SILVERDALE TANZANAI LTD

BOX 53
MOSHI
31st March 2006

Hon. Dr. Mary Nagu (MP),

Minister for Justice and Constitutional Affairs
DAR ES SALAAM

PRIVATE AND CONFIDENTIAL

Dear Mama Nagu,
We outline the culmination of the most appalling corruption yet again in the judicial
system in Moshi. This corruption has now crossed international boundaries and we
cannot be expected neither do we intend to participate with what can only be described as
a judicial pantomime any further.
Mama Nagu neither of us are prepared to go in to court again in respect of the defamation
proceedings brought by Mengi. Our reasons are as follows. I will be as brief as possible
and will copy this letter to Mr, Lyimo, the assistant attorney General knowing that he will
be able to assist you with the legal points we make here.
DEFAMATION PROCEEDINGS
A.

NO CAUSE OF ACTION DISCLOSED IN THE PLAINT

Tanzania Law Reports [1992]. 29TH September 1992, Arusha.

J.B. Shirima & Others Bus Servise v Humphrey Meena t/a Comfort Bus Service.
High Court of Tanzania (Mushi. J.)
WHERE A PALINT DSICLOSES NO CAUSE OF ACTION IT SHOULD BE
STRUCK OUT.

It is clear law that evidence contained in affidavits filed in the course of legal proceedings
are protected by the common law doctrine of absolute privilege and can never be
actionable. Further, words directed at the plaintiff personally can never amount to
defamation (whilst they may or may not amount to abuse) and there is no common law,
either in Tanzania or England that holds private electronic communications addressed to
specific recipients (and thus not posted on a public web-site or other public electronic
forum) to be defamatory.
It is of concern to us, that under these circumstances, this plaint has been filed by
prominent lawyers in Dar es Salaam (who we understand are Reginald Mengis lawyers)
and has not been struck out suo motu by the court. The plaint clearly seeks to mislead the
court on material facts amounting to an abuse of due process. An advocates primary duty
is to the court and this duty has not been met in the filing of this plaint.
On submission of the plaint to the court for filing, we were owed a duty of care in that:The court has an inherent (and mandatory obligation) power to strike out pleadings which are
manifestly an abuse of due process of law. Such a power is not confined to cases where the abuse
is manifest in the pleadings but may be exercised where the facts are proved by affidavit which
show the abuse. Mulla. Page 1819
The question is whether the real cause of action has been set out in the plaint or something purely
illusionary has been stated... If on a meaningful-not formal- reading of the plaint it is manifestly
found to be vexatious and meritless, in the sense of not disclosing a right to sue (emphasis added),
the judge should exercise his power under Order V1 Rule 16 of the Civil Procedure Code (or
any other enabling provision of law) and strike out the proceedings.

It is manifestly clear, that on a meaningful reading of this plaint it discloses no right to

sue. As such, the court had an imperative duty to strike out the pleadings under Order 6,
rule 16 of the Civil Procedure Code given it contained scandalous material. Further,
under Order 7, rule 11 (a) of the Civil procedure Code, the court not only had the power
but an imperative duty to strike out a plaint suo motu before admitting it given, that on a
meaningful reading of it, the plaint discloses no cause of action. Under Order 7, it is the
duty of the court to decide the question before issuing the summons ( Mulla, V2 Page
1923 and 1925. (Santi Ranjan v Dasuram Miramal AIR 1957 Assam 49)) if not, the plaint
should be nipped in the bud at the first hearing and struck out with reasons.
The court can reject a plaint suo motu before admitting the plaint. The matter is purely between
the court and the plaintiff and hence it need not wait till the defendant files his appearance and
points out the defect. Bakshi Gulam v Debt Recovery Appellant Tribunal (1998) 2 SCC 70.
Mulla, Page 1924, para 2 & 3 and it is the duty of the court to examine a plaint before issuing
summonses to ascertain whether any cause of action has been pleaded.and to determine
whether the plaint should be rejected or returned for amendments. Mulla V2 Page 1922/3. Ram
Chandra v Gour AIR 1962 Assam 137.
.at any stage of the suit would also include stage prior to the filing of a written statement of
defence.. Mulla V2. Page 1913.
Supported further by Mulla V2. Page 1922 and PR Sukeshwala v Dr Devadatta VS Kerkar AIR
1995 Bom 227 where it was held, that the view of the Supreme Court, is that it is the duty of the

court to examine the plaint and need not wait until the defendant files a written statement of
defense before making an application to reject the plaint. It was further held that if the court has
power to reject the plaint suo motu before admitting the plaint then it certainly does have power to
reject the plaint after it has been filed at any stage and, before the defendants have filed their
written statements of defence. It is open to the court to exercise its powers under this rule at any
stage. Samar Sing v Kedar Nath AIR 1987 SC 1926, (1990) 3 JT (SC) 68. Mulla V2. Page 1922.

