations as per Exhibit Pl (clause 10.02). If at all, the plaintiff said Exhibit P6 could only affect his oral engagement as manager of the hotel. He emphasized that even if it was true that he had occasioned cash losses G at the hotel which is owned by Ngalawa Ltd., the same could not affect the contractual relations as per Exhibit Pl. In any event, he denied any prior admission by him of the purported cash losses at the hotel at least in so far as he was concerned. He only inquired H for details of the alleged losses but never admitted them as I suggested. Elaborating in his evidence the plaintiff stated that the two defendant companies are closely related by the fact that some, if not all, shareholders have their shares in both companies but more importantly, is that it I was the first defendant company who is not only one of the co-share

PASINETTI ADRIANO v. GI RO GESTLIMITED AND ANOTHER 95 holders but is also the one constructing the second defendant company, a Moreover, directors of the two companies are not only the same but also are two Frigerio brothers, Fulvio and Paolo respectively. Hence distinction between the two companies is not very real and for that reason, he could not quite tell for who Fulvio Frigerio was b negotiating with him on the question of salary for his (plaintiff) services as manager of the hotel. He said that the negotiations led to a mutual understanding between them that there was to be salary for the managerial post at the hotel although they had not yet quite c agreed as to what that salary should be although he expected a salary of Lire 2 million per month by virtue of the on going negotiations. The plaintiff claimed he started to work as manager of the hotel in October 1997 and the same month and the coming November, there were the letters part of whose contents in effect recognized him as manager of the hotel. He went on leave in March, 1998 upon return from which the services were terminated as stated earlier. The plaintiff further claimed that despite some demands, payment E of salaries as per contract also were not as smooth as they ought to have been. They allegedly accused him of idling in Italy before he returned to Zanzibar after his leave and this notwithstanding that he had always contacted them and demanded for his return air ticket F while in Italy (vide Exhibit P4). It was obvious that their relations had turned sour culminating in termination of his employment on 29 May 1998 which, however, he thought it was for the hotel management only. It was not until he realized the defendants were not willing to pay him anything nor deal with him in any other manner that he realized it was all over. It is then he contacted his lawyers. To summarise his claims, the plaintiff produced as part of his evidence summary sheet with the title “ Economical Situation ” . In it H every individual claim is itemized with the amounts due to each as he believes he is entitled to same. Ultimately, the plaintiff also produced the Italian copy of the contract as a sister copy of Exhibit Pl after it was earlier inadvertently withheld when the English translation

96 TANZANIALAW REPORTS [2001] T.L.R. A thereof was produced as Exhibit P 1. It is the Italian copy which was executed by the parties in Italy. There were also references to payments made to his wife in Italy. These include payment of one salary at a monthly rate of 1TL 2.7 B million on 12 June 1997 and two more salaries of the same amount both made on 24 July 1997. The plaintiff acknowledges these payments and they are, respectively, the first and second items in the Economical Situation Sheet. Indeed there were other payments made through c his wife in Italy. The plaintiff acknowledges these as well in the Economical Situation Sheet. Finally, the plaintiff confirmed in a reply to me that they did not introduce the contract agreement Exhibit PI to the Government here in Zanzibar for the purpose of evading D taxation. He said, however, that in so far as he was concerned, he had nothing to do with the non-disclosure of the terms of the contract as per Exhibit PI in that there was provision in the contract that his salary was to be paid tax-free. So much for the plaintiff ’ s case. E The defendants had two defence witnesses namely, Mr Seif Omari (DW1 and Mr Paolo Roberto Frigerio (DW2). The latter is an engineer and building contractor in the business name of Ngalawa Limited which owns and runs the hotel business at the Coral Reef Hotel Village. F On the other hand, Seif Omar Said DW 1 is as so-called local manager of the second defendant company Ngalawa Ltd in the hotel business. Both the defendant companies have common investors, two brothers, namely Messers Fluvio and Paolo Frigerio. However, Gi-Ro Gest, G the first defendant company was only responsible for the construction of the infrastructure at the hotel village no more. Giving his evidence at the trial, Seif DW1 said he knew the plaintiff to be technical director of the first defendant company whose proprietor H is Fulvio Frigerio. However, Seif knew the plaintiff to be also manager of the hotel business owned by Paolo Frigerio in the business name of the second defendant company. The plaintiff came to Zanzibar in May 1997, then only as technical director of the first defendant I company. However, Seif DW1 said he was not conversant with the

PASINETT1 ADRIANO v. GIROGEST LIMITED AND ANOTHER 97 terms of the employment contract between the plaintiff and his employers A except for the fact that the plaintiff started working as technical director from May 1997 and that he was being paid in Italy by the first defendant company. He did not say how he came by the details as to payments of salaries made in Italy were being made by the b first defendant company. According to Seif however, in October 1997, the first defendant through its proprietor asked the plaintiff to manage the hotel business as well. Seif DW 1 said that construction of the hotel village was completed c by October 1997 as and when the plaintiff was assigned the hotel management post. Also according to Seif, the plaintiff was assigned to manage the hotel on the same contract terms and salary as was the post of technical director. According to Seif, the plaintiff had d two options on completion of construction work. He either had to take up the new assignment as manager of the hotel or, in the alternative, return back home to Italy. These new arrangements, however were only by oral directives by Fulvio Frigerio, owner of the first defendant E company. According to DW1, the plaintiff had allegedly agreed with Fulvio on the new assignment, including salary thereof and other contract terms. Seif DW1 said he was not aware of any defaults of payment of salary for the new assignment as hotel manager by the F first defendant company. Seif said the plaintiff managed the hotel from October 1997 up to April 1998 when he allegedly proceeded on leave to Italy. DW1 said he could not comment on anything as listed in the Economic g Situation Sheet nor on any payments effected abroad as per Exhibit P7. Later in cross-examination, Seif DW1 said he worked under the plaintiff when the latter was still with the hotel, one as general manager and the other as local manager respectively. He also admitted he H never participated in negotiations nor in creation of any of the agreements between the plaintiff and his employers, either in the creation of the technical director post and all that went with it, or the other in respect of management of the hotel. He claimed he came to know

98 TANZANIA LAW REPORTS [2001]T.L.R. A details or the much he knew of the plaintiff ’ s terms of employment agreements by going through record of the defendant companies available at office. Thus he knew Exhibit Pl provides in paragraph 2.01 for minimum period of two years services with effect from 3 B May 1997 up to 1999. But he knew of no letter from the defendants to the plaintiff either to terminate his employment in accordance with Exhibit Pl or to transfer him from the employment of the first defendant company to that of the second. But neither has he ever c seen any new letter of appointment from the second defendant company to the plaintiff. But Seif DW1 acknowledged of the existence and contents of Exhibit P3. Thus he confirmed there was still the post and duties of D technical director as on 10 November 1997 according to Exhibit P3 and that the plaintiff was thereby still recognized and required in that capacity by the defendant companies. Subsequently a little later, however, the witness shamelessly countermands his own evidence E as to that effect. In fAct DW1 confessed he had no evidence to offer so as to contradict the plaintiff in terms of his claims as per Economical Situation sheet, his adherence to the shameless countermands notwithstanding. F In his evidence Paul DW2 said he is a co-share-holder in both defendant companies. The first defendant is a building contractor whereas the second defendant manages the Coral Reef Hotel Village. The first defendant company constructed the infrastructure for the G second defendant company. Whereas there is a third share holder in the first defendant company they are only two in the second defendant company, two brothers namely Fulvio Frigerio and Paul Roberto Frigerio who between them have 50% shares each in the second defendant H company. Paolo DW2 acknowledged that at one time the plaintiff entered into a Contract of Employment as per Exhibit P 1 with the first defendant company for the construction of the second defendant ’ s infrastructure. Both the Frigerio brothers signed the Contract Exhibit P 1 on the one hand, and the plaintiff on the other, executed at Milan

