FURAHA TRADING CO

IN THE HIGH COURT OF TANZANIA

COMMERCIAL DIVISION

AT DARES SALAAM MISC COMMERCIAL CAUSE NO 144 of 2017 IN THE MATTER OF THE COMPANIES ACT NO 12 OF 2002

AND

IN THE M ATTER OF A PETITION FOR UNFAIR PREJUDICE CONDUCT OF A

SHAREHOLDER OF THE COMPANY BY FURAHA TRADING COMPANY L T D -------------------------------------------PETITIONER

VERSUS AFRI TEA AND COFFE BLENDERS (1963) LTD------------------------------------------------- 1s t RESPONDENT YUSUF M U L LA --------------------------------------------------------------------------------------------- 2n d RESPONDENT SHAINPOYARRA------------------------------------------------------------------------------------------ 3r d RESPONDENT

RULING SONGORO, J This is a ruling on preliminary objection on point o f law raised by A fii Tea and Coffee Blenders (1963) Ltd, Y usuf Mulla, and Shain Poyarra the 1st 2nd and 3rd Respondents respectively contesting that, the jurat attestation in the Amended Affidavit in support o f the Petition filed by Furaha Trading, the Petitioner is defective in the sense that, the word “ Truly” was noted cited in the Jurat o f attestation therefore it contravenes provision o f Section 8 o f the Notaries Public and Commissioner for oaths Act, Chapter 12 [R.E 20021. In view o f the defectiveness in the jurat o f attestation, Respondents prayed to the Court to dismiss the Petition. Thus in the light o f a Preliminary objection on point o f law raised by Respondents, the court invited both counsels to pursue a preliminary objection by a way o f written submissions. So, Page 1 of 9 Mr. Benjamin Marwa, Learned Advocate acting for respondents filed written submission in support o f the preliminary objection point o f law and prayed for the dismissal o f the suit, whereas Mr. Stanley Mabiti, Learned Advocate o f the Petitioner filed a written submission and vehemently opposed the objection raised. In pursuing the preliminary objection on point o f law, the Respondent's Counsel pointed out in his written submission that, the objection is based on the jurat o f attestation o f affidavit sworn by

Mr Antony Fernandez sworn on 4 th day o f July 2017 in Dar es Salaam which support amended petition. In further clarification o f the preliminary objection, Respondent counsel stated that, the Notary or Commissioner for oaths who the affidavit was sworn before him, he did not insert the word “Truly” in the Jurat o f attestation to confirm if the affidavit was attested at Dar es Salaam and to confirm a date which the oath was taken. It was the argument and submission o f Respondent's counsel that, pursuant to Section 8 o f the Notaries and Public Commissioner for Oaths Act Cap 12, it statutorily requires the Notary or Commissioner for oath as the case may be to insert a word “TRULY” in the jurat o f attestation. Next, Respondent's Counsel insisted that, since the Notary was under statutory obligation to state if what was stated in the Jurat was True and the word TRULY is missing certainly the jurat o f attestation is defective and turn the whole affidavit to be incurable defective and therefore may not support the amended petition. For that, reason is praying for the dismissal o f the Petition with costs in favour o f Respondents. Page 2 o f 9 To support his point the Notary must insert the word “Truly” in the jurat of attestation, the Respondent's Counsel drew that, attention of the Court to the provisions of Section 8 of the Notaries Public and Commissioner for Oaths Act Cap

12 which states that, “Every notary public and commissioner for oaths before whom any oath or affidavit is take or made under this Act shall state TRULY in the jurat o f attestation at what place and on the date the oath or affidavit is taken or made ” Thus relying on the legal requirement of the provision of Section 8 of the Notaries Public and Commissioner for Oaths Act Cap 12 plus a fact that, in the Jurat of attestation of Petitioner's affidavit in support of the Petition the word TRULY was not stated that, turns the affidavit in support of the petition to be defective and it cannot served the purposes for which is intended. While on this point Respondent's counsel also drew the attention of the Court in decisions in Civil Application No 105 of 2006 between VIP Engineering and Marketing Ltd Versus SGS Societe Generale De Surveillance SA and SGS Tanzania Superintendence Company Ltd where it was stated by the Court of Appeal that, the statutory requirement of Section 8 of the Notaries Public and Commissioner for Oaths Act Cap 12 are couched in mandatory terms thus has to be complied with. The Respondent's counsel also added that, due to the fact the word TRULY is missing in the Jurat of attestation that, also cast doubt if the deponent was in Tanzania or was before the Notary when was attestation of the affidavit in support of amended petition was taking place. Respondent's