The question of timing is therefore important in that we had a right to make these
applications before filing a written statement of defence. It is open to the court to exercise
its power to strike out pleadings and the plaint it self, at any stage of the proceedings
either suo motu or, on the application of the defendants (or any other party in relation to
pleadings considered scandalous). It is clear law that, at any stage of the proceedings
means just that. This above all, is sensible law given that there is a duty to mitigate costs
and the time of the court in any plaint. The cost involved in filing three defences before
the issue of joinder and counterclaims would be enormous and unnecessary given all
three defendants in this plaint have been wrongfully joined and misjoined. As outlined
below the denial of our rights have put us to disadvantage in the following manner:B.

THE ISSUE OF JOINDER OF THE PARTIES

MISJOINDER OF THE PARTIES

These proceedings inappropriately join three defendants. Myself, my wife and Baba
Mtenga. This is bad law and is bad for multifairness in that:(a)

Any right to relief in respect of, or arising out of, the same act or transaction or series of
acts or transactions is alleged to exist against such persons whether jointly or severally or
in the alternative:
and

(b)

If separate suits were brought against such person, any common question of law or fact
would arise. Mulla V2, page 1494

It is essential that there must be some link or nexus so that the condition as to the
existence of the same act or transaction or, some series of acts or transactions may be
satisfied. Nagendra Bala v Provash Chandra AIR 1953 Cal 185 (Mulla V2, Page
1497).
Mengis claims in this plaint are mutually exclusive of each other i.e. each of us is
answerable for a separate mutually exclusive act. No common link or nexus where the
existence of the same act or transaction or some series of acts or transactions is capable of
being satisfied as is required by law is shown in the plaint. There can be no clearer law
than the following:-Sant Sing v Deo Ram 76 Punj LR 442, AIR 1974 P&H 276. Here, a number of persons were
alleged to have trespassed on the property of the plaintiff. Each of them was held to be answerable
for his own act of trespass only and not for the trespass of each of the others. The case stated that
the right to relief, did not arise out of the same transaction and if the defendants had been joined

this would have been bad for multifairness. Mulla, V2, pages 1499. Corp of Calcutta v
Radhakrishma Dev AIR 1952, Cal 222. Mulla, V2, page 1497.

c.

WRONGFUL JOINDER OF THE PARTIES

This plaint is wrongful under common law having joined all three of the defendants in a
plaint which does not disclose a cause of action. As such, the court has no option other
than to strike out the plaint.
Under Order 1, r 10 (2) of the Civil Procedure Code i.e. the court may at any stage of the
proceedings, either upon or without the application of either party and on such terms as may
appear to the court to be just, order that that the name of any party improperly joined be struck
out
and
The court had an imperative duty to strike out pleadings under Order 6, rule 16 of the Civil
Procedure Code containing scandalous material (i.e. no right to sue). Further, under Order 7, rule
11 (a) of the Civil procedure Code, the court not only had the power but an imperative duty to
strike out a plaint suo motu before admitting it given, that on a meaningful reading of it, the plaint
discloses no cause of action. Under Order 7, it is the duty of the court to decide the question before
issuing the summons ( Mulla, V2 Page 1923 and 1925. (Santi Ranjan v Dasuram Miramal AIR
1957 Assam 49)) if not, the plaint should be nipped in the bud at the first hearing and struck out
with reasons.

All three of us have been wrongfully joined and the plaint should be struck out given it
does not disclose a cause of action i.e. Tanzania Law Reports [1992]. 29/9/1992, Arusha.
J.B. Shirima & Others Bus Service v Humphrey Meena t/a Comfort Bus Service.
High Court of Tanzania (Mushi. J.)
D.

EXTENSION OF TIME LIMITS FOR FILING A DEFENCE.

Under Order 8 rule 1 (2) of the Civil Procedure Code, a defendant has the right to
seek an extension to the time limits for filling a defence.

The deadline for the filing of a defence is 21 days after the plaint has been served. Our
deadline was the 28th February. I was in the UK until the 20 th of February when I
returned to Tanzania. On the 24th February, I prepared a Chamber Application supported
by affidavit making application for the following:a.

That the plaint should be struck out as disclosing no cause of action.

b.

That the defendants had been wrongfully joined

c.

That the defendants had been misjoined

d.

That an extension in time be granted for the service of the three defences.

