19991102 TZCA Dar es Salaam

I 1URT OF A1-'PEAJ, Off TANZANg

T DAR ES SALAAM ,10;; NO. 39 OF 1999 1, DSM EDUC.', TJON. 80 OFFICE. STATIONERY} , • APPLICANTS 2 • OMARI MGENI i • •' - AND 1~ NBC HOLDIID OORPORA.TION 2j MAJEMBE AUCTION MART LTD. i... ,. RESPONDEN'l'E 3. °f-lOHAMED HAMID ) (Application for st.dld.ng out notic1.1 of appeal from the decision of the 1Ei;h Court of Tanzania at Dar es SalaM,) dated the 21st day of December 1 199'? in Civil Case No, 248,of t994 RU.L_INO RAMADHANI I J •A. : This matter came up before me for hearing ci~ 8th Septem'.,.:,··, 1999 but the learned advocates for the respondent;;,, Mr. Mbuna ,,,.,d Mr. Shayo_, asked for an adjournment so that they ·:-ould be serv,. :3. with copies. of the notice of met ion which wciuld c_,Y;able them tl• .l \.~e counter affidavits. That prayer was granted and , he applicat·;,.;-.: ·;{a.a adjourned to 1st October, 1999. On that day 1 Mr. tfuuna, learx;,'-~- advocate for the 1st ar.d the 2nd r-espomient~q rai,;,Jd a prelim:\.::10.: '/ objection seeking to strike out the notice of moU'm• Mr. Mbuna had three object ions against the a Hidavit of ·1: h, applicant. First, he said that paragraph$ 4, 7 a.,(l 8 __of the af ;· j_. :.,wit advance arguments instead of faet.s which is what R;) affidavit ,,L,:::,:'.d contain. Second, he said, the affidavit has a pr&:_r,?r and that i ,,.:: pointed out, is al.so offensive. ~!r. Mbuna relied 0,1 Uganda · v~ ~mmissj,oner of Prisa~, [196fi/

EA 516 at 520 as a.,:.thority for i;t ,r;.,:,: 2 ... two ·submiss.tons. His last point was that the applicant, a Moslem, ····--. has taken an oath in~t:'~acf'of· making an affirmation • . ·------ The applicant, a layman, merely stated that the affidavit·• was . _ sworn befere a notary public on whom he relied and believed to know what an affidavit 3houl,d oontain. Mr. Mbuna. h.eweYei-. oon.t:.13d"d that paragrsph 4 wa& not argumsntat1ve but that it merely stated as a fact a inatte2" which the resp:xi,dent8 disputed.. It is true that paragraphs 7 and 8 are argumentative instead of stating matters of fact. Admittedly, again, the affidavit is c~neluded with a prayer. These two matters are contrary too.XIX R,3 of the Civil Procedure Code as expounded in ~ Ve IP,e Commissioner of Prisons doPJ i QS '-lith a Ugandan :-ul.9 which is in pari materia with our rule cit.ed e.tJq,re. Mr. Mbu.na ~ willing to adjourn the matter to enable the applicant amend his affidavit. However, in order to save time, he agreed that because th.a a!fida.iiit i.s eCTM"'l.bl.o 1 it eould be read omitting the <,£foncl.ing p..r.agr-aph&. I am of the deeid.e-e ~i.nicn t.hat matters of fo.rm and procedure '\.I are there t.o ensure th.l..t a ri;ospond..Qnt ol' a def'end=u: :.s .net prej\id.i,eoe in the preparation of his defence. It is correct that an affidavit is required to contain only matters of fact and not

arguments. It is equaly correct that at the hearing an applicant is required to present argumente based on the facts deponed to in the affidavit. So, according to O.XIX R.3 the sequence is that facts are given in the affidavit while arguments are made in court. But both have to be done it is just a question of when, where and how. If that is the case, could it, in the name of justice, be said that advancing arguments in an affidavit is so offensive as to cause an application to be struck out and thereby deny this final Court of justice an Ii i; ' •.. /3 I 1 epportunity to determine the matter on mer.its'! FormrJ and :;:,rocech. r-,.,,. are handmaids of justice and should not be used to a~feat justic1 (per ·. BIRON, . . J. in G.eneral Marketing Co. Ltd. v. .A, A.. Shi~:riff (,98<j/ T.L.R. 61 at 65) •· I hold the same view with respect to prayers r,c1ntained in 1:.;,1 there is no point of making the application. So, n.~1Jdng them Jlrem~urely in ~ e.ffidavit .should no-t be a .reason .fo.r avo1.din.g Now, let me go to the issue of taking an oath instead of ;making .an a.f.firmation ~ the ~p(J.?UU1.t is a M"Q6J..im .. M.·. Mlmn.:, cited section 4 of the Oaths (Judicial Proceed.in.,,"'13) and St.-itutea..'y De.el;lrati.cJl.s ~ , 1966 (Act No. 59 of 1966) which provides a.e !ollowt'l: If. ~j-o-ei: to a,r.-y provL,iQll. to the OJJltraey. contained in any written la\\', an oath

