Former breweries boss evades jail

DAILY NEWS Reporter

THE Court of Appeal has rescued former Director General with defunct Capital Breweries Limited (CBL), Mr Girish Chande, from being arrested and committed to prison for failure to honour a decree for payments of over 527m/- to his three ex-employees.

Justices Engela Kileo, Katherine Oriyo and Ibrahim Juma ruled in favour of the local businessman, who had once worked as Chief Executive Officer with Cyrudrick Commercial Services Limited in the Russian Federation, after nullifying all proceedings of the High Court relating to the matter.

They noted irregularities, incorrectness and impropriety in the proceedings of Civil Case No. 5 of 1998, the current longest suit in the Judiciary’s history, in particular, the decision or ex-parte judgment and decree issued by then High Court Judge Luhekelo Kyando on October 18, 2000 in Dodoma.

The irregularities cited include the High Court granting the three ex-employees with CBL, Abutwalib Msuya, Jamhuri Tagalala and Evarist Muta, to serve the CBL and Mr Chande with pleadings of the case by way of publication in a newspaper and allowing them to prove the case ex-parte by way of affidavit.

“We are prompted to invoke the court’s jurisdiction; to quash and set aside all the proceedings in the civil case beginning from the order dated November 11, 1999 and to grant leave for the plaintiffs to serve the defendants by publication in (a) newspaper,” the justices declared.

They went on, “We also quash and set aside the order dated February 18, 2000 wherein Judge Kyando allowed the plaintiffs to prove their suit ex-parte by affidavits. This means that the ex-parte judgment entered and all the subsequent proceedings, orders and warrants are similarly quashed and set aside.”

The justices ordered that the civil case should expeditiously continue before another judge in the High Court at Dodoma and the trial judge assigned the matter should begin by prescribing the time within which the defendants shall file their written statements of defence to the amended plaint.

They ruled that the failure by the trial judge to comply with conditions under the law before ordering substituted service amounted to a material irregularity which denied the defendants their rights to be heard before an ex-parte judgment was entered against them and subsequent execution proceedings. According to the justices, it was also not clear which provisions of the law the trial court invoked to readily allow the plaintiffs to prove their entire claims in the suit by affidavits.

They acknowledged indeed that there are scattered pockets of provisions in the Civil Procedure Code (CPC) which permit use of affidavits, but were quick to point out that under Order XI, XII and XIX of the CPC where affidavits are mentioned, their use are restricted to specified situations.

For instance, they noted, Order XI is devoted to discovery and inspection during pre-trial stage and use of affidavit here is restricted to answering interrogatories, in specifying which documents a party objects to produce and on inspection of documents referred in the pleadings.

Even Order XIX, which is wholly devoted to affidavits, use is restricted to proof of a particular fact and upon showing sufficient reason. Further, the court is left with the power to dispense with affidavits and direct attendance of witnesses. Referring to another case, the justices concluded, “The court observed that while it was fair for the plaintiff’s counsel to proceed ex-parte as he was entitled under Order IX Rule 6 (1)(a)(i) of the CPC, the Court was not prepared to condone the subsequent order of the High Court on proof by affidavit.”