The Court of Appeal has directed the High Court’s Commercial Division to pronounce judgment on the 15bn/- demand in rotten rice case, which has remained undelivered for 15 years now.
Justices Engela Kileo, Salum Massati and Batuel Mmilla reached such a decision last week, after revising proceedings given by High Court Judge Amir Mruma, who had refused, as a successor judge, to deliver the judgment, on claims that he had an option of doing so or otherwise.
Records show that the judgment in the case was written, dated and signed by trial Judge Nathalia Kimaro in 2005 before being appointed justice to the Court of Appeal.
“We find there is good cause to revise the proceedings of (Judge) Mruma in so far as he purported to have discretion to pronounce or not to pronounce his predecessor’s judgment.
We accordingly quash and set aside those proceedings,” the justices ruled. They went on, “We hereby further direct that the records of the High Court be remitted to the trial court with directions that the judgment written by (Judge) Kimaro, as she then was, be pronounced by a successor judge or other judicial officer of competent jurisdiction.”
The High Court judge had relied under Rule 2 Order XX of the Civil Procedure Code to decline to deliver the judgment in question. Such provision reads, “A judge or magistrate may pronounce a judgment written but not pronounced by his predecessor.”
But in their ruling, the justices of the appeals court since a duty was cast on the judge to pronounce judgment in the interest of litigant public and in the main to save judicial time, the word ‘may’ used in the Rule has a compulsory force and the succeeding judge was under obligation to deliver the judgment.
The parties to the case are VIP Engineering and Marketing Limited, as plaintiff, who is demanding payment of over 15bn/- from two companies, Societe Generale De Survellance (S.A) and SGS (Tanzania) Limited, as defendants.
Such refusal by the High Court judge had attracted a heated debate from the parties during hearing of the case before the appeals court, as it had made the litigation the longest in the High Court’s Commercial Division.
Advocate Michael Ngalo, for VIP Engineering Company, had told the panel that instead of reading the judgment, as required by the law, Judge Mruma, who was assigned as successor judge proceeded to entertain extraneous matters, including some applications filed by the two foreign companies.
Mr Ngalo, assisted by Counsel Didace Respicius, had argued that the High Court failed to discharge its duty considering the fact that pronouncement of judgment, whether the parties like or not, was mandatory.
He said that when the case is heard, the judgment must be delivered to end the litigation. On the other hand, advocate Mustafa Chando, for the respondents, had asked the panel to reject the submissions and prayers by advocates for VIP Engineering Company, on grounds that there was no legal judgment, which is to be delivered by the Commercial Division of the High Court.
He submitted that the judgment, having been signed by the trial judge, was delivered by the registrar and was later declared invalid by the Court of Appeal because the registrar had no such powers. As from the date of decision of the Court of Appeal, he alleged, there was no judgment in the case.
In January 1998, VIP ordered for purchase of 3,000 metric tonnes of rice (Pakistan long rice, 15-20 per cent broken) from M/S Orco International (S) Pte Lilited of Singapore under a Warehousing Management and Sales Contracts at a price of 267.50 US dollars per metric tonne thus making the total 802,500 US dollars.
At the time the sales contract was negotiated, VIP the buyer was in Dar es Salaam, while the seller in Singapore and the rice was in possession of a third party, M/S MAHMOOD PLC of Karachi in Pakistan. The respondent companies (SGS) came into the scene because of pre-shipment inspection of the rice.
In the period 1998, SGS (S.A) was the sole appointee of Tanzania Revenue Authority (TRA) for conducting pre-shipment inspection of the imports destined to Tanzania.
This appointment was done through a Pre-shipment Inspection Contract executed between them. TRA, being Government Agency, with public duties for supervision of imports into the United Republic of Tanzania for purposes of revenue collection, opted to have SGS (S.A) as its appointee in conducting pre-shipment inspection on goods destined for Tanzania for an agreed fees arrangements.
In the transaction, VIP anticipated that, SGS (S.A) to carry out their obligation with all due care, diligence and efficiency in accordance with generally accepted techniques and inspection agency profession in compliance with the World Customs Organisation (WHO) and World Trade Organisation standards.
VIP made the required payment for the consignment and the same arrived in Dar es Salaam in March 1998 on board MV RUAHA.
It was at the time of discharge that the plaintiff noted that the rice was of poor quality and less quantity contrary to SGS (S.A) and SGS (Tanzania) reports on quality.
Upon noting the discrepancy in the quality, VIP requested the respondents to carry out post shipment inspection and survey of the rice for a dup purpose, including ascertain the difference in quality and quantity for establishing the exact extent of loss and work together to mitigate further loss.
VIP sued the respondents, demanding, among others, specific damages suffered of 656,359.08 US dollars, general damages for consequential loss of profit and economic loss occasioned by the respondent’s negligence and or fraudulent breach of the duty of care at the rate of 2,000,000 US dollars per year.
Source: Daily News
