LS 103 Outlines-April 2018

WRITTEN SUBMISSIONS: SOME INSIGHTS AND LESSONS

FROM COURT DECISIONS
Note: in some of these cases, submissions were made orally but the lessons they offer apply
equally to written submissions.

1. Presidential Parastal Sector Reform Commission v. AZANIA Bancorp Ltd

[2006] T.L.R. 1; [2005] T.L.R 442

Parties filed written submissions without calling any witnesses/evidence to prove their
case.
HELD: In the absence of evidence…disputed matters cannot be determined on the
basis of written submissions by advocates. (Referring to Board of Internal Trade v.
M/S G.B.L. & Associates Ltd., Court of Appeal of Tanzania (DSM), Civil Appeal
No. 4 of 1983 (unreported): “…In the absence of evidence, disputed matters of mixed
law and fact cannot be resolved by considering written submissions of learned
advocates only”.

2. Sangijo Rice Millers Co. Ltd. V. S.M. Holdings Ltd. [2006] T.L.R. 89
(on counsel’s questioning admissibility of exhibits during final submission and not at
the tendering of evidence) [at pp.116-117] “DW 3, the person whose signature
appears in the reports tendered these documents as Exh D 2 collectively. Mr.
Kwikima did not object, but he has thought fit to take it up in his final submission. At
this stage the learned counsel is estopped from raising such an objection.”

3. TUICO v. Mbeya Cement Co. Ltd & N.I.C (T) Ltd. [2005] T.L.R. 41
HELD: (Massati, J. at 48) “…It is now well settled that a submission is a summary of
arguments. It is not evidence and cannot be used to introduce evidence. In principle,
all annextures, except extracts of judicial decisions or textbooks, have been regarded
as evidence of facts and, where there are such annextures to written submissions, they
should be expunged from the submission and totally disregarded. Their annexure to
submissions has been condemned by several decisions of this court. (See VETA v.
Ghana Building Contractors (unreported) and M. Rutakyamirwa v. Peter Joseph
[1990] T.L.R. 49).

Those decisions have held that when there are such annextures, they have to be
expunged from the submission and totally disregarded. I will do the same in respect to
the annexures attached to Mr. Nyangarika’s written submissions. All the documents
annexed to his submissions are accordingly expunged; and shall be ignored.”

4. N.B.C. Ltd. v. Somo Contractors Ltd. [2004] T.L.R. 430

(at p. 438): “…Mr Mtafya submitted further that Mr Rutashoborwa raised matters
which were not pleaded. He is right. Mr Rutashoborwa submitted on matters not

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pleaded, nor evidence led. The amended Written Statement of Defence is completely
silent on the property which was mortgaged. Final submissions must be confined to
the pleadings and evidence. The case of Vidyrithi v. Ram Rakha is a good
illustration on this point. The Court of Appeal of East Africa held that: It is now
established that the evidence and arguments in legal proceedings should be confined
to the pleadings.

5. G.K. Ishengoma t/a Tanzania Insurance Agency v. N.I.C Ltd. [2003] T.L.R. 380
(at p. 389). “…It may not be out of place to observe that we did not have the benefit
of the submissions of the learned advocates on the authorities discussed in this
judgment simply because they did not refer us to any authority”. [Note: that’s a Court
of Appeal judgment!]

6. Bulk Oil Tanzania Ltd. v. Njake Enterprises Oil Transport Ltd. & 2 Others
[2003] T.L.R. 81
“In this case the applicant filed or produced no notice served on the third respondent,
Moshi Municipal Council in compliance with section 97 of Act Number 8 of 1982.
Mr Mrema and Mr Ng’maryo stated nothing on compliance with section 97 of Act
Number 8 of 1982 in their submission, which means section 97 was not complied
with before filing the suit and the application therefrom.

