MCA 31250 2024 GIORGIS ANAGNOUSTOU

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 31250 OF 2024 GIORGIOS ANAGNOSTOU .......................……………………….1ST APPLICANT OURANIA ANAGNOSTOU ……………………………………………2ND APPLICANT GIORGIOS ANAGNOSTOU ......................……………………….3RD APPLICANT VERSUS REGISTRATION, INSOLVENCY & TRUSTEESHIP AGENCY …………………………………..…….1STRESPONNDENT THE ADMINISTRATOR GENERAL ……………………………..2ND RESPONDENT YONO AUCTION MART & COMPANY LTD …….…..…………3RD RESPONDENT HON. ATTORNEY GENERAL ……………………………………..4TH RESPONDENT RULING 14th January & 10th February, 2025 BWEGOGE, J.: Upon being served with chamber summons and in tandem with filing counter affidavit, the respondents raised the preliminary objections on points of law as hereunder mentioned: 1. The application is incompetent and bad in law for not being supported by the affidavits of the 1st and 3rd applicants. 1 2. The application is incompetent and bad in law by being supported by a defective affidavit containing a defective verification clause. 3. The suit is bad in law as it has been filed in contravention of the mandatory provision of rule 4(1) (a) and (b) of the Interpretation of the Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022 [G.N. No. 66 of 2022]. At the hearing of the objections preferred herein, the applicants had the services of Mr. Simon Lyimo; and the respondents were represented by Mr. Njoma, learned state attorney. Respecting the 1st objection, Mr Njoma argued that it is the law that where the applicants are numerous, all of them should swear a joint affidavit; or otherwise, one of them should obtain authorization to swear on behalf of the others in compliance with the provision of Order XLIII, rule 2 of the Civil Procedure Code [Cap. 33 R.E. 2019] (henceforth “the CPC”) which requires any application to be made by chamber summons and supported by an affidavit of the applicant(s). The case of Ahmadi Issa Ching'ang'a & Others vs. Tanzania Ports Authority (TPA) & Others (Civil Application No. 8/07 of 2021) [2024] TZCA 497 was cited to bolster the point. 2 Further, the counsel argued that having gone through the pleadings filed by the applicant, he found that there are three applicants herein; however, the affidavit supporting this application is sworn by the 2nd applicant only. And there is no deposition disclosing that the 2nd applicant has been authorised by the 1st and 3rd applicants to represent them. The counsel asserted that the anomaly is fatal in law, rendering the application liable to be struck out. Pertaining to the 2nd objection, the counsel submitted that the provision of Order XLIII, rule 2 of the CPC requires any application to be made by chamber summons and supported by an affidavit. However, the supporting affidavit, in this case, is supported by a defective affidavit for failure to disclose, in the verification clause, which paragraphs of the affidavit were deponed in the deponent’s knowledge, belief or on information obtained from another source. That on page 18 of the affidavit, the deponent purports to verify that what was deponed in the several paragraphs of the affidavit was on the knowledge and belief of the deponent without specifying the exact paragraphs deponed on personal knowledge or belief. Moreso, the counsel charged that the deponent purported to verify the affidavit on behalf of others. 3 The counsel opined that the defects highlighted above are fatal, rendering the whole affidavit defective as the source of information cannot be obtained collectively but distinctively. The case of Anatoli Peter Rwebangira vs. the Principal Secretary, Civil Appeal No. 548 /04 of 2018, CA (unreported) was cited to buttress the point. Lastly, regarding the 3rd objection, the counsel alleged that the pleadings filed hereto were written in the English language without corresponding pleadings in the Kiswahili language as required by the law. That the basis of this objection is that in 2021, the parliament passed the Written Law Misc. Amendment Act No. 1 of 2021 which made mandatory the use of Kiswahili language in Court. And the Chief Justice issued the G.N. No. 66 of 2022 (supra) which specifically provided that Kiswahili is the language of the court whereas rule 4 thereto instructs that a party filing pleadings in the English language, should likewise, file extra corresponding pleadings in the Kiswahili language with reasons for adopting the English language. The case of Ibrahim Pius Kaganisha and Gibert H. Mahumba vs. Bela Karumba and the Municipal Council of Kigoma Ujiji (Misc. Land Application No. 29 of 2022) [ 2023] TZHC 1723 was cited to reinforce the point. 