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 99 in Italy. Although he had acknowledged Exhibit P 1 and the modus a operandi ensuing therefrom he could not say when exactly the plaintiff started and or ceased to work for the first defendant as per Exhibit Pl. After march last year (1998) the plaintiff was allegedly required to return home to Italy because there were no more construction b work at the Coral Reef Hotel Village. Paolo DW2 said there were no employment relations between the plaintiff and the second defendant company. However, he acknowledged the contents and effect of Exhibit P3 in relation to c the plaintiff ’ s employment contract especially to the extent that it required the plaintiff to continue with maintenance work at the Coral Reef Village. The witness said he never saw the plaintiff again since he left his employment at the Coral Reef Hotel Village. He also D was not aware if the plaintiff ever met with Fulvio while he was on leave in Italy. However, he was aware that the plaintiff had not taken all of his last salary. Paulo also claimed that the plaintiff had stolen some money E from a safe of the hotel and said this was enough to terminate his employment according to article 6.01 of the contract Exhibit Pl but subject to prior notice of no fixed time. As regards to holidays, Paolo D W2 claimed that he had come over to Zanzibar, with agreement F with the plaintiff, his wife at the defendants expenses and that this he said substituted any leave claims that might be due to the plaintiff. In the alternative, he said the plaintiff should first pay them his wife ’ s hotel expenses and likewise they will pay him over his leave entitlements, g When cross-examined, Paolo denied he was also a director but only shareholder of the first defendant company. He appraised the court that the plaintiff worked with the first defendant company exactly between and from 19 May 1997 to 19 March 1998 inclusively. He H also confirmed that for his period of service with the first defendant company the plaintiff was entitled to a total salary of ITL 29.7 million as per the Economical Situation Sheet. However, he said he had no evidence to offer in a documentary form to prove that the plaintiff i

100 TANZANIA LAW REPORTS [2001]TLR. A was in fact paid so much of the salary as was due to him. Instead he admitted it was true the plaintiff had received only ITL 23.9 million salary paid either directly to himself or through his wife in Italy. Hence the deficit of ITL 5.8 million and now due to the plaintiff B was acknowledged albeit with deductions. He claimed there was to be deducted from the plaintiff ’ s salary of some USD 2548 which he said was an equivalent of ITL 4.4 million being the sum the plaintiff had allegedly lost from the safe of the hotel as allegedly earlier c admitted by him in a letter written to the defendants. At the insistance of the court, the letter was subsequently produced as part of evidence herefore (vide Exhibit DI and 2) although it had allegedly been handed to their counsel for that purpose. In another stance, however, Paolo D said the plaintiff was merely making inquiries (about the alleged losses) through the said letter. Elsewhere the witness DW2 purported not to know why messages like Exhibit P 2 and 3 were routed through the plaintiff who was a E mere technical director for construction and had nothing to do with management of the hotel about which those letters dealt with. Yet in another instance, Paolo claimed that such letters were routed through, and other hotel workers (e.g. Hilario) required report to the plaintiff p only allegedly because Gi-Ro Gest for whom the plaintiff was working was spending money from Ngalawa (second defendant) resources and income. Also, he acknowledged one Ms. Passinetti, the plaintiff ’ s wife, having come to work at the hotel ’ s kitchen on about two or three different phases although he does not know of what exact duration thereof severally or all cumulatively together. Mr Paolo DW2 appraised the court that during her stay in Zanzibar, the plaintiff ’ s wife stayed at the hotel rendering free services in lieu of her stay in the hotel free of any charges. Yet, he said they decided to deduct the plaintiff ’ s H unpaid salaries being expenses for his wife ’ s accommodation at the hotel on one of the occasions she stayed there. At another stage, the witness admitted that one Andrea Novasconi who came to work as manager of the hotel started so to work in the

PASINETTI ADRIANOv. GI RO GEST LIMITED AND ANOTHER 101 absence of the plaintiff while the latter was away in Italy. However, A he denied Fulvio was in Zanzibar and had the key for the security while the plaintiff was away in Italy. B “ If it is true that Fulvio was in Zanzibar at the Coral Reef Hotel Village during the plaintiff ’ s absence there, then it is possible that he (Fulvio) had the key for b the security room with him ” , he said. Paolo suspected signature of the addresser in Exhibit P6(a) could be Fluvio ’ s as it is presumed. He doubted if it is. (Exhibit P6 is the one which for the first time talks of heavy financial losses caused by the plaintiff at the hotel c and goes on to terminate the plaintiff ’ s employment with Gi-Ro Gest because of those losses). Paolo also admitted that the plaintiff was entitled to ITL 90 000 per day of leave entitlement. I would in the first place, like to begin with the Preliminary Objection d to the suit on an alleged preliminary point of law raised by the defendants paragraph of their joint written statement of defence. The defendants have alleged that the plaint does not disclose an averment that the one defendant would abide by the other ’ s liability either severally E and or jointly together should the plaintiff succeed in the suit. They pleaded in the alternative that the plaintiff should be directed to file separate suits against the defendants. In essence, this is a plea of either mis-joinder or non-joinder of parties in a suit and the defendants F would want to see a remedial measure although they do not say so in quite clear terms. In my understanding, it is Order XVI, rule 2 of The Civil Procedure Decree, in pari materia to Order 14, rule 2 of the Indian Code of g Civil Procedure before it was substituted by Amendment Act 1976, which gives power to the court to deal with an issue in a case as a preliminary issue of law. The rule provides as follows, namely: Where issues both of law and of fact arise in the same suit; and the count H is of opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purposes may if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. I

102 TANZANIA LAW REPORTS [2001]T.L.R. A In my opinion, issues of law are raised in pleadings as preliminary points to be determined with the object that they should be disposed of first before the suit proceeds to be determined on the merits of its factual issues. It is thereby intended that when and if an objection b to the suit is allowed upon determination of the issue of law, either the suit collapses as a whole or else the particular issue of law is thus determined once and for all and it shall not be open in future to re-open any further arguments on it in that case. Thus for example, c a party may raise that the suit is unsustainable on account of limitation or lack of cause of action or complete lack of jurisdiction by the court. If the issue is determined and the objection as to that effect is ultimately allowed, then in relation to that court, the suit is determined D once and for all. That is to say, the suit will be finally disposed of on the issue of law as raised in the Preliminary Objection and unless such an issue is not finally conclusive of the whole case, that would normally be the end of the matter. E In this case the issue raised in the Preliminary Objection is as indicated earlier, either it is mis-joinder or non-joinder of parties. I respectfully concur with Dr Lamwai, learned advocate for the plaintiff, that the issue cannot and could not be finally disposed of as a preliminary F point of law. If anything, mis-joinder or non-joinder of parties, as the case may be, constitutes both issue of law as well as issues of fact. It needs to hear the evidence on the matter so as to appreciate whether or not there is indeed mis-joinder or non-joinder of the parties and this could not be properly dealt with as a preliminary point of law. It was therefore just proper that it was agreed to defer determination on the objection raised purportedly on a point of law so that the same could be dealt with together in the final judgment of the case. I now hold that the objection was unsustainable in the H circumstances of this case and the same is hereby accordingly overruled. Next, I wish to point out here at the outset, that if cogency of testimonies and veracity of witnesses were the only criteria to be considered in determining cases, then I would straightaway here and

PASINETTI ADRIANO v. GI RO GESTLIMITED ANDANOTHER 103 now state that the plaintiff has won the suit at least by about seventy a five per cent of the arguments if not the issues to be determined by the court. To a greater extent the plaintiff succeeded in convincing the court as to how the contract between the parties (Exhibit Pl) was executed in Italy and as to what extent it bound who among the b litigants in this case. A fortiori he also succeeded in leading as much convincing evidence showing how as between them were the defendants related to each other both the form of natural persons of the major players or participants involved in the conflict and also the legal c persons impleaded in this suit. Quite pertinently, the plaintiff appeared to be more truthful in his words such that even when and where he floundered in his answers, he appeared more natural and genuine and, therefore, equally more D convincing. Take production of the original (Italian) version of the contract Exhibit Pl for example, it was not produced early in time when it should. Only the translated English copy thereof was produced (on 4 December 1998). When he was later accosted to comment on e the omission, the plaintiff (PW1) appeared genuinely confused to state why it was not. He thought he had handed it over to his counsel for use as potential evidence in the case and he believed it was lying somewhere either in the counsel ’ s file or among the documents already F presented to the court (as one of the appendices to the pleadings) with a view to its ultimate production as an exhibit herein. Otherwise, he said he did not know where it was lying among his possessions and why it was inadvertently left behind if indeed he had not already handed it over to his counsel. I believed him pro tanto, his demeanour taken into account. In fAct the original copy of the contract executed in Italian was left behind at home in Italy, his counsel having apparently been contented with the English version thereof whose production was not even contested by the defence counsel albeit not signed by H his clients. Surprisingly, however, production of the signed original document was by the defence counsel contested not until the court overruled the objection and ordered for its production. In conclusion, therefore, I would simply say, that the plaintiff appeared to be more 1

