DAVID JOSEPH MAHENDE VS AFRISCAN CONSTRUCTION CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 294 OF 2014

DAVID JOSEPH MAHENDE INTERVENORS

SAID ABDALLAH MSANGI

VERSUS

AFRISCAN CONSTRUCTION CO. LIMITED................................................... APPLICANT

MINISTRY OF AGRICULTURE AND FOOD SECURITY........................... 1s t RESPONDENT THE ATTORNEY GENERAL..................... 2 n d RESPONDENT

RULING Mansoor, J: Date of Hearing - 9th ARPIL 2015 Date of Ruling- 17th APRIL 2015 1 Intervenor application enables someone who is effectively a stranger to litigation in a court proceedings to participate in proceedings. During the course o f proceedings in Misc. Civil Application No. 257 of 2014 arising out of Misc. Civil Case No. 42 of 2006, an application have been filed by two Intervenors, namely, David Joseph Mahende and Saidi Abdallah Msangi, to permit them to be intervenors in the application and to be added as respondents. On 9th April 2015 when this Court had taken up the hearing of the application, the learned counsel for the Applicant in Misc. Civil Application N. 257 of 2014 had taken up objections that the application by the intervenors is wrongly titled, and that the intervenors should have introduced themselves in the application as Applicants, and not the intervenors, and the applicant in Misc. Civil Application No. 257 of 2014 should have been titled the Respondent. The Application titled the two intervenors as “intervenors”, and the Applicant in Misc. Civil Application No. 257 of 2014 as an Applicant. If the Application 2 by the intervenors shall be successful, the Applicant in Misc. Civil Application No. 257 o f 2014 shall remain to be titled the Applicant, and the intervenors shall become, the 3rd and the 4 th Respondents, the 1st and 2 nd Respondents are

and will remain the Ministry of Agriculture and Food Security, and the Attorney General, respectively, as mentioned in Misc. Civil Application No. 257 o f 2014. An application may be made under Order 1 Rule 10 o f the Civil Procedure Code to join a party to the proceedings as a necessary party or an intervenor to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. An application for leave to intervene before the Court can also be brought pursuant to the inherent jurisdiction o f the Court, and any person interested in the suit may apply for leave to intervene. Unlike other jurisdictions in which there are specific forms or formats prescribed under the Civil Procedure Code for an application by an intervenor, our Code is silent, thus the format used in our jurisdiction is the Chamber summons supported by an affidavit. Since the 3 intervenor becomes an applicant in the chambers summons, it is important that the chamber summons indicates him as the Applicant/Intervenor, and the other parties should be shown as the Respondents. Generally speaking, before the intervene is allowed to intervene, he is the Applicant, and the title to the chamber summons should show him as an Applicant, and the Court would consider whether the applicant has a direct interest in the litigation or whether the applicant can make a valuable

contribution or bring a different perspective to a consideration of the issues that differs from those of the parties. Before he is allowed to intervene, the applicant is a would be intervenor, but in an application to intervene, he is an applicant. I therefore agree with the objection raised by the Counsel for Afriscan Construction Co. Limited who is the Applicant in Misc. Civil Application No. 257 of 2014, that the intervenors in Application No. 294 of 2014 should be named as Applicants, and Afriscan Construction co. Limited should be titled as the 1st Respondent, and when the Application is granted then the Applicants shall become intervenors in the main application. Thus, in the premises o f the above reasons, the application by the intervenors becomes incompetent, and it is hereby struck out with costs. Regarding the 2 nd objection on the swearing of one affidavit by the two deponents of different beliefs before the same Commissioner for Oaths, I agree with the Counsel for the Intervenors that this objection disqualifies from being treated as the point of preliminary objection, as the Counsel for the Afriscan Construction Co. Limited failed to demonstrate to the Court as to which section of the law has been offended. I shall therefore disregard this objection as I believe that, in any case, notwithstanding any irregularity in the administration o f any oath, or any

irregularity in the making of an affirmation, or, in fact, any irregularity in the form or method of taking evidence, the proceedings should remain to be valid. This is different from giving false evidence. An omission to take an oath or make an affirmation should not invalidate any proceedings, the law requires every person giving evidence on any subject before any court or person authorised to administer oaths or affirmations to state the truth on such subject, the format of administration of oath should not invalidate the proceedings so long as what has been given as evidence is the truth. In the premises, and since the first objection was upheld, this Application is struck out with costs. DATED at DAR ES SALAAM this 17* day of April, 2015 MANSOOk

JUDGE 6