The court clerk refused to file the application stating that the registrar had told him that it
was not the appropriate time to make it. He said that the points should be raised by way
of Preliminary Objections on Points of law.
However, the court kept the Application and did not give a response to it until the
morning of the 28th February (the deadline for the service our defences). I was not in
Moshi at the time and had to immediately to return to Moshi from Arusha. The registrar,
instructed me to file three individual defences simply denying the allegations. I knew that
this was incorrect leaving us exposed to challenge under the Civil Procedure Code. I
could not argue with the registrar and in any event, he refused to discuss the matter with
me, he sent a message to me via Abel Ngoja.
Because of the courts refusal to file the Chamber Application our position has become
impossible as follows:1.

We were wrongly forced into filing an inappropriate defence which Mengi has
now challenged (attached for your attention) causing all of us further time
aggravation, expense and distress. I enclose Mengis response to our defence for
your attention.
We had a right to submit a Chamber Application asking the court to deal with the
issue of striking out and the issue of joinder at any stage of the proceedings and
that includes, before the filing of a written statement of defence.
.at any stage of the suit would also include stage prior to the filing of a written statement
of defence.. Mulla V2. Page 1913.
Supported further by Mulla V2. Page 1922 and PR Sukeshwala v Dr Devadatta VS Kerkar
AIR 1995 Bom 227 it is good law, that if the court has power to reject the plaint suo motu before
admitting the plaint then it certainly does have power to reject the plaint after it has been filed at
any stage and, before the defendants have filed their written statements of defence. It is open to
the court to exercise its powers under this rule at any stage. Samar Sing v Kedar Nath AIR 1987
SC 1926, (1990) 3 JT (SC) 68. Mulla V2. Page 1922.

Further:A plaint may be rejected under order 7 even though it has been numbered and registered as a suit.
Kishore v Sabdal (1890) 12 ALL 553. Mulla V2. Page 1023

Importantly, the filing of Mengis reply to our defences is a further illustration of

the blatant corruption and obstruction being deliberately vented against us by the
court, Mengi and his lawyers in the following manner:On the 1st March, I was at the high court and was asked by a clerk if we had been
served with Mengis reply to our written statement of defence. I stated no we had
not been served. I saw the clerk with the reply to our defence in his hand and yet
he did not serve us with it. Yesterday, Mengi appeared in court with a second
reply to our defence (the one attached) which he told the judge his advocates had
just given him. This second defence is dated the 28th March and is clearly out of
5

time. However, Mengi was allowed to file this second defence without leave of
the court, which he was clearly required to obtain given it is dated the 28th March.
It is transparent, that the original reply to our defences, was not served upon us
and was deliberately extracted from the court file and replaced with the one dated
yesterday. There is not even any attempt to conceal the corruption of this action
and the abuse of due process that Mengi is engaging in here with the High Court
and his lawyers.
2.

We have been denied our right to raise the issue of misjoinder and wrongful
joinder at any stage of the proceedings.

3.

We have been denied our right to gain an extension of the time limits for filing
our defences as we are entitled to under the Civil Procedure Code.

The proceedings so far have been conducted in clear abuse of due process of law,
instigated by the corruption, racism and biased of the judiciary, Mengi had his lawyers
calculated to defeat our position vis--vis this suit. As a result, we have no choice, but to
distance ourselves from these proceedings. If the courts cannot, for whatever reason,
conduct its proceedings within the ambit of the Civil Procedure Code then how can we be
expected to engage in the judicial process?
As instructed by the registrar, I had no alternative other than to file, after the filing of our
defences, a Notice of preliminary Objections on Points of law. Having been refused filing
before the defence and told to file the points under preliminary Objection, I presented the
Notice for filing on the 7th March and once again, the court refused to file the notice. This
time I was told by the clerk that the registrar had stated that the matters should have been
raised in our defences. We returned to the court on four separate occasions in order to file
this notice and on each occasion, the court refused to file the document on varying
excuses as follows:a.

That it was inappropriate to file the notice as the issue raised should have
been included in the defence.

b.

That the court file was not available.

c.

That the file was with the judge.

d.

That we should raise the objections verbally at the first hearing.

At the first hearing of this matter on the 15th march, no applications were allowed Hon.
Herbert stating that the registrar was absent from the court. Once again, therefore, our
rights under the Civil Procedure Code were arbitrarily and without good cause or legal
authority, ignored. On the second hearing yesterday, Mengis lawyers did not attend and
once again, we were refused the right to make any applications. However, Mengi was