104 TANZANIA LAW REPORTS [2()01]T.L.R. A genuine and as much truthful in his evidence. For that reason, he was more convincing and captivating to the court. In contrast to the foregoing, most of the defence evidence, both by Seif DW 1 as well as that by Paolo DW2, appeared to be much of B a make-shift and, for that reason less convincing. Moreover, even the witnesses themselves appeared to be apparently less informed of the requisite details and in a number of instances they admitted as to that effect. In essence, these witnesses appeared to be more c strangers in the dispute. Hence their lack of the much needed compelling will power and cogency of most of the matters they averred. Now, we saw that the first issue is whether the contract between the plaintiff and the first defendant was lawfully terminated and if D not whether the first defendant is in breach of the contract. First of all I wish to express the view that the manner in which this issue was framed is repetitive and, therefore, superfluous. In my opinion, if a party to a contract unlawfully terminates the contrAct he is E automatically in breach of that contract. A fortiori and to put it affirmatively and more meaningfully in the manner the issue was framed, the contract was lawfully terminated by the first defendant he cannot at the same time be considered to have been in breach of F that contract as it is being questioned. For he will have acted lawfully after all and, therefore, free from any blemish, legally. Or was the second part of the issue aimed at addressing the question as to whom exactly was responsible for the unlawful breach of the contract when G and if it is held that it was? Perhaps. Be that as it may, I will now address my mind to answering the twin issues as it ought to be. As will be recalled from the evidence, article 8 of the contract Exhibit P 1 was cited as providing for two months prior notice before H termination of the contract can be effected. According to the English version of the contract Exhibit P 1, the substance of which was uncontested by the parties during the trial, article (8) provides as follows: 8 Recess From The Contract. Each party can withdraw from the contract 1 at any time, giving to the other, two months notice.

PASINETTI ADRIANOv. GI RO GEST LIMITED AND ANOTHER 105 (May be there is the word “ by ” between the words “ time ” , and “ giving ” a below where I have marked with an asterisk. However, this is not quite clear from the exhibit itself due to inking by a rubber-stamp. At any rate, I am satisfied the true intent of the article can be deduced and easily understood). There is also article 6 of the agreement Exhibit b Pl It provides: 6. Anticipated Resolution of The Contract 6 .01 The conclusion of the work to which the employee is assigned and also to the fact that the duties entrusted to the employee are no longer considered necessary will constitute, through previous notice, a justified reason to cancel the terms of the contract. 6 .02 The company can terminate the present contrAct even before the jj expiry term, as for example, in the following cases: (The particular instances and then particularized in paragraphs (s) to (j). Reading the two articles closely together, it is my opinion that article 8 anticipates those situations where a party to the contract of his E own accord decides to withdraw from the contract for any reason whatsoever, negative or positive. It is the party himself who, for his own reason, on his own opts to step aside from the contact. He will be permitted to do so provided he gives two months prior notice to p the other remaining party or parties, as the case may be. In such case, the party withdrawing from the contract is not kicked out by the others. It is himself who opts to step aside from it. In this case, the plaintiff nor any other party, did not of his own G opt to step aside from the contract. Rather, the plaintiff was pushed out from it against his will. Hence, assuming that my interpretation of article 8 above is correct as I believe that it is, then that article cannot apply in the circumstances of this case. It is for that reason h accordingly ruled out. Article 6.01 on the other hand, anticipates those situations where the contract is determined due to completion of the work for which the employee, in this case the plaintiff, was first employed. Hence, I

106 TANZANIA LAW REPORTS [20OIJT.L.R. A determination of the contract can only come about only if the work for which one was employed is no more, any case, it must be preceded by prior notice. It is not stated how long the notice should be. However, judging from the spirit of article 8 discussed above, is just reasonable B to assume that here also the parties had in mind two months notice. It is held accordingly. However, it is important that completion or anticipated completion of the work precedes the issue of the notice. It is a condition precedent to issuing of the notice. If there is still c work and or its completion is not within the foreseeable future, a notice would be incompetent. In this case, the evidence as materially uncontested indicates that termination of the plaintiff ’ s employment was not proceeded by any prior notice as provided under article 6.01 D of the work agreement. Moreover, the sentence: It is essential that the bedroom next to the office should be usable and occupied by Ilario and Peter reading in Exhibit P2 but particularly the other. E For Adriano: to start work in the villa number 13. To paint all bedrooms which show fungus, to start all maintenance general works eventually engaging daily new personnel found at page 2. Exhibit 2 and Exhibit P3 indicate that as of the time those letters F were written on 31 October 1997 and 10 November 1997 respectively, there was still construction work for which the plaintiff was employed as a technical director. G But, by those very letters namely, Exhibit P2 and P3, the plaintiff was being asked or rather instructed to supervise operations of the hotel. For example, Exhibit P2 addressed to Mr Adriano reads in part: H Mr Adriano on 2 November 1997 with this letter, Peter and Ilario are arriving in the village to help you in management of the hotel Peter will attend the customers and Ilario the reception. j We have received some complaints for the quantity of food, which must always be plentiful, and for the change of linen, towels in the bedroom.

PASINETTI ADRIANO v. G1 RO GEST LIMITEDANDANOTHER 107 This is as clear as it is that the plaintiff was already managing operations A of the hotel and Peter and Ilario were arriving merely to assist him in this work at the hotel, the one in attending to customers and the other at the reception. However, his management of hotel operations notwithstanding, the plaintiff was still the technical director. Hence b the directives that he should start work at the villa number 13, paint the bedrooms and start general maintenance. What is clear from this is that although he was now managing the hotel operations over and above Peter and Ilario, the plaintiff had not relinquished his original c work as technical director. It is therefore not correct to say that plaintiff took up management of the hotel because there was no more construction work to be done nor that he had since abandoned his post as technical director. Evidence available in the record simply does not support these claims. We revert to article 6 of the Contract of Employment as per Exhibit Pl. Defence counsel argued in his final submissions that since article 6.01 is silent on the period of notice, then even one e day notice would suffice. With due respect, this is unsustainable for two reasons. Not only is the suggestion unreasonable but there is also practically no evidence at all even to suggest much less to show that even the said one day ’ s notice was given to the plaintiff F before article 6.01 of the contract Exhibit Pl was implemented. Hence article 6.0 does not apply here for want of prior notice being issued to the plaintiff. Article 6.01 of the agreement is accordingly ruled out. G Article 6.02 of the agreement as per Exhibit Pl presupposes proof of or at least the laying of clear charges against the employee mentioning those vices as are listed in paragraphs 9(a) to (j) of the article. In this case, no such vices had been proved against the plaintiff. H Yes, there were the allegations mentioning loss of funds at the hotel being leveled against the plaintiff. No charges much less clear charges had been laid against the plaintiff neither in any criminal court nor adequate disciplinary charges in that regard. Even when the plaintiff tried to make inquiries on the alleged loss of funds, he got no reply

108 TANZANIA LAW REPORTS [2001] T.L.R. A to clarify the claims as he had requested. He got dismissed instead and so against the rules of natural justice. But if for the alleged loss of funds at the hotel, it was incompetent for two reasons. First, misconduct by the plaintiff while in the discharge of duties of and B at the hotel (hence in the employment of the second defendant company cannot competently be ground for terminating his employment with the first defendant company in terms of the contract Exhibit Pl because the second defendant who runs the hotel is no party to that contract c notwithstanding that the two Frigerio brothers who as directors of the first defendant, are signatories thereto on behalf of the employer (First defendant) are interested parties in the affairs of the hotel managed by the second defendant company being the sole shareholders jj thereof. Secondly, the plaintiff was entitled to be heard before he was fired from his work not only as technical director as per contract but also for the hotel management post in which his services had already been recognized at least by conduct. E In relation to the alleged loss of hotel funds, however, not only are the allegations weak for the aforementioned reasons alone; the source of such allegations is also dubious. I have in mind the evidence of Paolo DW2. Exhibit P6 which makes the first claims alleging F loss of funds of a doubtful origin. There was also the possibility that someone whose true identity is not quite revealed by the evidence could have had an access to the safe keys in the absence of the plaintiff as the latter was away in Italy. Who that someone could be is not easy to establish by the evidence available. Whereas Seif DW1 is not quite a reliable witness in this regard due to the fact that much of his evidence is reported information (hence hearsay evidence) acquired from his reading of the office records as he stated himself. Paolo DW2 on the other hand clearly stated he suspected the letter H Exhibit P6 was authored by Fulvio Frigerio indeed as the same is purported to be signed by him. In particular Paolo suspected the signature appearing there at the same time doubting if Fluvio could have been in Zanzibar indeed at the time when that letter was authored. 1 On the other hand, is conceded that another Andrea Novasconi who