counsel then persistently and consistently prayed to the court that, due defects in the jurat of attestation certainly the affidavit in support of the petition is defective and on that, basis he further prayed for dismissal of petition with costs. Page 3 of 9 In reply to the preliminary objection on the point o f law, Mr. Stanley Mabiti the Petitioner's Counsel opposed the preliminary objection on two grounds. First, he stated that, the objection raised by Respondent's counsel is merely abuse o f court process and waste time on the ground that, the matter was already ready to go to mediation when the preliminary objection was raised. In that, regard the counsel insisted that, the objection was supposed to be raised at the earliest possible time. Since it was raised after the first pre-trial conference was concluded and the matter was scheduled for mediation, he prayed that, the court dismiss because a preliminary objection may not be raised at the mediation stage. Next, Petitioner's Counsel then submitted that, the objection raised by respondents is not raising pure points o f law to qualify to be a preliminary objection on point o f law as emphasized in the case of Mukisa Biscuit Manufacturing Company Limited Versus W est End Distributors Limited (1969) EA 696. The counsel then reminded the court that, as decided and emphasized in the case o f Mukisa Biscuit Manufacturing Co

Versus W est End Distributor Ltd (supra) a preliminary objection on point o f law must contain pure point o f law the one which m ay decide without resorting to determination o f factual issues and evidence. The Petitioners counsel then argued that, from his point o f view determination o f the so called preliminary objection, requires ascertainment o f facts and evidence on whether the deponent was in Dar es Salaam or not by the moment o f making an oath, which cannot be done at this preliminary stage. Page 4 o f9 He then added that, due to the fact resolving o f preliminary objection requires analysis o f facts and evidence the point raised do not qualify to be a preliminary objection on point o f law. For that, reasons the counsel prayed that, the objection be dismissed. The Petitioner's counsel also went a step further and reminded the court that, under Rule 74 o f the High Court (Commercial Division Procedural Rules GN 250 o f 2012. the Deputy Registrar has statutory powers to reject the affidavit if is o f the opinion that, it contravenes the provisions o f Order XIX o f the Civil Procedure Code Cap 33 [R.E 2002], It was the argument and submission o f the Petitioner's Counsel that, since the affidavit in support o f the amended petition was not rejected by the Deputy Registrar, that, shows and confirm that, the affidavit is proper. Next, the Petitioner's counsel then

contested that, the objection raised is not a point o f law and prayed that, the objection raised be struck and the petition be allowed to proceed on merit. The court has considered the preliminary objection on point o f law on the jurat o f attestation and submissions from both parties and find the objection raised is based on Section 8 o f the Notaries Public and Commissioner for Oaths Act Cap 12 Revised Edition o f 2002. Thus when I revisited the preamble o f the Notaries and Public Commissioner for Oaths Act Cap 12 which is numbered as Cap 13 in some o f the Revised Edition, on I noted that, it permeable o f the Act reads as follows that, is "An Act relating to Notaries Public and Commissioners for Oaths" Page 5 o f9 So from its preamble the court find the Act only imposes statutory obligation to Notaries and Public Commissioners oaths Then the marginal note o f section 8 o f the Notaries Public and Commissioner for Oaths Act Cap 12 Revised Edition o f 2002, then reads as follows: “Jurat to state -when oath is taken” Thus guided by the marginal note o f Section 8 of the Notaries Public and Commissioner for Oaths Act Cap 12 Revised Edition o f 2002 it is clear on a requirement o f the section that, the jurat o f attestation must state when the oath was taken. Next, on the main text of Section 8 o f the Notaries Public and Commissioner for Oaths Act Cap 12 Revised Edition o f

