CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KOROSSO. J.A.. RUMANYIKA, J.A., And ISSA. J J U CIVIL APPEAL NO. 594 OF 2022 AFRINEX LIMITED..................................................................I st APPELANT ANNA KAISA KAHKOLA (as the administratix of the estate of Chandresh Bavadiya).......................................................... 2nd APPELLANT ANNA KAISA KAHKOLA........................................................3rd APPELLANT VERSUS PETRA LARSSON................................................................ 1st RESPONDENT JABARI INVESTMENT LIMITED......................................... 2nd RESPONDENT (Appeal from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) fMkeha. 3.) dated the 11th day of March, 2022 in Commercial Case No. 78 of 2020 JUDGMENT OF THE COURT 18th & 24th March, 2025 ISSA, J.A.: The dispute between the parties is one of many stories of business relationship truncated by greed and mistrust. The following brief background facts will serve the purpose of appreciating the essence of the present appeal. It was alleged that, on 13th June, 2019 the 1st respondent signed a Personal Investment Agreement (PIA) with the 2nd and 3rd appellants in which she advanced to them USD. 35,000 payable in 75 days with 12% interest. On 23rd October, 2019, she signed another PIA in which she advanced USD. 140,000 to the 2nd and 3rd appellants payable in 75 days with 15% interest. Cumulatively, the 1st respondent advanced USD. 175,000 to the 2nd and 3rd appellants to finance the consignment of Sim cards from Taiwan, Niger, Senegal and India. The 2nd and 3rd appellants managed to pay back only TZS. 37,000,000.00, hence, they failed to honour their side of the agreement. The 1st respondent was not amused, together with the company in which she was director and shareholder (the 2nd respondent) filed a suit against the 2nd and 3rd appellants together with their company (the 1st appellant) at the High Court of Tanzania (Commercial Division) (the trial court) vide Commercial Case No. 78 of 2020, claiming USD. 239,000.00 being the money advanced plus interest. The appellants, on the other hand, denied liability, asserting that the PIAs were not legally enforceable against them. They also disputed the existence of any relationship between the 1st appellant and the respondents or between the appellants and the 2nd respondents. On this basis, they moved the trial court for the dismissal of the suit with costs. The trial court delivered its decision on 11th March, 2022 in favour of the respondents. The appellants were jointly ordered to pay USD. 239,000.00 with 12% interest per annum. They were also ordered to pay the respondents USD. 25,000.00 as general damages. Aggrieved, the appellants filed the instant appeal predicated on four grounds which we will not reproduce for the reason that will be apparent shortly. At the hearing of the appeal, the appellants were represented by Mr. Seleman Ally Kimaro, learned advocate whereas the respondents had the services of Mr. Roman S. L. Masumbuko, also learned advocate. At the outset, Mr. Kimaro apprised the Court that the 2nd appellant is no more and submitted a death certificate revealing that he demised on 29th April, 2023. Further, he informed the Court that the wife of the deceased, the 3rd respondent was appointed by the District Court of Temeke at Temeke vide Probate and Administration Cause No. 28253 of 2023 on 2nd April, 2024 as an administratix of the deceased's estate. He implored us to cause the said administratix to be made a party to the instant appeal in place of the deceased in terms of rule 105 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The Court granted the prayer and Anna Kaisa Kahkola, the administratix of the estate of Chandresh Bavadiya and thus the legal representative, was made a 2nd appellant. Leaping to the instant appeal, the Court suo motu invited the learned advocates to address it on the propriety of the proceedings before the trial court. Particularly, the propriety of the witness statement of 2nd appellant (2nd defendant in the trial court) who testified as DW1. Mr. Kimaro was quick to respond that the witness statement was suffering from two anomalies: one, it was not taken on oath and two, the jurat was defective. Mr. Masumbuko joined hands with Mr. Kimaro that the statement of DW1 was defective. He added that even the statement of DW2 was no more having been struck out by the trial court. Their point of diversion was on the way forward. Mr. Kimaro submitted that since the witness statement was incurably defective, the remedy is to expunge it. But since it was the only evidence in defence of the case before the trial court, it will be as good as if the respondents have not defended the claims against them. Hence, he urged the Court to nullify the proceedings of the trial court and order a fresh trial. Mr. Masumbuko, on the other hand, was of the view that since the respondents' evidence (the plaintiffs in the trial court) is intact, the Court should expunge DWl's statement and then dismiss the instant appeal without ordering a fresh trial. After hearing the learned counsel, the issue to be determined is whether the witness statement of DW1 was defective and what is the remedy. The learned advocates were at one on the status of the witness statement of DW1 which appears on page 550 of the record of appeal. That it is defective as it contravened rules 49 and 50 of the High Court (Commercial Division) Procedure Rules, 2012 as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019 (the Commercial Court Rules). For clarity, we feel we should extract rules 49 and 50 of the Commercial Court Rules which govern the requirement of submitting witness statement as well as the content and format of these statements. These rules provide: "49. (1) In any proceedings commenced by plaint, evidence-in-chief shall be given by a statement on oath or affirmation. (2) The statement shall be filed within fourteen days o f the completion o f the final pre-trial conference and served as directed by the Court: Provided that, the obligation o f a party to serve a witness statement shall be independent o f the other party's obligation to file and serve his respective statement. 