PASINETTI ADRIANOv. GI RO GEST LIMITED AND ANOTHER 109 replaced the plaintiff in managing hotel operations started to work a in that capacity in the absence of the plaintiff. That means that there was no handing over of the hotel ’ s operations between the plaintiff and Andrea Novasconi. When therefore it is conceded that someone had had an access to the hotel ’ s safe key in the absence of the plaintiff b there at the hotel, when also it is not clearly established who is that somebody who had such access to the key in the absence of the plaintiff, whether Andrea Novasconi or Fulvio Frigerio. The alleged loss of funds cannot with certainty be leveled against the plaintiff. c In any case, he should not, under the rules of natural justice, be condemned unheard, neither criminally nor disciplinarily as is intended here. By the way, is it not possible in the circumstances that the letter Exhibit P6 whose originating signatory is now doubted by Paolo DW2 and which alleges loss of massive funds for the first time is nothing but a forgery? If it be a forgery as is now doubted by DW2, by who and for what purpose could it have been so forged? In any case, would the circumstances thus obtaining in relation to the alleged loss of hotel funds justify condemning the plaintiff unheard to the E extent of terminating his employment in the manner as proposed by the defendants here? I think not, at least not in accordance with the law. Hence the first leg of the first issue in the series is answered in the negative. That is to say, termination of the Contract of Employment F between the plaintiff and the first defendant company was, in the obtaining circumstances as revealed by the evidence as accepted by the court, unlawful. G As regards to the second leg of the first issue, both Paolo DW2 and Seif DW1 came to testify as defence witnesses in the interests of the two defendant companies in this case. They both maintained that the defendant was properly terminated from the services, not only as hotel manager for the second defendant company but also H as technical director of the first defendant company in terms of the contract Exhibit Pl. None of them, namely, neither Seif DW1 nor Paolo DW2 disclaimed or disowned the letter Exhibit P6 and DI (B). These were, respectively the letter alleging loss of funds and 1

110 TANZANIA LAW REPORTS [2001]T.L.R. A purporting to invoke article 10.02 of the contrAct Exhibit Pl on the one hand, and the plaintiff ’ s response thereto in which he inquires for details of the alleged loss of funds on the other. That notwithstanding, the two defence witnesses also affirmed the plaintiff ’ s purported B oral termination of his services with either of the two defendant companies. However, I have, I think, sufficiently demonstrated how unlawful the purported termination of the plaintiffs services both as manager of the hotel but with the first defendant company in particular. c It follows, therefore, that the second leg of the first issue is answered affirmatively namely, that the first defendant company is in breach of the Contract of Employment as per Exhibit P 1. I note with disappointment that at the end of his final submissions, D defending counsel raised a new issue of non-registration of the contact executed in Italy and therefore non-compliance with section 46 of the Labour Act 1997 which provides for attestation by the Labour Office in Zanzibar of the Contract of Employment to give it legal E force thereunder. I say “ with disappointment ” because it is stale law that in civil cases, the court may only decide on those issues which have been raised in the pleadings and not otherwise: Order VI, rule 7 of the Civil Procedure Decree (q.v.) hence it was held in Zalkha F Mohamed v. Juma Mazige (l)(Seaton, J. as he was citing Shah v. Pate (2) (slightly paraphrased) thus: The whole object of pleading is to bring the parties to an issue, and the meaning of the rules is to prevent the issues being enlarged which would G prevent either party from knowing when the cause of action came on for trial, what is the real point to be discussed and decided ... [I]t is for the (party) to plead the (issue or fact) ... (so as to give the other party) an opportunity ... to call evidence (thereon) ... [I]t was too late to rely on in jj final address when evidence had been closed. In another case: Hussein Bhanjee v. NIC (3) (as per Mustafa, Ag VP) the Court of Appeal held: [T]he question whether the appellant was entitled to the value of the

• lorry never became an issue in the pleading or in the trial itself, nor was it

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER III canvassed or left to the judge for decision. A last minute attempt by A (counsel ... to include such an issue was rejected (on appeal) ... In yet another case: Joseph Marco v. Paschal Rweyemamu (4) Mfalila, J. (as he then was) was more pertinent when he held that: B In civil cases, it was extremely important for a trial court to limit its findings to the issues as revealed by the state of the pleadings, and no party should be allowed to go outside his pleadings ... Order VI, rule 7. The purpose ... is to prevent parties from introducing new matters without giving adequate time to the opposite party to answer. Pleadings are meant to clarify and identify the areas of dispute between the parties. The way each side is afforded sufficient opportunity to prepare its case on the point in dispute D This question of attestation of the contract under the labour law introduced so late in final submissions by counsel after close of evidence by the parties is rejected for consideration here, because it is incompetent when and as it comes in this case. We can never „ is tell what the plaintiff would have said in reply to it. He might have had sufficient and quite convincing evidence to defeat it only if he was afforded with the necessary opportunity to prepare his defence there against. Regard is particularly had in mind to his evidence that when the defendants dragged their feet, he had to spend his own F money (USD 200) in order to renew his work permit for his continued residence in Zanzibar in honour of the contract Exhibit P 1. He probably would not have done this if he was privy to the concealment of the contract and therefore its (alleged) non-registration under the Zanzibar G Law. It is therefore emphasized that the question of non-registration of the contract thus lately raised in final submissions by defence counsel is accordingly rejected for incompetence. H I will now turn to the second issue: whether there was a Contract of Employment between the plaintiff and the second defendant, and if so, at whose instance and on what terms. According to the plaintiff, they were still negotiating the terms of this contract, particularly regarding salary, when their relations turned sour. However, according 1

112 TANZANIA LAW REPORTS [2001]T.L.R. A to his evidence, it was directors of “ my company ” who asked him to manage the hotel as well. According to the contract, Exhibit Pl, “ my company ” in this sense should mean the first defendant company, and therefore directors of the first defendant company who, according B to the plaintiff asked him to manage the hotel. However, according to that same evidence, directors of the first defendant company are the two Frigerio brothers, Fulvio and Paolo respectively. Paolo, DW2 conceded that both he and his brother Fulvio were directors of the c first defendant company. He also conceded that they both signed the contract, Exhibit Pl on the one hand and the plaintiff on the other definitely as employee according to that contract. On the other hand, whereas the plaintiff stated that the two Frigerio brothers are joint shareholders in both defendant companies, Paolo DW2 said this was not correct. According to Paolo DW2, he and his brother Fulvio each has 50% of the shares in the second defendant company and are the sole proprietors thereof. In the first defendant company, however, he said that while he (Paolo) bought one per cent of the shares there, Fulvio his brother has none. Paolo said another John Fanko Marte also has one per cent shares in the first defendant and that the rest of the shares there are held by an Overseas United Trust. However, Paolo does not know whether or not his brother Fulvio F has any shares in the said Overseas United Trust. As regards to directorship of the two defendant companies, Paolo said he was not a director of the second defendant company himself. Meanwhile, the letter Exhibit P2 was signed by Fulvio while Exhibit P3 was signed jointly by Fulvio G and another Andreas. These are the letters which the plaintiff contends and earlier accepted herein above that they contain evidence of directors of the two defendant companies recognizing the plaintiff as manager of the hotel effective from October, 1997. H It will be found from this analysis that the relationship of the two companies between themselves, their shareholders and their directors or managers generally is so complex such that one may not easily discern their boundaries. Whether this is by design or by sheer accident 1 is anyone ’ s guess and that is not what I am required to canvass here.