7. Sultan Seif Nassor v. R [2003] T.L.R. 231

(at p. 235). “…Finally the learned advocate submitted that the order giving the goods
to PW 6 while the process of appeal had not been exhausted was wrong in law. Ms
Malecela did not make any submission on that.

8. Iluminatus Mkoka v. R [2003] T.L.R. 245

(at 250): “…But even assuming that this pointed to the appellant’s guilt, the point is
that this statement is nowhere to be found in PW 2’s evidence in court. It is to be
found in the final submission by the prosecuting attorney who attributed it to PW 2
but, as already said, there is nothing like it in PW 2’s evidence in court. With due
respect to the learned trial judge, she wrongly acted on the statement to the appellant’s
detriment without being satisfied that the statement did, in fact, form part of the
recorded evidence of PW 2.”

9. Tanzania Breweries Ltd. v. Greenway Co. Ltd. [2003] T.L.R. 267

(at p. 269): “…when the matter was called on for hearing we heard well researched
and useful submissions from counsel for both parties. At the end of the submissions
and at the prompting of the court, both counsel conceded, and we think correctly so,
that the mandatory provisions of Rule 6 of the Arbitration Rules 1957, were not
complied with. The petition in the High Court was incompetent.
[Lesson: when facts and law are not in your favour, concede so!]

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10. Caritas Kigoma v. K.G. Dewsi Ltd. [2003] T.L.R. 420

(at 423): With all respect to Mr Boaz, his submission is not supported by any evidence
on record.

11. Peter Ng’homango v. A.G. [2003] T.L.R. 456

(at p. 459): Mr Shio, learned Principal State Attorney appeared for the respondent, the
Attorney General. With respect, he did not have much to say in response to the
appellant’s submission on this point. Even then, he seemed to prevaricate in his
submission. At some stage, he maintained that the matter was not appealable without
leave…At a later stage however, Mr Shio apparently changed his position. He
conceded that the suit having been struck out, it was finally and conclusively
determined. (at 460) “…In response to these submissions, Mr Shio, learned Principal
State Attorney for the Attorney General at first resisted the appeal. However, upon
reflection, he conceded that the suit was wrongly struck out”.

12. Tanzania Venture Capital Fund Ltd. v. Igonga Farm Ltd. [2002] T.L.R. 304
• Submissions filed late contrary to court order but court held that plaintiff was
not prejudiced
• No provision in the CPC governing Written Submissions

(at p. 307): “…I am not aware of any provision in the Civil Procedure Code, 1966
governing the presentation of written submissions to the court. It is a practice of
the court-a very good practice-if I may be permitted to say so and which should be
encouraged and supported by both the Bench and the Bar”.

13. Mashado Game Fishing Lodge Ltd. v. TANAPA [2002] T.L.R. 319
(at p. 322): “…learned counsel, Mr D’Souza, has not made any comment on the
aspects of what constitutes a cause of action as stated by Professor Mwaikusa; what
Professor Mwaikusa has stated is the law as I understand it.
(at p. 325): “…It will be noted that I have not referred to some of the arguments in the
submissions, particularly, those of the counsel for the plaintiff. This is because greater
portion of those arguments relate to whether or not the leases can be reassigned, a
matter which is not determinable at this stage”.
[Note: The submissions and the ruling were on a Preliminary Objection that the
plaintiff did not have a cause of action]

14. Mariam Ndunguru v. Kamoga Bukoli & Others [2002] T.L.R 417
(at p. 420): In his submissions in reply Mr Mkatte does not seem to tackle head on the
contention that the judgment in Civil Case Number 43 of 1991 bind the respondents.
What he seems to gun for is compensation for unexhausted improvements which the
respondents may have made on the suit land.

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15. CRDB Bank Ltd. v. NBC Holding Corporation Ltd. & Others [2002] T.L.R. 422
Failure by a party’s advocate to file Written Submissions due to negligence.

16. Fahari Bottlers v. Registrar of Companies & Others [2001] T.L.R. 6

(at p. 27): “…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 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.