allowed to file a second reply to our defence outside of the time limits allowed as
outlined above.
It is clear, that the Judge at the hearing this week was completely unaware, that we had
attempted to file these documents and had been refused. He was obviously unhappy by
the events stating the registrar was not at liberty to refuse applications. However, that
does not help us. The fact is that every single application we ask to file at the court is
refused time after time under one legally unsustainable excuse after another.
At the hearing this week, Mengi appeared without his advocates. He stated that he is
represented by two advocates from Dar es Salaam both of whom had failed to catch their
flight to Moshi from Dar es Salaam on Tuesday night. This was clearly, and dishonest and
calculated excuse with the intention of prolonging the proceedings. However, his excuse
was accepted and the case was adjourned to the 10 th July almost four months from now.
Once again, we have been prejudiced by the conduct of Mengi and now have the pressure
of this case over our heads for a further four months to a date on which I am due to be in
the UK.
THE LAND TRIBUNAL CLAIM.
I end with submissions on the Land Tribunal Claim brought in abuse of due process
against Silverdale Tanzania. The substance of this litigation is attached in the
documentation enclosed for the attention of the assistant Attorney General. It is
manifestly clear on the pleadings that Mengi and his advocate Sandi deliberately and
fraudulently sought to mislead the Tribunal as to the value of the claim. This was stated to
be TSH 50,000,000 being the limit of the Tribunals Jurisdiction. In contradistinction, in
the same pleadings, the cost of the assignment is stated to be $112,000. The relief claimed
by Mengi was that we be evicted from the farm. The High Court judge that dismissed this
claim was of the same view. However, she dismissed the case on the basis that we carry
our own costs. This is wholly unacceptable. Not only have we been forced to accept the
consequences of this appalling corruption for over a year, we have also been made to pay
for it.
It cannot be clearer, that the land Tribunal was bribed to accept jurisdiction in the face of
clear law to the contrary. The Chairman, Hon Mafuru was under a clear obligation to
dismiss the claim. It is clear law that in courts of limited pecuniary jurisdiction valuation
assumes great importance. A plaintiff may over value or under value the suit for the
purposes of avoiding a court of a particular grade. In the former case, the plaint must be
rejected under Order 7 since undervalue goes to the maintainability of the suit. Mulla V2.
Page 1931
Further, when the matter was sent for revision to the high Court, Mengi in total abuse of
due process of law, went to the High Court registrar and made an inappropriate ex-parte
application for the registrar to transfer the claim back to the land Tribunal over which he
had influence to corrupt the proceedings.

It is our belief, that all the time the Judiciary support him in this game it will not stop. As
such, we respectfully submit to you that we have no choice but to stop playing the game
and vacate ourselves from the ambit of the courts. We realize that we are upsetting a
system that has operated to the benefit of the courts and advocates for years. However,
there is not excuse for what is happening to us especially, given the governments present
commitment to investors.
It is manifestly clear, that Mengi and his lawyers are deliberately and in abuse of due
process of law by misleading the courts in his vexatious claims and this conduct is being
fuelled by the courts acceptance of them clear contradistinction of the law. Mengis
conduct be it civil or criminal is not being checked by any means and this simply
provides him with the confidence to push the buttons of corruption to the absolute limits
and with respect, make a mockery of the government and all the good it is trying to do.
Honourable Minister, we have committed no criminal or tortuous act in this country
giving rise to litigation. As such, we believe, that we have a right to live in Tanzania in
peace without being subjected to the appalling harassment and abuse by the Police the
Judiciary and associates of Mengi. Mengi together with his advocate Sandi (his advocate
in the Land Tribunal claim) have made it clear to us that they will continue to issue
litigation against us in order to cause us harm and make us leave Tanzania. He is treating
the issue of proceedings a game and making a complete mockery of the new government
and its policies. We are at a loss to understand, why his interest are being placed above
ours in a country declaring itself investor friendly.
We want to be part of this new and progressive stage in Tanzanian History. However,
with respect to investors, we feel this progress has to be two-way process via-a-vis
investors. Amidst the governments rhetoric directed at investors and a desire for foreign
investment in Tanzania we feel justified in asking for and receiving, the protection of the
Tanzania government against the most appalling corruption that has been vented against
us this past two years and, once again we ask for it.
We appreciate the difficulties facing the present government and the efforts being made
to combat corruption. That said we feel it is very unfair, that we are being persistently
asked to suffer the consequences of it. We are investors, we have committed to Tanzania
completely, it is time now we feel that we are left alone, compensated for the damage
done to us and allowed to develop our farm and live our lives in Tanzania in peace. If it is
the wish of the government for whatever reason be it Reginald Mengi or otherwise, to
give our farm back to Benjamin Mengi then we do ask that this is made clear to us so we
can all move on. If we are not provided with the protection that we have so frequently
asked for clearly, we cannot continue to operate within a legal vacuum where our
investments and personal safety are insecure.
I am sending a copy of this letter to Mr Lyimo together with more detailed legal
submissions upon which he may advise you as suggested by you last week.

With our sincere respects and kind regards.

Yours sincerely,
Stewart Middleton.
cc.

Mr. Lyimo, Deputy Attorney general Dar es Salaam

Mr. Tony Brennan, Acting British High Commissioner, Dar es Salaam.