4 Based on the above arguments, the counsel prayed this court to sustain the objection and dismiss the application herein with costs. In reply, Mr Lyimo contended that the objections raised by the respondents herein are devoid of merit and liable to be overruled. Respecting the 3rd objection, the counsel contended that the provisions of rule 4(1) of the Interpretation of the Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022 allow the applicant to file pleadings in English language where circumstances so required and give reason for such disposition. And, rule 3 thereto provides for circumstances for the use of the English language in Court. That it is under the provided circumstances that the pleadings herein were filed. Further, the counsel asserted that the pleadings filed hereto are clear in that the 1st applicant is a citizen of Switzerland. Hence, conducting proceedings in the Swahili language would have prejudiced the applicants who are non-Swahili speakers. In tandem with the above, the counsel contended that the case cited to buttress the relevant objection does not apply to the circumstances of this case; hence, should be disregarded. Otherwise, the counsel opined that if this court finds it mandatory that a corresponding version of the pleadings in Kiwahili language be filed, the 5 remedy is to instruct the applicant to file the respective document, not dismissal of the suit. The case of Kassanga H. Kasanga & Another vs. Stephen Wandwi Chacha (Civil Appeal N. 2279 of 2024) [2024] TZHC 6157 was cited to bring home the point home. Pertaining to the 2nd objection, the counsel contended that the provision of Order XLIII, rule 2 of the CPC requires any application to be made by chamber summons and supported by an affidavit of the applicant; the rest of the arguments are extraneous matters as they duly complied with the requirement of the law. That the case of Anatoli Peter Rwebangira vs. the Principal Secretary (supra) cited to bolster the objection is distinguishable from the case herein on the ground that the impugned application contained no verification clause. The counsel asserted that the verification clause is proper in law. Otherwise, the counsel opined that if this court finds the respective verification clause defective, the remedy should not be striking out and, or dismissal but an order for amendment. The case of Ahmadi Issa Ching'anga & Others vs. Tanzania Ports Authority (TPA) & Others (Civil Application No. 8/07 of 2021) [2024] TZCA 497 and Michael Clement Juma vs. Abdalla Mfaume Mdongwa & 3 Others (Misc. 6 Land Application 165 of 2022) [2022] TZHC LandD 12495 were cited to validate the argument. Lastly, concerning the 1st objection, the counsel submitted that the provision of Order XLIII, rule 2 of the CPC, literally, requires the chamber application to be supported by an affidavit, not affidavits. That the case of Ahmad Issa Chingánga and Two Others vs. Tanzania Port Authority and 2 Others (supra) cited to bolster the 1st limb of the preliminary objections is distinguishable from this case as it was based on the rules applicable in the superior Court which requires each of joint applicants to swear affidavits in support of the application lodged in the Court. Responding to the argument in that there should have been authorisation for the deponent in the supporting affidavit to swear the affidavit on behalf of the 1st and 3rd applicants, the counsel contended that this fact needs evidence; hence, renders the respective objection invalid in strict legal sense. Based on the above accounts, the counsel prayed the objections to be overruled. 7 In rejoinder, Mr Njoma reiterated his submission in chief. Moreso, he insisted that the case Ahmad Issa Chingánga and Two Others vs. Tanzania Port Authority and Two Others(supra) is a guiding principle in the circumstances akin to this matter wherein it was insisted that joint applicants should equally swear supporting affidavits. That the application herein is not supported by the appropriate affidavit for want of joint affidavits. Otherwise, the deponent in the supporting affidavit should have been authorised to depone on behalf of others. Pertaining to the prayer for amendment in lieu of striking out, the counsel contended that the prayer is tantamount to defeating the objection(s). This is all about the submissions made by the counsel for the parties hereto. Now, I proceed to delve into the preliminary objections raised by the respondents herein commencing with the 3rd objection. The charge herein is that the matter herein is bad in law for contravening the mandatory provision of law instructing the appropriate language to be employed in the pleadings instituted in the Court. Unarguably, it is the law of this land, as provided forth by the provision of section 84 A of the Interpretation of Laws Act [Cap. 1] that the language of the court and other bodies charged with duties of dispensing justice shall be in Kiswahili. Moreso, rule 4(1)(b) 8 of The Interpretation of Laws (Use of English Language in Courts) (Circumstances and conditions) Rules, [GN.No.66 of 2022] instructs that a party who intends to initiate proceedings shall file his pleadings in English language with their corresponding translation in Kiswahili language. See the decisions of this court in Ibrahim Pius Kaganisha and Gibert H. Mahumba vs. Bela Karumba and the Municipal Council of Kigoma Ujiji (supra) and Kassanga H. Kasanga & Another vs. Stephen Wandwi Chacha (supra). It is obvious that the applicants herein have instituted their pleadings in English language without corresponding pleadings