17. Pasinetti Adriano v. GIRO Gest Ltd. & Another [2001] T.L.R. 89
(at p. 110): “…I note with disappointment that at the end of his final submissions,
defending counsel raised a new issue of non-registration of the contact(sic!) executed
in Italy…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. (see the court’s decision at p. 111)

18. Regional Services Ltd. v. Secretary-Central Tender Board & 3 Others [2001]
T.L.R. 184
(at p. 192): “…The respondents say nothing in reply to this submission, and in my
opinion, it is a submission I must sustain”.

19. Lamshore Ltd. & J.S. Kinyanjui v. K.U.D.K [2001] T.L.R. 237
(at p. 241): “…In the final submissions, however, the defendant’s attorney has
categorically stated that after examining the evidence, the defendant will only address
the first and the (original) third (now re-numbered fourth) issue, finding that the
second issue and, by inference, the renumbered third issue (supra) as well…to be
inconsequential. By the same force of logic, this judgment is written with the court
addressing its mind only to the first and the original third…”

20. J.S. Mutungi v. UDSM [2001] T.L.R. 261

(at 267H and 278G): “…In any case, though included in the submission it does not
form part of the prayers as per the chamber summons”.
(Also in the same case, see the need to cite conflicting decisions including ones not I
your favour)

21. Tanzania Distilleries Ltd. v. Vitamin Foods (1989) Ltd. [2000] T.L.R. 15
Evidence should not be taken after final submissions.

22. Fahari Bottlers Ltd. & Another v. Registrar of Companies & Another [2000]
T.L.R. 102
(Courts generally have a positive view on Counsel Submissions)

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(at 117E): “Furthermore, the learned judge was ambiguous about the identity of the
management who were to remain in charge of the operations. We think that had the
learned judge heard submissions from counsel, instead of going it alone, so to speak,
he would most likely made a sensible order and there would have been no need to use
emotive words on his part”.
(Lesson for judges/magistrates: don’t decide an issue alone when you have an
opportunity to hear submissions from counsel)

23. Blass Michael v. Saidi Selemani [2000] T.L.R. 260

(at 263): “ In a sense, the submission made by learned counsel are a repetition of what
was earlier stated before the District Court. It will therefore serve no useful purpose in
repeating everything that was said thereat”.
(If submissions made in trial court or first appellate court are available on record, it
may not be worthwhile repeating them, probably just adopt them by cross reference)

24. Bamprass Star Service Station Ltd. v. Mrs Fatuma Mwale [2000] T.L.R. 390
(Persuasion…Mr D’Souza prefaced his well researched submission with this
assertion: “The case looks simple but it is not”. (see contrary view from counsel for
respondent)-also at p. 405E-I and 406-counsel raising a matter not put up in evidence.
(Counsel raising theories for the first time in appeal); at p.417 H: “Mr Ojare has relied
on 3 English cases to prop up his submission in support of the award. All these cases
do not help him at all”.

25. Wilbroad Peter Slaa v. Arusha Kalwa & 5 Others [1999] T.L.R. 85
(at 93): “…Neither Mr Musei nor Mr Maira expressed a view contrary to that of Mrs
Macha…”

26. CALICO Textile v. Zenon Investment [1999] T.L.R. 100

(at 119): “…it is no wonder that the respondents did not annex to their Written
Submissions what one would have thought a crucial decision for their argument; it is
because the same case defeats their argument”.

27. Tanzania Transcontinental v. Design Partnership Ltd. [1999] T.L.R. 258

(at 266G): “With due respect to the learned counsel, however, we could find no basis
for this submission”.

28. African Trophy Hunting v. A.G. & Others [1999] T.L.R. 407
(at 413A): “With great respect, we find this a novel and attractive submission which,
we are however, unable to accept. Not only is it unconvincing but it is also absurd as
well”.

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