&hall be made by - ,!a) ;my p a r ~ ~ ~ )J..wful.~ bo aazniJ,..,""1 upon oath •r give or be required to r:ive evidence upon, oath by or before a eo,n"t; (b) ••• Provided that where any person who is r~quired to make an eath professes any faith other than the Christian faith or objects.to being sworn, stating, as a ground of such objection, either that he has no religious belief, such a person shall be permitted to make his solemn affirmation instead of making an oath and such affu,nation shall be of the same effect as if he made an oath. 4 What is glaringly clear is that any person who is required to give evidence in a court, has to do so on oath. I entertain no doubt in my mind that that provision apply to evidence by affidavit like this one~ Mr~ Mbuna argues that, according to the proviso to that section, a Moslem is prohibited from making an oath and that a Moslem is required to make an affirmation. The learned advocate has argued that the requirement is mandatory as the word 11 shall11 has been used. i I I ! have emphasised in the quotation above the material part of that proviso. For the easiness of reference I shall rep1~ducet that relevant part without the intervening words; 11Provided that where any person is required to make an oath professes any ·faith other than the Christian faith, ••• such a person shall be permitted to make his ~.1.emn affi.rmAt ion instead of

makiug an oath11 • . The word ; 11 shall 11 , i~•iiy opinio~, qualifies the words •ibc ppitted" and does i not qualif,.: ·:.• the cla\.l.Se "make his solemn affinnat!~W•. The natural and uhaq/Lguous _lil~ing of that proviso is that a non-Christian witne~ who ~1!$ not want to make an eath must he permitted t.~ ,~cike (' an liffirmation. But if such a person wants to o;ake an oath, there is i~solutely not~ing to stpp him from doing so. t! \ The rationale f•r that proviso is not difficult to find. In '1aking an oath one is required to hold one's Holy Book. It is sacrilegious to a devout Moslem to hold the Holy ~\irran if he i~ unclean, that is, if he is without udhu. Such a Muslim witness will refuse to make an oath and that proviso obliges the court to pemit him to make an affirmation. This does not mean that ,tll Muslims at all times are required to make affirmations only. If a Moslem witness, as the applicant in this case, chooses to make an oath, he d~s not offend that provise. So, this objection must fail • • •• /5 ..; 5 I now turn to the application itself. The .tresent appl.i (. ,.-;ts, the DSM Education Office and Omari Mgeni, were allowed by BUBl~ :;1i;c I J. to amend their plaint. The current respondent, Ni.)C Holding Corporation; asked for a review of that order. A~ BUBESHI, J. disqualified herself I the file was assigned to KA,Jl, J. who, according to the applicant,

dism:i.ssed the application on 21st November, 1997. It is on record that the ruling ;.;as delivereC. ·. ,: the presence of Mrs. K.ashonda"' l . , , ~ e.~vocata for the NBC Ho·! hng Co,r}torat1oJ:1... The matt&?'- t,tUJ1& up b&f.ore ~ , .Y. en 10.3.1\._;\,. when he again delivered the ruling. So, the third respondent r,1,2d .a no,t~ or appeal, an 20th V.a!'chl 1-996, ~ ttR f ll'ot N~poll,tl•.. : ,._ .did so on 23rd lfarch, 1998. The applicant is now -Se.eking to strik-<! out tho&e notice: :·,,. appeal on the ground that they are 11 fake 11 (sic) 'u,~cause they :::; ·.}·, cite 10/3/1998 as the date of the offensive rulfr.13 while, he ,,.\ ~;·,1.,.s, there was no ruling delivered on that date. According to tht, applicant, the ruling was delivered on 21/11/199'?. In their counter-affidavits I both Mr. Mbwi,:-. and Mr. Sh;_, __...;, I 1,/ .t'~ that the ruling was -d.ai-.i..-ercd ~l 101>/1'~,;,3 .And,. :t~-c.fo;·<•..,. they argue, the notices of appeD.l are not !lfaken and that thcj 'i]·e against a ruling delivered on that date. In esr.:;.,nce, the ap(:.::-::;·,1ti, is that the notices of appeal filed on 20th and .?3rd March, ·1·:·,)(l, are out of time because the ruling was delivered on ;:;~1/11/1997. 1 .!'.-.1'J reepondents, on the other hand, contend that tht: notices of ,.,r,~;<.,nl are within time because the ruling was delivered. on 10/3/199/L It was agreed by both parties that

