afrinext limited and 2 others vs petra larson and another 2021 tzhccomd 3398 1 november 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 163 OF 2021

BETWEEN AFRINEXT LIMITED.......................................................... 1st APPLICANT CHANDRESH BAVADIYA................................................ 2nd APPLICANT ANNA KAISA KAHKOLA................................................. 3rd APPLICANT Versus PETRA LARSON................................................................. 1st RESPONDENT JABARI INVESTMENT LIMITED....................................... 2nd RESPONDENT Date of Last order: 1st November, 2021 Date of Ruling: 1st November, 2021

RULING MKEHA, J. Through Mr. Mbaga learned advocate, the applicants are moving the court for an order recalling Ms. Petra Larson, the plaintiff's 1st witness for further cross examination. According to the affidavit in support of the application and the learned advocate's submissions, the said witness was not cross examined on matters and facts stated in her witness 11 P a g e statement with regard to payments claimed to have been made by the applicants to the respondents in respect of what is claimed to be an investment agreement. That, whereas the witness had stated in her evidence in chief that the applicants did not pay at all, there emerged a different story after cross examination. That, there are inconsistencies between the 1st respondent's statement and her answers to questions put to her by way of cross examination. That, after being cross examined, the 1st plaintiff's witness left the claimed sum uncertain. Mr. Nangi learned advocate considered the application as a scheme for delaying the main case. In view of the learned advocate as per the law, there were no reasons for exercising the court's discretion in the applicant's favour. From the applicant's affidavit and submissions there was no new evidence from the 1st plaintiff's witness even after her cross examination in court. That is why the applicants' advocates did not object the respondent's/ plaintiff's prayer

for close of case (the plaintiff's) The purpose of cross examination is to contradict. The applicants are now pegging their prayer for recalling of PW1 to inconsistencies found between her earlier statement and her testimony when subjected to cross examination which is the usual results. In any case, if there are 2 | P age such inconsistencies, they are to the applicant's/defendant's favour. They do not however attract recalling PW1 for further cross examination on matters she was cross examined upon on 21st October, 2021. See: typed proceedings of PWI's testimony in court, dated 21/10/2021. The application is dismissed with costs for not being meritorious Dated at DAR ES SALAAM, this 1st day of November, 2021.

JUDGE 1/11/2021 Court: Ruling is delivered in the presence of the parties' advocates this 1st day of November, 2021. C.P. MKEHA

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