2002 it provides as follows; Every notary public and commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made. Thus guided by words used in Section 8 o f Notaries Public and Commissioner for Oaths Act Cap 12 Revised Edition of 2002 the court finds the “marginal note” and “the section” itself set a statutory condition to Notaries and Commissioner for oath whom the oath or affidavit is taken or made to state truly in the jurat o f attestation at what place and date the oath or affidavit is taken or made. The close scrutiny o f the words or phrase which reads “to state truly” which are subject o f the Respondent's objection, in my view puts statutory condition to the Notary or Commission for oath as the case may to state in the jurat o f attestation a place and date o f attestation correctly and accurately So the legal emphasis meant in the cited Section 8 o f Cap 13 is truthful disclosure o f place” and “date o f the oath” or “affidavit”. In other words a Notary or Commission for Oaths is Page 6 of 9 prohibited to state a false place or false date in the jurat o f attestation. In other words the place and date when the jurat o f attest was made or taken must be correctly, accurately and precision be made Now turning to the “ Jurat o f

attestation” which is in the affidavit o f Anthony Femades, which support the amended petition, I perused it and find it reads as follows;- Sworn a t P a r es Salaaam by the said Anthony Fem ades who is known to me personally/introduced to me by Stanley Mabiti the latter being known to me personally this 4th day o f July 2017 Before Me: Name: Reuben Robert Address P. O .. Box 12325 Place: P a r es Salaam Date: 04/7/2017 Sg Commission for Oath In view o f the words contained in the jurat o f attestation in the affidavit o f Anthony Femades,, the court observed that, the key legal issue to be determined in the preliminary objection raised is whether or not the Jurat o f attestation cited in the affidavit has state the place and date which an oath or affidavit was made or taken as emphasized by Section 8 o f the Notaries Public and Commissioner for Oaths Act Cap 12. Quite frankly, I have perused “the jurat o f attestation” contained in the affidavit o f Anthony Femades the deponent as explained above, and easily noted in the jurat o f attestation Mr. Ruben Robert who is Notary dutifully discharged his duty by stating the place where the affidavit was sworn as P a r es Salaam and even stated the date the affidavit was taken as 4/7/2017. Page 7 of 9 In that, regard I hereby find and decide that, “ the jurat o f attestation ” in the affidavit supporting the Amended Petition has

squarely comply with the statutory requirement set by Section 8 of the Notaries Public and Commissioner for Oaths Act Cap 12 in the sense that, the Notary ably and diligently stated in the Jurat of attestation a place and date where the affidavit or the oath was taken. The place is Dar es Salaam and the date is on 4/7/2017. Respondent's in their argument and submission in support of the preliminary objection they have tried very hard to convince that, the deponent was not in Dar es Salaam on date the jurat of attestation was made. Honestly that, the issue whether or not the deponent was in Dar es Salaam on that, date a jurat of attestation was made, is a point of fact which may not be resolved by a preliminary objection on point of law. It seem to the court that, the easiest and established way of faulting any point depone in the affidavit is wait when the Petition is being heard to apply that, the deponent be called to cross examined on matters which were depone in the affidavit. Admittedly, Respondents have been consistently and persistently maintaining that, the deponent was not in Dar es Salaam on 4/7/2017 when the Jurat of attestation was made. It seems to me file objection raised also carries such allegations. I have casted my net further in the said allegations that the deponent was not in Dar es Salaam but quite frankly, I find judicial investigation and determination

on the point of whether or not the deponent was in Dar es Salaam on the date of jurat of attestation may be done and ascertained if the interested party files an application in accordance with Rule 3 of Order XIX of the Civil Procedure Code Cap 33 TR.E 20021, and apply for attendance of the deponent to be cross-examined on his presence on that date. So, from legal point of view, it is a point which may Page 8 o f9 not resolved by a preliminary objection on point o f law. Instead it requires deponent be cross examined and heard on the said points. All points considered, I hereby find and decide that, the preliminary objection raised was not proved because the jurat o f attestation was done in compliance with Section 8 o f the Notaries Public and Commissioner for Oaths Act Cap 12. Finally, the preliminary objection on point o f law is hereby dismissed for lack o f merit with costs in favour o f the petitioner. The Right o f appeal is fully explained to the parties Signed and Dated at Dar es Salaam on this 25th day o f September, 2018 Page 9 of 9