the cnuc of the matl: ;;.· is: when was the ruling, the subject matter of the :.ntended appc,,j, delivered? The answer to that question will determine whethT ,·,r not the notices of appeal were in time. I adjourned the pre .;•_,(:.l.ings, 6 summoned Mrs. Kashonda and called for the High Court ..... ....... file. ~ ~ On the day the hearing resumed, Mrs. Kashonda was available ·and··&he....W<J.:.~ _treated as amicus curii:!,. She remembere·d to bD.ve been at the High Court oh 21)11/97 when KAJii J, delivered the ruling. She dpiained that tlic first re&ponclent is her client and that she has about four hundred briefs of the. NBC Holding Corporation but Jidt t1ia part.iculiu:- o.ne in dispute. She explained further that 0ll that day she was seen in the court corridors and was t6l.d,.t,h;rl:: r&COJ.lected to have told the l e ~ . judg~ ~ t she bad no instructions. All the same, she said that she stayed on in court as the ruling was being delivered 11 could be for curiosity and as I lu.d alreaqy p;ot iJ. em.tr u ....,re were many people11 • She conc~chxl. that her presence during the deliver:r·<"J:f' the ruling might have misled the jud,ge i~to believing that all parties were represented~ She said that she might have o.ommwiicated the ruling to the res.Dcnrlerit verbally bqt definitely DOt in writting. On the day of hearing the application, a wrong High Court file -.I was brought and

so, it was impossible to know 1o1hat exactly is on record. However, when writing this ruling I was in possession of the right court file and I think it is better to reproduce the .i l , relevant entries. ' I ! ' KAJI, J. recorded as follows: .Q_9..urt: Ruling has been delivered in the presence of Omari Mgeni and Mrs. Kashonda learned counsel for the applicants this 21st day of November, 1997. Befor_e CHIPETA, J. on 10th March, 1998, Mr. Uzanda, learned advocate for the first respondent, said: .•• /7 ' '\ ., .. ,· ·--- .,_;- . ... . -•-••~w._ .. ·----- __ .... 7 My Lord I have not heard anything about the nling on my application· for review. I am not aware 1;hat it was delivered on 21.11.97. The learned judge made the following entry in the ct ,_;e file: ----- Court: Ruling of KAJI, J. delivered in chambers this 10th day of March, '1998 in tl,c presence of all counsels ( sic) for• the parties. :tt is abundantly clear that CHIPETA, J. on 10.:,i.1998 said t:,,._;; he had delivered the ruling of KAJI, J. But did he .realy.do tb:?. ":I Didn I t he just re-read the ruling to Mr. Uzanda who I from thr1 be :·; stated that he was not aware of its delivery? The r-•,cord of hii, brother judge clearly states that the ruling 10.s · delivered be.for·:, ,.,,, ,. ; parties on 21/11/1997 • Before KAJI, J. on 27/2/·1997 were Mr. Lebba, lr:arned ar:vo,·,-1,;; for the applicant, Mr. Uzanda 1