in Kiswahili language as instructed by the law. Thus, I will not tarry to agree with the respondent’s counsel in that the applicants have not complied with the aforementioned rules. However, as rightly submitted by the applicant’s counsel, the alleged procedural sin is not such fatal as to render the case liable for dismissal. The alleged omission may be cured by affording room to the offending party to comply with the law. 9 I proceed to tackle the 1st and 2nd preliminary objections conjointly. Respecting the allegation that the application is incompetent and bad in law for not being supported by the affidavits of all applicants in the case. While subscribing to the applicant’s counsel in that the case of Ahmad Issa Chingánga and Two Others vs. Tanzania Port Authority and 2 Others (supra) cited to bolster the 2nd limb of the objections raised herein is distinguishable from this case as it was based on the rules applicable in the superior Court which requires each of joint applicants to swear affidavits in support of the application lodged in the Court; yet I agree with the respondent’s counsel in that the deponent purported to swear the affidavit on behalf of the 1st and 3rd applicants. In the same vein, at the footing of the document (verification clause) she employed the term “we” whereas she remained the sole deponent thereof. Suffice it to say that no deposed fact in the supporting affidavit depicts that the deponent was granted authority by the remaining applicants to depose facts on their behalf. On the date of hearing of this matter, the deponent (2nd applicant) enlightened this court that she has power of attorney to represent others; however, as I mentioned earlier, no such fact was disclosed in the impugned affidavit. It was after the objection was raised that the 2nd 10 applicant filed a document supporting her assertion that she has a power of attorney to swear affidavit and institute proceedings in this court on behalf of the 1st and 3rd applicants. Thus, I find the charge in the 1st limb of the objections raised herein with substance. Lastly, with respect to the allegation that the application is incompetent and bad in law by being supported by a defective verification clause, it was argued by the respondent’s counsel that the deponent failed to disclose, in the verification clause, which paragraphs of the affidavit were deponed in the deponent’s own knowledge, belief or on information obtained from another source. It was also argued that the source of information cannot be obtained collectively but distinctively. The applicant’s counsel maintained that the respective verification clause is proper in law. I have taken labour to go through the lengthy supporting affidavit sworn by the 2nd applicant herein and scrutinized the verification clause alleged to be defective. I find it pertinent to reproduce the relevant verification clause for ease of reference: “I, Ourania Anagnostou, DO VERIFY THAT all what is stated under paragraphs 1, 2, 3, 4, 5, (5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7 (5.7.1, 5.7.2) 6, 7, 8, 9, 10, 11, (11.1, 11.2, 11.3, 11.4, 11.5) 12, 11 (12.1 (12.1.1, 12.1.2, 12.1.3), 13,(13.1), 14,(14.1, 14.2, 14.3, 14.4, 14.5,(14.5.1, 14.5.2)) 15, 16, (16.1, 16.2), 17,(17.1, 17.2), 18,(18.1, 18.2, 18.3), 19, 20,21,22, 23, and 24 is true according to our own knowledge and belief.” [Emphasis added]. I have directed my mind to the case of Anatoli Peter Rwebangira vs. the Principal Secretary (supra) wherein the Apex Court expounded: “As a general rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes either of own personal knowledge or from information which he believes to be true. See- UGANDA vs COMMISSIONER OF PRISONS, EXAPARTE MATOVU [1966] 1 EA 514.” Further, the Court borrowing a leaf from the case of Director of Public Prosecutions vs. Dodoli Kapufi & Another (Criminal Application 11 of 2008) [2011] TZCA 46 defined the term “affidavit” as thus: " ... a statement in the name of a person called deponent by whom it is voluntarily signed or sworn to or affirmed It must be confined to such statements as the deponent is able of his own knowledge to prove but in certain cases may contain statements of information and belief with grounds thereon. " [emphasis supplied]. And, the Court concluded thus: “It is thus settled law that, if the facts contained in the affidavit are based on knowledge, then it can be safely verified as such. However, the law does not allow a blanket or rather a general verification that the 12 facts contained in the entire affidavit are based on what is true according to knowledge, belief and information without specifying the respective paragraphs. In the present application...... it is not possible to decipher the facts which are true based on the applicant's knowledge and those based on his belief...... without the specification, neither the Court nor the respondents can safely gauge as to which of the deponed facts are based on the applicant's own knowledge and what are based on his belief. In this regard, we agree with the learned Senior State Attorney that, the verification clause