Judegment Day At The High Court London

Judegment Day At The High Court London
Mengi v Hermitage: Libel Claim Successfully Defended

Friday 29 October 2010

HIGH COURT DISMISSES MENGI’S DEFAMATION CLAIM AGAINST BRITISH INVESTORS

The Moshi High Court has dismissed Benjamin Mengi’s defamation claims against British investors Stewart Middleton, Sarah Hermitage and Mr. Paul Deodat Mtenga, a Tanzanian and former employee of the investors.

Mengi issued a single plaint in January 2006 claiming US$1,000,000 in damages from each of the defendants based on statements made in affidavits prepared in the course of legal proceedings, a private email communication and statements made by the investors to Mengi personally.

The Moshi High Court dimissed Mengi's claims on the basis that he had not attended court to pursue them. No mention was made by the court of the fact that Mengo's plaint was legally flawed and an abusive and corrupt use of legal process in the following respects:-

The plaint contained no cause of legal action

It is clear law that evidence contained in affidavits filed in the course of legal proceedings is 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.

Of concern also is the fact that the plaint was filed by prominent lawyers in Dar es Salaam  and has not been struck out suo motu by the court when it clearly sought to mislead the court on material facts.

The Moshi High Court owed a duty of care to the defendants. 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 Mengi's 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. Clearly the investors were permitted to make preliminary  applications regarding the legitimacy of the plaint 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 were clearly rongfully joined and thus  misjoined uder the law.

THE PARTIES WERE MISJOINED AT LAW

Mengi inappropriately join the three defendants in the plaint. 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).

Mengi’s claims in this plaint are mutually exclusive of each other i.e. each of the defendants  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.


WRONGFUL JOINDER OF THE PARTIES

The 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 defendants were wrongfully joined and the plaint should have been 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.)

COURT REFUSED FILING OF PRELIMINARY OBJECTIONS AND AN EXTENSION OF TIME 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 filing a defence. The deadline for the filing of a defence is 21 days after the plaint has been served. The deadline in this case was 28th February.  On the 24th February the investors 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 the defence

The court refused four attempts to file the Chamber Summons.

These proceedings such as they were, were clealy conducted in clear abuse of due process of law.

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