50.(1) A witness statement shall - (a) be made on oath or affirmation; (b) contain the name, address and occupation o f the witness; (c) so far as reasonably practicable, be in the intended witness own words; (d) efficiently identify any documents to which the statement refers without repeating its contents unless this is necessary in order to identify the document; (e) not include any matters o f information or belief which are not admissible and where admissible, shall state the source o f any matters o f information or belief; (f) neither contain lengthy quotation from documents or engage in legal or other arguments; (g) be dated and signed or otherwise authenticated by the intended witness; (h) include a statement by the intended witness that he believes the statements o f fact in it to be true, and (i) be in numbered paragraphs. (2) The witness statement shall be substantially in the Form prescribed in the Third Schedule to these Rules." (Emphasis supplied) Starting with rule 49 above which is applicable in the High Court Commercial Division, it establishes an obligation for the parties to proceedings initiated by plaint to submit their respective evidence-in-chief by lodging witness statements within 14 days of the conclusion of the final pre-trial conference and serve them in accordance with the court's directive. Rule 50, on the other hand, regulates the content and form of a witness statement. Subrule (1) specifies the content of every witness statement while subrule (2) demands that every statement be substantially in the form prescribed in the Third Schedule to the Commercial Court Rules. Glancing at the witness statement of DW1, there are two anomalies observed. One, it was not sworn as required by rules 49(1) and 50(l)(a) of the Commercial Court Rules. Two, the jurat of attestation in the statement was defective. The word "jurat" has its origin in the Latin word "jurare" which means "to swear". It is a certification added to an affidavit or deposition stating when, where and before whom (which authority) the affidavit was made. In Director of Public Prosecutions v. Dodoli Kapufi and Another [2011] TZCA 46, TANZLII, the Court expounded the role of Notary Public and or Commissioner for Oaths, thus: "... a Notary Public and or Commissioner for Oath has to certify three matters, namely: i) That the person signing the document did so in his presence, ii) That the signer appeared before him on the date and at the place indicated thereon, and Hi) That he administered an oath or affirmation to the signer, who swore to or affirmed the contents o f the document." In the jurat of the witness statement of the DW1, the third aspect was missing; the jurat did not show if the Notary Public administered an oath or affirmation. Further, the witness did not swear or affirm the contents of the document. There is no gain saying that the said witness statement is defective for non-compliance with rules 49(1) and 50 (l)(a) of the Commercial Court Rules. Indeed, in the Commercial Court the witnesses' statements are fundamental in proving or disapproving a claim in a suit. Therefore, failure to file a witness statement or filing of witness statement which is incurably defective is tantamount to failure to prosecute a case or defend the case. The consequences of such failures are fatal and incurable. It is the law in this jurisdiction that a witness statement recorded without taking an oath is fatal as it vitiated the whole proceedings. The Court has pronounced on that in Ivee Infusions EPZ Ltd v. Mak Medics Limited [2024] TZCA 793, TANZLII and Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, [2020] TZCA 1890. In the latter case the Court stated: "Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties'case." Similarly, though persuasive, the High Court decisions in this subject are also abundant. See- Puma Energy Tanzania Limited v. Spec- check Enterprises Limited [2016] TZHCComD 2089, TANZLII, NIC Bank Tanzania Limited v. Hirji Abdalla Kapikulila [2018] TZHCComD 36, TANZLII, Afriscan Group (T) Limited v. Said Msangi [2015] TZHCComD 20, TANZLII. On the way forward, we stress that the sole method by which a party may introduce evidence-in-chief before the Commercial Court is by submitting the witness statement. Hence, when a party fails to do that or submits a statement which is incurably defective, the effect is the same as that of the failure to prosecute the case or defend the case. In the instant case, since the witness statement of the sole witness for the appellants (the defendants in the trial) was incurably defective, we find the decision of the trial court which was based on that statement a nullity. Therefore, we invoke section 4(2) of the Appellate Jurisdiction Act, Cap. 141 and quash the proceedings and set aside the judgment of the. trial court. Whichever party is still interested to litigate on the matter, they are at liberty to start the case before the trial court at the stage of pleadings. We make no order as to costs as the issue was raised by the Court. DATED at DODOMA this 24th day of March, 2025. W. B. KOROSSO JUSTICE OF APPEAL S.M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 24thday of March, 2025 in the presence of Mr. Seleman Ally Kimaro, learned counsel for the appellants and Mr. Roman S. L. Masumbuko learned counsel for the respondents, via video link from Dar es Salaam is hereby certified as a true copy of the original.