of the applicant's affidavit is rendered defective which adversely impacts on the entire affidavit which is also rendered defective. “ Hence, based on the revisited holding above, I am of the considered view that the verification clause in the supporting affidavit wherein the deponent declared that “all what is stated under paragraphs 1-24 is true according to our own knowledge and belief” offends the law for failure to clarify which paragraphs bearing sworn facts she has verified are true to her knowledge and which are true to her own belief. I find the 1st and 2nd preliminary objections with substance. Now, the pertinent question arises herein; what is the remedy? The applicant’s counsel opined that if this court finds the 2nd objection with substance, they should be allowed to amend the pleadings to cure the defect whereas the respondent’s counsel objected to the prayer contending that grant of the respective prayer is tantamount to pre- empting the objection(s) raised herein. Fortunately, the issue on whether 13 a defective affidavit is amenable to amendment is not nebulous in our jurisdiction; there are numerous decisions of the superior Court on this issue. One of the cases to which the appellant’s counsel directed the mind of this court is Ramadhani Mikidadi vs. Tanga Cement Company Ltd (supra) wherein the court following previous decisions in the case of DDL Invest International Limited vs. Tanzania Harbours Authority and Two Others, Civil Application No. 8 of 2001 and Sanyou Service Station Ltd vs. BP Tanzania Ltd (Now Puma Energy (T) Ltd, Civil Application No. 185/17 of 2018 (both unreported) opined thus: “We are aware that a defective verification is amenable to amendment by the applicant upon being granted leave by the Court. “ Moreso, in the case of Sanyou Service Station Ltd vs. BP Tanzania Ltd (Now Puma Energy (T) Ltd (supra) the Court found that the deponent didn’t verify at all some of the paragraphs in the supporting affidavit and the court was called upon to find the affidavit defective; hence, incompetent and liable to be struck out. The court opined: “With respect, this Court has previously decided on the point in DDL Invest International Limited vs. Tanzania Harbours Authority & Two 14 Others, Civil Application No. 8 of 2001 (unreported), and a preliminary objection had been raised. A little more needs to be stated about that case so as to appreciate its relevance or otherwise to the instant. In that case, the late Kisanga, J.A. (as he then was) agreed with the position that had been taken by the Court in its previous decision that whether or not to allow a party to amend an affidavit with a defective verification is a matter in the discretion of the Court. The previous case he referred to is University of Dar es Salaam vs. Mwenge Gas and Lub Oil Limited, Civil Application No. 76 of 1999 (unreported). In digression, I need to have it noted that in The University of Dar es Salaam case (supra) the Court was dealing with a situation worse than the present, because in that case there was no verification clause at all. So, in DDL Invest (supra) the following passage was reproduced from the University of Dar es Salaam (supra):- ‘Bearing in mind what was stated by this Court in Salim Vuai Foum's case (supra), it would appear that a Court has discretion to allow a deponent of an affidavit lacking a verification clause to amend the affidavit I take it, that by using the word 'amend' this Court meant that the deponent can; if circumstances justify it\ grant leave to the deponent to file an affidavit having a verification clause.’ I wish to emphasize that from the foregoing, it can safely be concluded that the Court's powers to grant leave to a deponent to amend a defective affidavit, are discretionary and wide enough to cover a situation where a point of preliminary objection has been raised and even where the affidavit has no verification clause. Undoubtedly, as the rule goes, the discretion has to be exercised judiciously. On the advent of the overriding objective rule introduced by the Written Laws (Miscellaneous Amendments) (No. 3), Act, 2018, the need of exercising the discretion is all the more relevant. ......True, rules of procedure should be followed as 15 rightly submitted by Mr. Rwazo, but not without some sense of reasoning and justice.” [Emphasis mine]. Being guided by the afore revisited decisions of the Apex Court and taking into consideration the circumstances of this case filed under the certificate of urgency; and having considered that if the matter herein is struck out, the applicants would be constrained to re-institute the same, I find it in the interest of justice, to invoke the overriding objectives under sections 3A and 3B of the CPC and allow the applicants to amend their pleadings in compliance of law and cure the anomalies discerned in the supporting affidavit so that the matter would be conclusively determined on merit. In fine, the applicants herein are hereby afforded 14 days in which to file the amended pleadings. I so order. DATED at DAR ES SALAAM this 10th February, 2025. O. F. BWEGOGE JUDGE 16