Judge challenged to stand down in court case

FAUSTINE KAPAMA

TWO local companies have raised some grounds of objections, seeking dismissal of application by Standard Chartered Bank (Hong Kong) Limited (SCBHK), challenging the refusal by High Court Judge Dr Fauz Twaib to disqualify himself in the 6.5tri/- landmark case.

The companies, who are plaintiffs in the suit, are Independent Power Tanzania Limited (IPTL) and Pan African Power Solution Limited (PAP). In its application, Miscellaneous Civil Application No. 358 of 2016, the bank is asking the High Court to grant them leave to appeal to the Court of Appeal of Tanzania against the decision by Judge Twaib in Civil Case No. 60 of 2014, dated May 27, 2016.

Advocates for the parties, Mr Joseph Makandege for IPTL and PAP and Ms Samah Salah, for SCBHK, appeared before the High Court Judge, Ama Munisi, who is hearing the application on Monday, when the case came up for mention.

The judge has scheduled the preliminary objections on points of law, raised by IPTL and PAP, for hearing on May 26, 2017. The bank had requested Judge Twaib to disqualify himself from hearing the suit allegedly in that, they have lost confidence on him.

Having the judge turned down their request, the bank lodged a Notice of Appeal expressing their intention to appeal the decision to the Court of Appeal. Eventually, the bank also lodged the application in question, seeking leave to appeal the judge’s decision.

Convinced that the May 27, 2016 Dr Twaib’s ruling was not appealable, IPTL and PAP filed a counter affidavit and a preliminary objection, contesting the bank’s intended appeal as being untenable in that the impugned ruling is a non-appealable interlocutory decision.

It is stated that such decision does not effectually finally and conclusively determine the main suit, Civil Case No. 60 2014; and inviting the High Court to dismiss the Bank’s application.

Meanwhile, the companies have also applied to the Court of Appeal to strike out the Notice of Appeal so that the main suit could be heard and finally determined by the High Court.

In the grounds of objections, IPTL and PAP charge that the application is, among other things, improper before the court, hence legally untenable for citing wrong provisions of the law purportedly enabling the Court to adjudicate upon the same.

They state that the application is improper before the court, hence untenable for want of an enabling provision of the law entitling the bank to bring the application and empowering the court to entertain it.

Through their advocates, Mr Makandege, assisted by learned counsels Melchisedeck Lutema, Augustine Kusalika, Joseph Sungwa, Kay Felician, James Yarah and Saada Kiveya, IPTL and PAP state that the application is a nullity and misconceived as the court lacked jurisdiction to entertain it.

They stated further that the application is void because no appeal lies against the decision the bank seeks to appeal to the Court of Appeal in view of the express and mandatory provisions of section 5 (1) read together with section 5 (2) (d) of the Appellate Jurisdiction Act.

The two provisions, according to the notice of objections, are barring or prohibiting appeal against the decision issued by Judge Twaib, which is interlocutory, be it with or without leave of the court.

In rejecting the SCBHK’s request for recusal, Judge Twaib ruled that the grounds advanced for him to disqualifying from the conduct of the matter not only were unfounded but also employing delaying tactics, thus he would not allow such conduct to prevail.

Through the services of Advocate Gaspar Nyika, for two defendants, SCBHK and a Tanzanian lawyer, Martha Renju, requested the trial judge to disqualify himself from hearing the suit for payments of 3,240,000,000 US dollars, advanced several grounds, include incompetence, bias and impartiality.

Mr Nyika submitted that his clients have lost confidence in the judge for being biased because he has been involved too much in determining against the bank various interlocutory applications, in which the bank had sought the stay of the main suit pending determination of their claim in the High Court of Justice of England.

“You made six decisions, of which my clients have believed the court has already made as direction that this is going to be a case of the plaintiffs (PAP and IPTL) and my clients will not receive justice if you continue conducting the matter,” he submitted.