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 113 Complex as it may be, what is clear is that in relation to the first a defendant company, the two Frigerio brothers, Fulvio and Paolo are co-directors thereof and, in relation to the second defendant company, they are joint but sole shareholders at parity, each with fifty per cent of the total shares thereof. Hence where they acted jointly together b in relation to the affairs of the first defendant company, it would seem they were doing so in their capacity as directors of that company and, in relation to the second defendant company, it seems likely that they were acting in their respective capacities as shareholders, c in each case either in their joint positions as such or severally, as the case maybe. But what of the companies inter-relationship in connection with such dealings? What would be the legal effect of such actions where and when they affect either of them one way or the other, or those whom they deal with when and if these actions affect both companies? Where does one draw the line of demarcation to say this is in the legal province of one and that is not, both the individual natural persons performing those actions and the respective individual companies affected by the actions of those natural persons? E A fortiori how does a third party as was the plaintiff here make the distinction? I bet it is not easy. And that the position the plaintiff found himself in when he dealt with the defendants and the natural persons connected with them either as shareholders and or actions F giving rise to the dispute must be allocated one way or the other so that in the end legal remedy, if any, may also be possible to allocate to whoever is ultimately considered as liable therefore whether by himself alone or jointly together with the other. I shall now attempt G to do this on the balance of probabilities and the preponderance of the evidence in relation to the second of the issues in the series. I am satisfied with the evidence as it obtains that Paolo DW2 and his brother Fulvio are sole proprietors of the second defendant H company each with fifty per cent of the shares therein. I am also satisfied, at least on the balance of probabilities, that both Paolo DW2 and Fulvio, his brother are joint directors of the first defendant company whereas full membership of directorship in the second I

114 TANZANIA LAW REPORTS 12OO1]T.L.R. A defendant company has not been fully established by the evidence available just as much as has not full ownership of the shares in the first defendant company, is therefore possible, going by the evidence in record, that Paolo DW2 is not but only Fulvio is director in the B second defendant company but these cannot as facts be ascertained by the evidence available in the record. Likewise, it is possible that Fulvio has no shares in the first defendant company but he possibly may be having his shares in the Overseas United Trust which in turn c is the majority shareholder in the first defendant company. However, this also cannot be ascertained by the evidence available on record. So also is the exactitude of the influence which either Paolo and or Fulvio as such natural persons can exercise in either of the two defendant D companies. This also cannot be ascertained by the evidence available in record albeit it is abundantly clear that both of them had a certain amount of influence in either of the two companies. It is only the exactitude of such influence which cannot be ascertained by the evidence available. E On these premises, one can hold with impunity, I think, that the plaintiff was entitled to assume that both Paolo DW2 and his brother Fulvio had and could speak with equal force and authority in the F affairs of the two defendant companies and further that any deal struck with either of them severally or jointly together would equally bind either of the two defendant companies. Which is why I hold that in the circumstances of this case, then whoever the plaintiff discussed with concerning his appointment as manager of the hotel, be it Paolo or Fulvio, the same had the full impact of convincing the plaintiff that he was dealing with the right authority regarding the affairs of the second defendant company in the same way as both or either of them were/was a party to the contract Exhibit P 1, H formally hold accordingly. But were there any such discussions indeed between the plaintiff with either Paolo and or Fulvio (severally or jointly together) which were designed to engage the plaintiff as manager of the hotel? There

PASINETTI ADRIANOv. GI RO GEST LIMITED AND ANOTHER 115 may be scant direct evidence with which to answer this question in A the affirmative. It is only the plaintiff who claims there were such discussions or negotiations except that they had not quite agreed on the terms but the salary in particular. The defence, however, seems to deny this either expressly so or by inference. In this respect the learned b defence counsel submitted that the plaintiff ’ s acceptance of extra work against his contract with the first defendant and so without any more ado should be interpreted to mean that either he had agreed to work for the second defendant on the same but only salary as he earned c from the first defendant or that the had displayed an obvious agreement to substitute a new contract for the former one, or to rescind same or to alter it. The learned counsel advanced these theories arguing that there D was no evidence with which even to infer the existence of a Contract of Employment between the plaintiff and the second defendant. To support the validity of his argument the learned defence counsel cited section 62 of the Contract Decree which prescribes what is E known as the principle of novation in contract. In reply, Dr Lamwai for the plaintiff argued that the principle of novation cannot apply in this case because, he said, there is no evidence of discharge of the former party to the contract Exhibit P 1 nor is there any evidence F of taking over by the second defendant the duties of the first defendant. To support his argument, learned counsel for the plaintiff Dr Lamwai cited paragraphs 460 and 464 of Halsburys Laws of England, Volume 8 (ed) (Sin at pages 262 and 265 respectively to support his arguments on the principle of novation. Other than Halsburys Laws of England (which I have not been able to refer to due to the poor state of the library in this High Court) other authorities have also defined “ novation ” to mean: H ... a generic term which signifies that there being a contract in existence some new contract is substituted for it, either between the same parties or between different parties; the consideration mutually being the discharge of the old contract. In particular, however, it denotes the rescission of

116 TANZANIA LAW REPORTS [2001]T.L.R. A one contract and the substitution of another in which the same acts are performed by different parties ... “ Chitty on Contracts (General principles), (22 ed) (1961) at paragraph 949 on page 421. Earlier on, the author emphasized at paragraph 946 on page 419 that: B Novation takes place where the two contracting parties agree that a third shall stand in the relation or either of them to the other. It is a new contract and therefore essential that the consent of all parties shall be obtained, and in this necessity for consent lies the essential difference between novation and assignment ... Some thirty years later, Cheshire, Fiffot and Furmston in the Law of Contract, (12 ed) (1991) at page 518 retain the essential of the D definition for novation thus: Novation is a transaction by which, with consent of all the parties concerned, a new contract is substituted for one that has already been made ... In each of these texts, the authors both emphasize on the essentiality of the existence of consent by all the parties concerned in the novation of the particular contracts, namely, the new agreement substituting the old one with a third party with his consent replacing one party in the former thereby completely discharging the latter from the old F contract now replaced by a new one. In the instant case, there is practically no evidence at all to show that there was consent, express or implied, between the plaintiff and the first defendant company on the one hand and between the plaintiff and the second defendant company on the other, so that a new contract is created between the latter two parties whereby the second defendant replaces the first defendant standing in the relation of the two contracting parties as per contract Exhibit Pl. In other H words, just as there was no evidence on record showing the existence of a contract or agreement of employment between the plaintiff and the second defendant on the one hand, so also was there none to show that the plaintiff had agreed to work for him (second defendant) 1 on only that salary of the first defendant company other than the

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 117 plaintiff ’ s own testimony and version of the story in that regard. So A much the more on the alleged display of agreement to substitute, rescind or alter the contract Exhibit Pl dated the 3 May 1997. Quite to the contrary, we have on record only the plaintiffs own evidence that there were on-going negotiations with a view to paying him (plaintiff) b extra wages for his services as hotel manager for the second defendant and that as early as October 1997, the two defendants severally and or together had recognized him as such manager of the hotel while on the other hand there was still some construction work to be done c as per contract Exhibit Pl vide the defendants ’ own letters Exhibit P2 and P3 respectively. Such other than the plaintiff ’ s own testimony on this, there can be no basis of rejecting his version of the story except and unless the same is made outside of the judicial mind. I rule out novation for lack of evidence to prove mutual consent between the parties concerned, to create a new contract in substitution of the old one as per Exhibit Pl. Rather, it seems probably true to me that there probably were some on-going negotiations designed e to engage the plaintiff for extra work at the hotel on new wages other than what had earlier been agreed as per Exhibit P 1. 1 am fortified on this view by the evidence which shows that the plaintiff was already managing the hotel while there was still more construction work to F be done as per Exhibit Pl. I am also fortified in this view by the failure by the defence witnesses to show by what evidence the said novation can be proved. We need clear evidence as to that effect, certainly not by inferences to be made in that regard while there is in existence contrary evidence from the plaintiff. But was there created any Contract of Employment between the plaintiff and the second defendant company and, if so, at whose instance and on what terms? Considering all the historical background of this H case, I am constrained to have to answer this first leg of the question in the affirmative. And for the second part of the question, I say it is the two Frigerio brothers who, either as director of the first defendant company or as co-owners of the second defendant company, or both, by their conduct ascertainable in writing vide Exhibits P2 and P3,

1 18 TANZANIA LAW REPORTS [2001] T.L.R. A had led the plaintiff into believing that he had secured new but additional job or additional new pay, the latter having not been agreed as yet when the relations turned sour. The evidence is just too convincing that this was the case although perhaps only intended to last as a b temporary measure. Otherwise, after Fulvio had written (Exhibit P2) to the plaintiff that: Mr Adriano ... Peter and Ilario are arriving in the village to help you in the management of the hotel ... [emphasis supplied] C And again, by Exhibit P3, that: The duty of the last (Mr Ilario) ... is (a long list of hotel duties) and, if eventually should he need more help he will have to speak to Adriano in D order to obtain authorization of engaging new people. Furthermore we specify, that only Mr Adriano can go to town ... if, for his duties he should require further personnel, the authorization for the new engagement shall be given by Mr Adriano. E It is abundantly clear that the plaintiff was being entrusted with senior management duties of the hotel. These are the affairs of the second defendant company. However, at the same time, the plaintiff was, by the same letters, also being told that: F It is essential that the bedroom next to the office should be usable and occupied by Ilario and Peter ... and, further, that: G ... he is responsible for the maintenance at the village of all civil and plumbing works. For Adriano: to start works in the Villa number 13, to paint all bedroom which show fungus, to start all maintenance general works... As clearly it shows, these latter are civil works; the province of the first defendant company and for which the plaintiff was employed as Director of Works by the defendant company. The defendants Fulvio and proprietors of the second defendant company in particular 1 cannot deny they had instructed the plaintiff to perform senior