learned counsel for the first anr} third respondents and Mr. Shayo, learned advocate fo,• the !J,': .. ,..,c', respondent. The learned judge ordered that a ruling was .goir,g { ,; .I be given on notice. Such notice was issued-oIL.18/1.'.i/199rbut i.L. was only addressed to the third respondent a.."ld not to the other respondents. The third respondent. signed .. it acknowl.0.dging recei: on 19/11/1997. However, he was not present when the ruling \,as delivered. For him the matter is stndght forward sj.nce he Lad notice but did not enter appearance. S·,:, as far as be is concel·c,.,.;-j. 1 I have no doubt at all that the ruling was delivered on 21/11/19')'/ ... ,•,•=·=,, ;,~~~,;!~~rir~!~~!~~j;c,~~ :i.a unqMationabI'y ·c,ut cf time. As for the first and the seco!,:-!. x·asp,:,nden-':s th<: record is ,.:~:::-,,).' that they were not served with summonses for th•.:l rul:i ng. Th, '.t e: ·• r,,,(t . ~s 0 O.XX R.1 which provides: /"' II • i> I ~~- ,_ ' •~r . ' 8 The court, after the case has been heard 1 shall pronounce judgment in open court, either at once er on some future day I of which due notice shall be given'' to the parties or their advocates. However, the matter is complicated by the presence of Mrs. Kashonda at the delivery of the ruiing. There is nothing in the record to show that KAJI, J. knew that she was not for the respondents, as she recollected in this Court to have

told,the learned judge. So, the learned judge took her to be for the respondents and went on to .1 deliver the ruling on that day, 21/11/1997. In that case, did CHIPETA, J., then, deliver any ruling on 10/3/1998? I find it very difficult to say yes. In fact what the learned judge did is not compatible with O.XX R.2 which states: A judge or a magistrate may pronounce a judgment written but not pronounced by his predecessor. The record is palpably clear that KA.JI, J. delivered the ruling on 23/11/1997. So, the most that CHIPETA, J. did was to re-read the ruling for the benefit of Mr. Uzanda who claimed that he was not aware of it. The learned judge, as he seemed to have been satisfied that Mr. Uzanda was not aware of the ruling, could have taken that to be sufficient reason for extending time within which to file a notice of appeal. Of course, that would have been after there was an application to that effect. But there was no such application instead there was an informal application by Mr. Uzanda for leave to appeal. That was granted despite the objection of Mr. Lebba demanding a formal application which he could 11 formally oppose". However, that did extend the time within which to file the notice of appeal. So, the notice of appeal fiied by the first respondent on 23/3/1998 is obviously out of time. • •• /9 . 'I ... r' r. 9 In his counter-affidavit in paragraph 6; Mr. Shayo

erroneou.'!;ly states that Mr, Lebba for the applicant opi:,osed the infonnal application for leave to appeal preciselJ- on the ground that it was time barred. That was not so. Mr. Lebba objected to the informal application and prayed for a formal one. That ground might have featured if Mr. Lebba 1 s request was granted, However, that .iG conjecture. Again in paragraph 5 Mr. Shayo talks of :1the alleged earlier •(' reading /.of the- rulinu by Mr. Justi_g~ Kaji on 21/11/1997 11 and maintains that n@odate I am not aw,.1re that the ruling was read on 21/11/1997 as alleged' 1 , The use of the word ilallrJged11 is unfortunate to say the ieast because the court record is very cl0,u··, I asked both learned «>unsel whether they were_ impeaching the authenticity of tha record and they .said that they were not. j: It might seem as if I have been seating on an appeal against what CHIPETA, J. did on 10/3/1998,. However, all that I have been doing is, as agreed by all the parties, to determine when was the ruling of KAJI I J. delivered and thereby be in a_ .position to say whether or not the notices of appeal of all three respondents arc in time. Another observation I wish to make is that since the notice:.: ._,r appeal have been filed net much has been done to see that the apr,-:,:.,l;_; are concluded. I am aware that letters requesting certified copy ,,,f records were received by the

Registrar ~f the High Court. But I ,:;,,1 al8o aware that CHIPETA, J. gave an ~Fder on 10th March, 1998 adjourning the matter sine die pending the intended appeal •. So, the case filed in 1994 in the High Court is still pending waiting f;:;;~ this intended appeal which for the last eighteen menths has made 2.,::, progress. Court processes should nnt be used to delay administrat·:0:1 of justice. . t, 10 Therefore, the application for the striking out the notices of appeal filed on 12th and 23rd March, 1998, is allowed with costs. DATED at DAR ES SALAAM this 2nd day of November, 1999~ A.S.L. RAMADHANI

JUSTICE OF APPEAL I certify that this is a true copy of the original. :9.t¾!~J;

SENIOR DEPUTY REGISTRAR