cats t ltd 4 others vs international commercial bank t ltd 2022 tzhccomd 281 9 september 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMEERCIAL APPLICATION NO. 116 OF 2022 (ARISING FROM COMMERCIAL CASE NO. 56 OF 2020) CATS TANZANIA LIMITED....................................... 1ST APPLICANT MOHAMED ROSHAN HAMEER................................. 2ND APPLICANT AKBER ROSHANALI HAMEER................................. . 3RD APPLICANT IMRAN MOHAMED HAMEER................................. 4™ RESPONDENT MAZAHER LIMITED................................................. 5™ APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK OF (TANZANIA) LIMITED.................... ........... RESPONDENT Date of Last Order: 25/08/2022 Date of Ruling: 09/09/2022 RULING MAGOIGA, J. This ruling is on preliminary objection on point of law raise and argued by the learned advocate for the respondent to the effect that, the instant application is incompetent in law as it contains multiple applicants supported by only the affidavit of the l51 and 2nd applicants, as such it ought to be struck out. The prayer to strike out this application was pegged under Order XLIII Rule 2 of the CPC [Cap 33 R.E.2019] which requires that any application should be supported by affidavit. Mr. Madibi pointed out that, this application has five applicants but is supported by the affidavit of the 2nd applicant and on behalf of the l51 and 5th applicants. According to the learned advocate for the respondent, no affidavit of the 3rd and 4th applicants to support the application and as such renders the instant application incompetent. In support of his stance, the learned advocate for the respondent cited two cases by the Court of Appeal of Tanzania on the same issue, which irresistibly held that an application of this nature with multiple applicants should be supported by one or more affidavits to make it competent. These are: LRM INVESTMENT COMPANY LIMITED AND 5 OTHERS vs. DIAMOND TRUST BANK TANZANIA LIMITED AND ANOTHER, CIVIL APPLICATION NO. 418/16 OF 2019 DSM (CAT) (UNREPORTED) AND THE REGISTERED TRUSTEE OF ST. ANNA'S GREENLAND SCHOLLS (T) AND 6 OTHERS vs. AZANIA BANK LIMITED, CIVIL APPLICATION NO.168/16 OF 2019 CAT (DSM) (UNREPORTED). e 2 Guided by the above obvious stance of the Court of Appeal of Tanzania, Mr. Madibi strongly urged this court to strike out this application for being incompetent with costs for want of affidavit by the 3rd and 4th applicants. On the other hand of the applicants who were enjoying the legal services of Mr. Matojo Cossata, learned advocate, unmoved by Mr. Madibi's arguments argued that the submissions by Mr. Madibi are misconceived because were on applicability of Rule 49(1) of the Court of Appeal Rules, 2009 as amended which are not applicable in the High court and as such strongly argued that the cited case laws do not apply in the situation we have. According to Mr. Cossata, the relevant law for our situation is Order XLIII rule 2 which is clear the requirement is chamber summons and an affidavit. It was the strong argument of Mr. Cossata that, reading the provisions of Rule 2 of Order XLIII of the CPC, no requirements that the affidavit has to reflect all applicants and if the law wanted so it could have stated so. Mr. Cossata went on to argue that any interpretation outside the wording or provisions of the law cannot be applied to defeat this application and anything outside the law or where the law is silent should not be allowed. 3 Mr. Cossata further argued that the literal interpretation of the statute should apply unless an ambiguity, absurdity and unable to cure mischief. In support of his stance, Mr. Cossata cited the case of SINGIDA REGIONAL TRADING COMPANY vs. TPTC [1979] LRT 11, in which the High Court held that law should be interpreted as it is. The learned advocate for the applicants urged and implored this court to be guided by overriding objective principle which is underscored under article 107 of the United Republic of Tanzania constitution 1977 as amended and under the Civil Procedure Code [Cap 33 R.E.2019] which reminds the court not to be tight up with technical provisions when dealing with matter but go to substantial justice. To bolt up his arguments cited the case of ATTORNEY GENERAL vs. MUNUO NGUNI [2004] TLR 44. Mr. Cossata further argued that the defects, if any, are technical and strongly urged this court to dismiss the preliminary objection. In rejoinder, Mr. Madibi argued that Mr. Cossata is deliberately misleading the court that this is not a pure point of law while is a fact and no dispute that the affidavit filed does not cover all applicants. « 4 It was further rejoined by the learned advocate for the respondent that the decision of the Court of Appeal binds the lower courts on any principle. On the argument that the objection is on technicality he argued that this is not the case because is a requirement of the law which cannot be cured by overriding principle in disregard of the rules of procedure that are couched in mandatory