PASINETTI ADRIANO v. G1 RO GEST LIMITED AND ANOTHER I 19 management duties of the hotel of the second defendant while at A the same time retaining his duties as Director of Works of the first defendant company. And the plaintiff performed both duties until he left to go on leave sometime in March, 1998. With this display by their conduct, the defendants are now estopped to deny the fact, b However, in this new assignment, the plaintiff could not have been working for charity and we have seen it could not have been on the same old salary as per contract Exhibit Pl. I believe it is true that the plaintiff performed this extra new job in the hotel strongly c believing that he would in the end be remunerated by an extra new salary, the amount of which they were still negotiating when their good relations were strained on these premises. I am satisfied there was oral agreement established by the parties ’ conduct towards each d other. Natural persons inextricably dealing and or with the affairs of either of the two defendant companies had by their conduct, led the plaintiff into believing that he had struck a new deal for which he would be paid for working extra in the hotel as well and he did so. e However, as I said recently in another case, Venance Order Kiboko v. Meneja Mkuu (5), that the problem with oral contracts is that they are difficult to ascertain the exactitude of their terms when and if disputes arise as is now the case here. In such cases, the contending F parties usually tend to capitalize on the fact that the contract is unwritten and their unrecorded terms are not available for cross-checking and as an aid in settling the dispute. But that is not to say that oral contracts are not provable or enforceable. In yet another unreported case, Ahmed g Said Omar v. Mazsons Hotel Ltd (6) the Court of Appeal had this to say: Upon close examination of the history, circumstances of the case and the law of contract which gives room for unwritten agreements as binding H contracts, the conduct of the defendant in the handling of this matter is relevant. In this connection, the provisions of section 8 of the Contract Decree, Chapter 149 of the Laws of Zanzibar would ... apply. It provides for the performance of a contract by conduct ... From the exchange of I

120 TANZANIA LAW REPORTS [2001]T.L.R. A letter between the (parties) it is common ground that the appellant was in the employment of the respondent ... He worked for a period exceeding six months ... and this was to the knowledge of the respondent who, upon the appellant ’ s inquiry on the delayed confirmation, assured the appellant B not to worry about it ... It is also apparent that even though the Contract of Employment had not been signed, persistently the behaviour and conduct of the respondent was such that it encouraged the appellant to believe that he was already employed ... c In this case, natural persons closely connected with the two defendant companies and whose mutual relations are inextricable had made the plaintiff perform extra work as manager of the hotel of the second defendant company while at the same time negotiating with him on d the remunerations for which this extra work should carry over and above what the plaintiff was already earning in term of the contract Exhibit Pl. I do not believe the plaintiff was rendering these new and extra services at the hotel on that same salary as per contract E whereas the contractual assignment was still going on as the letters Exhibit P2 and P3 have shown to us. Arrangements will most likely have been paid work on a temporary basis but, after ruling out novation, I cannot entertain the view that it was on the same and only salary as F per contract Exhibit P 1. According to the evidence, particularly the economical situation list, the plaintiff indicates that he worked at the hotel for period six months from October 1997 to 25 March 1998. His claim against the second defendant according to the same economical situation list is for payment of salary for those six months only. In his final submissions, Dr Lamwai argues that the plaintiff is entitled to salary from the second defendant company on the basis of quantum meruit. This is the principle that where someone has expressly or impliedly requested another to render him services without H specifying any remuneration, but the circumstances of the request imply that the service is to be paid for, there is implied promise to pay quantum meruit, i.e. so much as the party doing the service deserves. A claim on a quantum meruit also arises when work has 1 been done and accepted under a void contract believed to be valid.

PASINETTI ADRIANO v GI ROGEST LIMITED AND ANOTHER 121 [Osborn: A Concise Law Dictionary, (5 ed) (1964) at page 261], a In this case, there were directives requiring the plaintiff to serve in the management of the hotel belonging to the second defendant company made in writing (vide Exhibits P2 and 3) by at least one of its proprietors (Fulvio) if not by all shareholders thereof. Believing in on-going b negotiations that the services he was being instructed to carry out at the hotel would be paid for, the plaintiff worked at the hotel for a good six months and this is not disputed. With great respect to the learned counsel for the plaintiff, I fully concur with him that the c plaintiff is entitled to extra pay for his services at the hotel on the basis of quantum meruit. Decent and reasonable claim I think. It is held accordingly. It follows, therefore, that the first part of the second issue as D well is answered in the affirmative and the contract thus created was at the instance of the two defendants as such legal persons. Otherwise, it was the creation of at least Fulvio who was the signatory of the letters Exhibit P2 and 3 and who is both of director of the first E defendant company and also a co-owner of the second defendant company, persons (both natural and legal) whose relations are inextricably complex indeed. Rule 9(2)(b) I will begin with the principle claims against the F second defendant and the economical situation list is my best aid in that regard. It provides such an invaluable summary of the reliefs claimed. The plaintiff is claiming six months salary against the second defendant company. It is specifically for the period from October, g 1997 to 25 March 1998 to a total LIT 13 667 000 at the rate of 2 million LIT per month. I have already demonstrated how justified is this claim particularly on the basis of quantum meruit. For a person already earning LIT 2.7 million per month from a sister company of H the second defendant, a claim of LIT 2 million per month for management work of the second defendant ’ s hotel is in my opinion decent and reasonably fair. They had not reached an agreement for same as yet but it was for that amount that their negotiations were based on as I believed the evidence I am not persuaded by the reasons advanced

122 TANZANIA LAW REPORTS [200 1] T.L.R. A in defence for refusing to pay the amount claimed as salary on quantum meruit basis from the second defendant company. I enter judgment for the plaintiff and against the second defendant on the principle amount claimed as salary for six months service which the plaintiff B rendered as manager of the hotel. It is LIT 13 667 000 awarded here, or its equivalent in (USD) United States dollars. As against the first defendant, I am satisfied that as at the time he was unceremoniously terminated from his employment as per c contract, there were outstanding earned but unpaid salaries in the sum of LIT 5.8 million due to the plaintiff. I was convinced on the balance of probabilities by the plaintiff ’ s account on how this has come to and, as already pointed out earlier in this judgment, the D defence had nothing to offer to counter the claim in this regard. Difference of salary arrears in the sum as stated (LIT 5.8 million) claimed (out of a total of LIT 29.7million) is hereby awarded to the plaintiff. E There is a claim for LIT 41 000 000 (equivalent of USD 23 480) as per paragraphs 10 and 12(b) of the plaint. The plaintiff says this is anticipated earnings for a year (at a monthly salary of LIT 2.7million), three return air tickets and leave pay. I have no problem picking the F damages in terms of expected salary earnings for one year now that the contract Exhibit P 1 has been prematurely albeit unilaterally terminated by the defendants. Salary claimed in these terms should be LIT 32 400 000 (for example 2.7 million x 12 months). In line with what I G have stated hereinabove, a claim to that extent in the form of damages as anticipated lost earnings is understandable and fair I think. However, I have some difficulties in allocating the claim in respect of the other two items as they are listed under the two paragraphs H so as to raise the total claim to some LIT 41 100 000. Pertinently, I am referring to the claims for return air tickets and leave pay. To begin with the right to return air tickets, article 2,01 of the contract Exhibit PI provides that: I

PASINETTI ADRIANO v. GI RO GEST LIMITED AND ANOTHER 123 ... The periodical air fare is recognized, provided a further effective and A continuous stay of at least 4 months is foreseen after the return. If the ticket is not utilized, it will, however, be refunded. So the right to or recognition of periodical air fare, hence the return air tickets, is conditional upon an expected further effective and continuous B stay of at least another four months being foreseen or expected to place of work. However, note that there is foreseen no further stay at place of work following termination of the contract, recognition of the right to return air ticket does not arise. I am fortified in that view c by article 2.03 of the contract, which gives the company the right to withhold the travel expenses in anticipation to premature maturation of the contract for a number of reasons, including advanced resolution. In my considered opinion, I think it is improper to award the claim D for travel air tickets as demanded in the circumstances that obtain here. The claim as to that effect would accordingly be rejected. So much the more with regard to the claims on leave pay as the same is claimed under paragraphs 5, 10(c) and 12(b) of the contract E Exhibit P 1. 1 can read nothing in article 4 which provided for holidays on the basis of which the plaintiff could also claim entitlement to cash payment in lieu of anticipated leave one which was, in fact, not yet due and will never be now that the contract is terminated f albeit unilaterally and prematurely so. There is nothing on record to base between the claim for cash payment in lieu of anticipated but as yet unearned leave entitlement. I would accordingly reject the claim in that regard. G While I am still on this topic regarding leave generally, maybe I should also seize the opportunity to comment on another claim for leave in the sum of LIT 1 417 500 which the plaintiff alleged to be entitled allegedly as earned leave for services rendered from 3 May h 1997 upto 25 March 1998. Again, I can see no contractual basis for this claim particularly taking into account the fact that the plaintiff managed to go on leave from 25 March 1998 for services rendered hitherto. Incidentally, other than the economical situation list, I have i

12-3 TANZANIA LAW REPORTS [2001] T.L.R. A not been able to locate from the plaint anywhere where cash payment is claimed in respect of leave entitlement for services duly rendered. Accordingly, a claim for LIT 1 417 500 for leave pay is refused. However, 1 will award to the plaintiff some USD 200 being the B amount he paid from his own pockets for renewing his work permit here in Zanzibar, and another USD 764 also paid from his pocket for his return ticket to Zanzibar after his employers back-paddled to issue one without any much less adequate and or clear explanation. c It is a total of USD 964 being awarded here being renewal of work permit and return air ticket from Italy as detailed in the Economic Situation List. In the Economic Situation List, there is also a claim for LIT 7 020 000 said to be stand-by days in Italy and kin Zanzibar from 9 April 1998 to 26 June 1998. 1 am not sure if I properly grasped the gist of this claim. If I did, then I cannot trace anywhere in the pleadings (plaint) nor does the evidence sufficiently reveal its basis. The plaintiff E should at least have shown how the amount as claimed is arrived at. He has not done so in this regard. The claim as to that effect is therefore refused and accordingly dismissed. The plaintiff also prayed for interest on the decretal amount from the date of judgment to full payment. It is a reasonable claim. I award ten per cent (10% interest on the decretal amount in terms as prayed by the plaintiff (plaint paragraph 12(c) refers). G It is also usual that costs should follow the event. The same is awarded to the plaintiff in terms of paragraph 12(d) of his plaint. In the upshot therefore, this court now decreeth in summary as follows, namely: JJ

1. That the first defendant shall pay to the plaintiff a sum of Italian Lire 32 400 000 (say thirty two million for hundred thousand of Italian Lires) (or its equivalent in USD) being contractual damages for loss of expected earning (one year salary at the rate of LIT 2.7 I

PASINETTI ADRIANO v. Gl RO GEST LIMITED AND ANOTHER 125 million per month) but for the unilateral premature termination of A the contract by the first defendant (or his agents). 2. That the first defendant shall also pay to the plaintiff another Italian Lire 5 800 000 (say five million eight hundred thousand Italian Lires) g (or its equivalent in USD) being the deficit of salary arrears due but unpaid from the first defendant. 3. That the second defendant shall pay to the plaintiff Italian Lire 13 667 000 (say Italian Lire thirteen million, six hundred and sixty seven thousand) (or its equivalent in USD) being unpaid salaries due for services rendered as hotel manager of the second defendant company on the basis of quantum meruit principle. 4. That the first defendant shall pay to the plaintiff another (a) USD p 200 (say two hundred United States dollars) being the amount to plaintiff spent from his pocket in renewing his work permit in Zanzibar and (b), another USD 764 (say seven hundred and sixty four of United States dollars) being an amount the plaintiff paid from his E own pocket for buying his own return ticket to Zanzibar. 5. That the defendants shall also pay to the plaintiff ten percent (10%) interest on the decretal amount from the date of judgment to full payment in terms of the prayer at plaint paragraph 12(c) (q v). f 6. Defendants also to pay costs of the suit (plaint paragraph 12(d) to be taxed by theRegistrar. 7. Claims for Italian lires 7 020 000 said to be for stand-by days in Italy and Zanzibar (from 9 April 1998 to 26 June 1998), and also G claims for return air tickets and another Italian Lire 1 417 500 for an alleged leave pay as per Economic Situation List and paragraph 10(b) and (c) of the plaint are refused and dismissed as unsubstantiated. H

126 TANZANIA LAW REPORTS [2001] T.L.R. ALFRED TEDO v. REPUBLIC HIGH COURT OF TANZANIA ATMTWARA (Kaji, J.) CRIMINAL APPEAL No. 41 OF 1997 v (From original Criminal Case Number 15 of 1977 before the District Court at Nachingwea, J.K.A. Khaliki, Esq., PDM.) Evidence-Witness of tender age - No corroborated evidence — Whether P conviction may stand on evidence of witness of tender age without corroboration. Evidence - Witness of tender age — No voire dire whether that is an irregularity — Whether curable irregularity/defect section 381(1) Criminal Procedure. E Criminal law - Offence of defilement - Accused 64 years old - Whether accused may commit the offence. The appellant, 64 years of age, was charged with and convicted of defilement of two girls aged 4 and 6 years, contrary to section 136(1) of the Penal Code Chapter 16. He F was sentenced to 20 years imprisonment and payment of compensation of TZS.10 000 to both girls. On appeal, the appellant challenged conviction on grounds that (i) he would not have, at his age, sexual intercourse with two girls at the same time, (ii) the trial magistrate did not conduct voire dire before recording evidence of the witnesses of tender age, (iii) the trial magistrate erred in law in convicting him based on uncorroborated evidence of witnesses of tender age. Held: (i) The totality of evidence showed that there was penetration into the vagina of the victims which is enough for defilement to stand regardless of ejaculation; Although the record does not show that voire dire was conducted before recording the evidence of PW3 and PW4 who were children of tender age the trial magistrate had an opportunity to make proper assessment of the witnesses- that they possessed sufficient intelligence and knew the importance of speaking the truth under section 127 of the Evidence Act 1967.

ALFRED TEDO v. REPUBLIC: 127 Appeal dismissed A Cases referred to: (1) Furth India Co-operation Ltd v. Stanley and Son Ltd [1967] HCD 168 B (2) Kisire v. Rule [1981] T.L.R. 218. Statutory provisions referred to: (1) Criminal Procedure Act, section 381(1) c (2) Penal Code Chapter 16, section 136(1) (3) Evidence Act 1967, section 12 JUDGMENT D (Delivered 22 November 1999) Kaji, J.: The appellant Alfred Tedo who was at the material time E aged 64 years was charged with two counts of defilement of girls under the age of 14 years contrary to section 136(1) of the Penal Code Chapter 16. He denied both counts. However at the end of the trial he was found guilty as charged and was convicted accordingly, f He was sentenced to 20 years imprisonment on each count. Both sentences were ordered to run concurrently. At the trial, it was alleged by the prosecution evidence that the appellant and the two victims namely PW3 Fatuma d/o Seleman and G PW4 Christina d/o Christian were neighbours. PW3 and PW4 were residing with their parents. The appellant who had no wife was living alone. On 12 January 1997, which was a Sunday, PW3 ’ s and PW4 ’ s parents H left for different ventures leaving PW3 and PW4 playing on a°heap of sand which was just nearby. There was a house near that heap of sand. PW5 Samson s/o Eliezer was selling sardines (dagaa) on the other side of that house while PW3 and PW4 were playing on the 1 sand on the other side.

128 TANZANIA LAW REPORTS [2001JT.L.R. A At about 1:00pm while PW3 and PW4 were playing on that sand, they were approached by the appellant who invited them to his home where he promised to give them some money for buying sweets. They were interested. They went with him to his home. PW5 Samson b who had been hearing their noises when playing on the sand, suddenly stopped hearing that noise. However he felt nothing unusual about it as children keep on changing venue for better playing grounds. He thought they might have moved somewhere for a better playing c ground. He continued with his business of selling sardines. When PW3 and PW4 arrived at the appellant ’ s house, the appellant invited them inside where he said the promised money was. They entered. But just when they entered the appellant locked the door. D He grabbed PW3 and placed her on his bed and stripped her of her underwear. He pushed his private part (penis) into her private part (vagina). She felt much pain. He took her down and grabbed PW4 and placed her on the said bed. He stripped her of her underwear E and pushed his private part (penis) into her private part (vagina). She felt much pain. Then he cautioned them that they should not tell anybody about it and that if they did they would die as well as their mothers. He opened the door and let them go. He never gave them p any money. Later PW5 Samson saw PW3 Fatuma lying on the ground facing downward (kifudi fudi). She looked unhappy. He asked her as to what was wrong with her to what she said there was nothing wrong G with her. Later PW6 Anastasia d/o Eliezer came. PW5 requested her to interrogate her as to what was wrong with her as he had tried to ask her but had not given a convincing answer. PW6 found her still lying H on her stomach behind their house. She asked her as to whether she was sick to what she denied. She asked her again. This time she told her as to what the appellant had done to her and as to how it all happened. When PW3 ’ s mother PW1 Anna d/o Rashidi arrived she I was told about it. She examined her private part (vagina) and saw