terms. On that note, reiterated his earlier prayers to strike out this application. This marked the end of hearing of this objection. The noble task of this court is to determine the merits or otherwise of this objection. However, upon hearing learned advocates' for parties rivaling arguments, I noted that there are some facts not in dispute between parties. These are: one, no dispute that the affidavit in support of this application was not referring to all applicants. Two, there is no dispute that in the Civil Procedure Code [Cap 33 R.E. 2019] and the Court of Appeal Rules, 2009, it is mandatorily required for any application/notice of motion to be supported by an affidavit. However, what is in serious dispute is; one, whether the principle as interpreted in the interpretation of Rule 49 (1) of the Court of Appeal 5 applies along side with the provisions of Rule 2 of Order XLIII of the CPC, and two, if the principle of overriding objective applies in the situation we have here. Starting with the first issue, whether the principle as amply started in the interpretation of Rule 49(1) of the Court of Appeal Rules by the case laws by the Court of Appeal, applies to the provisions of rule 2 of Order XLIII of the CPC? According to Mr. Cossata, he argued strongly that the wording of the two provisions are not in pari material and the Court of Appeal Rules do not apply to High Court and further urged the court to find that is not a requirement of the law to state what Mr. Madibi argued in respect of this point but the law has to be interpreted as it is. On the other hand, Mr. Madibi stood to his guns that the principle applies, based on his arguments and much as it is obvious that other applicants had no affidavit to support the prayers, then, urged this court to strike out the instant application for being incompetent. For easy of reference, the two provisions provides as follows:- Rule 2 of Order XLHI of the CPC. 6 R/e 2. Every appHcation to the court made under this Code shall, unless otherwise provided, be made by chamber summons supported by affidavit. Rule 49 (1) of the Court of Appeal Rules, 2009:- Rute 49(1) Every forma! appHcation to the courtshall be supported by one or more affidavits of the appHcant or some other person or persons having knowledge ofthe facts. Having gone through the wording the two provisions, the catch words in both situations is that any application in both Courts (High Court and Court of Appeal) must be mandatorily supported by the affidavit, this is because the word used is shall, which connotes mandatory requirement. It should be further noted that it is through the affidavit the reasons for grant of the application are stated. It is my further considered opinion that both provisions derive its objective from the principle that, any application which is not supported by an affidavit is incompetent. With that in mind and turning to the first issue, as observed above, much as there is no dispute that there were two applicants who had no affidavit to support the application as correctly argued by Mr. Madibi and rightly so in 7 my own view and mostly guided by the case law, then, this application must be and is hereby found to be incompetent for want of affidavits of the 3rd and 4th applicant to support their prayers in the chamber summons. That said and done, I find that the principle of every application to be supported by an affidavit as amply held by the Court of Appeal in the case laws cited applies even in the lowers courts, High Court inclusive, because it upon which supports the application otherwise to proceed and grant this kind of application will amount to granting the application to the 3rd and 4th applicants without any supportive affidavits. This is against the spirit of the obvious law that is couched in mandatory terms that unless supported by affidavit no formal application can stand without any affidavit. This takes me to the second issue, whether the principle of overriding objective applies to the situation we have here. This issue will not detain this court much. Taking guidance in the cases of THE REGISTERED TRUSTEES OF SAINT ANITA'S GREENLAND SCHOOLS (T) AND 6 OTHERS vs. AZANIA BANK LIMITED, CIVIL APPLICATION NO. 168/16 OF 2020 and MOHAMED ABDALLAH NUR AND 3 OTHERS vs. HAMAD MASAUNI AND 2 OTHERS, CIVIL APPLICATION NO.436/16 OF 2022, CAT (DSM) 8 (UNREPORTED) similar arguments were raised before the Court of Appeal but the Court firmly observed and held that:- "the proposed amendments are not designed to blindly disregard the rules of procedure that are couched in mandatory terms." With the above stance, Mr. Cossata's arguments fall short of convincing me to distinguish this case with the clear set standards of the Court of Appeal on the same point. Without much ado, therefore, I am constrained to find and hold that the instant application is incompetent and proceed to sustain the preliminary objection raised and argued. I, thus, accordingly strike out this application with costs to the respondent. It is so ordered. 9