ALEREDTEDOv REPUBLIC 129 some sperms. PW4 ’ s grandfather PW2 Oswald Mayaya was informed A as to what had happened to her grand-daughter PW4. He asked her to what she narrated the whole story as above. The matter was reported to the village chairman and later to the police. PW3 and PW4 were issued with PF3. They were medically examined. The PF3 for PW3 b Fatuma showed the following finding: Patient has got bruises on the vaginal wall. But no sperm was seen. (Exhibit Pl). C That of PW4 Christina showed the following finding: Vulva and vagina stained with blood, and fresh blood oozing from vagina. Vaginal wall is inflamed and there is laceration. But no spermatozoa seen. (Exhibit P2). p At the material time, PW3 Fatuma was aged 4 years and PW4 Christina 6 years. The appellant was arrested and charged with defiling them. The appellant denied and raised an alibi. He narrated as to what he had been doing on that day from morning till 1 pm when he left E his home for DW2 Mbobwe s/o Salinu at Namatula “ A ” after changing his clothes. He said he remained there talking with DW2 and a visitor from Tunduru till around 4 p.m. when he left for home. F DW2 denied to have seen the appellant at his home on that day or anywhere on that day. He said the man from Tunduru who had come to take his child had left long ago before 12 January 1997. After evaluating the evidence, the trial court was satisfied the prosecution had proved the guilt of the appellant beyond all reasonable doubt. The appellant was found guilty and was convicted and sentenced as above. He was also ordered to pay PW3 and PW4 TZS. 10 000 being compensation for the pain they suffered. He was aggrieved. Hence this appeal. H In his grounds of appeal he insisted on his innocence and blamed the trial court for convicting him on the prosecution evidence which he termed as “ weak and insufficient ” . He said, at his age he could not have sexual intercourse with two girls at the same time. He blamed

130 TANZANIA LAW REPORTS [200]]T.L.R. A the trial court for failing to call the doctor who examined PW3 and PW4 as a witness. He cited the case of South India Co-operation Ltd v. Stanley and Son Ltd (1) In reply the learned state attorney Mr Masaju who represented B the Republic at the hearing of this appeal supported the conviction and sentence on the ground that the prosecution evidence established the guilt of the appellant beyond all reasonable doubt. He said the evidence of PW3 and PW4 who were of tender years was corroborated c by PW5, PW6 and the PF.3. He said there was no need of calling the doctor and that if the appellant felt there was a need, then he would have told the trial court so and the doctor would have been called. The learned state attorney went on replying that PW3 and D PW4 knew the appellant very well and the event took place during daytime. The learned state attorney conceded that there was no voire dire test conducted by the trial magistrate before recording the testimony of PW3 and PW4. However he was of the view that that failure did E not cause failure of justice and is curable as per section 381(1) Criminal Procedure Act 1985 and the case oiKisire v. R. (2). On whether the appellant could have sexual intercourse with two girls at his age, the learned state attorney replied that some old men F use local herbs to stimulate their erection, and that there is no wonder for an old man of the appellant ’ s age to have sexual intercourse with two girls simultaneously even if by mere penetration without necessarily ejaculating. G I have carefully considered the evidence on the record, the appellant ’ s grounds of appeal, the learned state attorney ’ s reply together with the overall circumstances surrounding this case. There is no dispute that the appellant and the prosecution witnesses are neighbours and H know each other very well. The defilement is alleged to have been committed during daytime at about 1 :00pm. Therefore, under those conditions the question of misidentification does not arise. There is nothing indicating or suggesting that any of the prosecution witnesses I

ALFRED TEDO v. REPUBLIC 131 had any grudge with the appellant. Therefore there was no danger of a a probable concoction or frame up. The PF3, Exhibits Pl and P2 showed the injuries PW3 and PW4 sustained in their private parts (vagina). No spermatozoa were seen. PW3 and PW4 said they felt much pain in their private parts (vagina) B when the appellant inserted his private part (penis) there. And that he rubbed their private parts with a piece of clothe. Therefore if the appellant had ejaculated to one or both of them, he probably rubbed off his sperms with the said piece of cloth. Also since PW3 and c PW4 were medically examined on the following morning, their parents had probably washed them the previous right. But as properly stated by the learned trial Principal District Magistrate in his judgment, in cases of this nature, ejaculation is not necessary. What is necessary D is penetration however small it may be. The totality of the prosecution evidence shows clearly that there was penetration by the appellant ’ s penis. Therefore it is immaterial whether the appellant ejaculated or not, and the absence of spermatozoa in PW3 ’ s and PW4 ’ s private e part (vigina) did not vitiate the merits of this case. The appellant raised a defence of alibi that at the material time he was at DW2 Mbobwe ’ s home till 4:00pm. DW2 denied this. His alibi did not raise any doubt, leave alone a reasonable one. It was f properly rejected by the trial court. PW3 and PW4 did not report to anybody until when asked. They gave the reason why it was so. They said the appellant had warned them not to report the matter to anybody, and that if they did so they G would have died together with their mothers. They were scared and decided to keep quiet. These were young girls, and that lawful warning scared them stiff. That explanation cannot be said to be unreasonable. It was reasonable. Therefore the fact that they did not report to anybody H immediately until later when they were asked, does not mean they were not defiled by the appellant. They simply did not report due to fear created by the appellant himself. I

132 TANZANIA LAW REPORTS [2001]TL.R. A In ground number 4, the appellant complained of the discrepancy between PW3 and PW4 on whether there was a mattress on his bed. PW3 had first said the bed had no mat or mattress. But later she said she saw a spongy mattress but she could not remember what B type it was. PW4 said the bed was covered with a mat (tapwata la tefu). However she said she had no time to investigate everything especially that the room had dim light. I am satisfied this discrepancy is minor and did not vitiate the merits of the case. PW3 and PW4 c were in a terrified state, and had no time to concentrate on whether the bed was covered with a mattress or a mat. Lastly, but the most important of all, is whether it was proper to convict the appellant on uncorroborated evidence of PW3 and PW4. D PW3 and PW4 were children of tender years. They gave unsworn testimonies. The procedure of recording testimonies of witnesses who are children of tender years, and the weight of their testimonies, is governed E by section 127 of the Evidence Act 1967. Before recording the evidence of such a witness, the trial magistrate must conduct a voire dire test to decided whether that child knows the meaning of an oath and is possessed of sufficient intelligence to justify the reception of F his or her evidence, and understands the duty of speaking the truth. According to the record, there is nowhere where it was recorded how the voire dire test (if any) was conducted. But the record shows that PW3 and PW4 did not understand the nature of an oath but both G of them understood the importance of speaking the truth and were possessed with sufficient intelligence and were able to give rational answers to the questions put to them. They gave unsworn testimonies. I am satisfied under those circumstances the learned trial magistrate H had an opportunity to make a proper assessment and was satisfied they were possessed with sufficient intelligence and knew the importance of speaking the truth. Under section 127(3) of the Evidence Act 1967, a court may 1 convict an accused person on uncorroborated evidence, after warning

ALFRED TEDO v. REPUBLIC 133 itself of the danger of acting on such uncorroborated evidence, and a after fully being satisfied that the child or children are telling nothing but the truth. In the present case the learned trial magistrate did not record in his judgment about that warning. But although he did not record so in black and white, yet going through his judgment very b carefully, it is apparent that he took all the necessary precautions and was satisfied PW3 and PW4 were telling nothing but the truth. In view of this it is my view that the omission of recording the warning did not cause failure of justice nor did it prejudice the appellant. c The appellant ’ s complaint that he is too old to defile two girls at the same time has no merit, because defilement requires only penetration and not necessarily ejaculation. The appellant did not say he is impotent. Failure to call the doctor who examined PW3 and PW4 also did D not vitiate the merits of this case, because the appellant did not tell the trial court that he wanted that doctor to be called as a witness so that he could cross examine him on any important fact. The sentences imposed on the appellant were minimum at that E time. The compensation of TZS. 10 000- to PW3 and PW4 is not excessive in view of the pains PW3 and PW4 sustained as shown in the PF3, Exhibits Pl and P2. This appeal was lodged without sufficient grounds. It is hereby dismissed in its entirely. F