Amsons v Viwanda and AG

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MAIN REGISTRY AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 3066 OF 2025 IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977, AS AMENDED AND IN THE MATTER OF THE BASIC RIGHTS AND ENFORCEMENT OF DUTIES ACT, CAP 3, R.E. 2002 AND IN THE MATTER OF THE BASIC RIGHTS AND ENFORCEMENT OF DUTIES (PRACTICE AND PROCEDURE) RULES, GN 304 OF 2014 AND IN THE MATTER OF A PETITION TO CHALLENGE THE PROVISIONS OF SECTION 18A (1) (2) [ITEM 7 OF THE SCHEDULE] OF THE IMPORTS CONTROL ACT, CAP 276 R.E. 2002 AS AMENDED BY THE FINANCE ACT, 2024 IMPOSING INDUSTRIAL DEVELOPMENT LEVY ON CEMENT CLINKERS AS BEING UNCONSTITUTIONAL BETWEEN AMSONS INDUSTRIES TANZANIA LTD…………………….. FIRST PETITIONER FORTUNE CEMENT TANZANIA LTD…………………………. SECOND PETITIONER AND HONOURABLE MINISTER OF TRADE & INDUSTRIES…… FIRST RESPONDENT HONORABLE ATTORNEY GENERAL ………………………… SECOND RESPONDENT 2 RULING March 10th & 28th, 2025 Morris, J This petition, by Amsons Industries Tanzania Ltd and Fortune Cement Tanzania Ltd, was welcomed by a preliminary combat from the two respondents above. The latter raised a preliminary objection (the PO) on three grounds of law that the petition is incompetent for: contravening the provisions of section 8 (2) of the Basic R ights and Duties Enforcem ent Act , Cap 3 R.E. 2019 (BR ADEA ); lack of the petitioners’ locus standi; and being supported with an affidavit containing a defective verification clause. Briefly, both petitioners - the corporations, are engaged in owning and/or operating grinding cement production factories within Tanzania. Their plants (factories) are, however, without integrated plants for production of cement clinkers. Allegedly, the petitioners primarily depend on imported clinkers because the locally produced clinkers are not only from their competitors; and/or subject to compromise in quality; but also, they face challenges associated with unstable or biased pricing from the producers. 3 Manifestly, through section 18A of the Finance Act , 2024 section 18A (1) and (2) of the I m ports Control Act, Cap 276 was amended. The amendment imposed the industrial development levy to clinkers which imposition aggrieved the duet body corporates above. The petitioners contended that the subject amendment contravened Articles 13(2), 21(2) and 22 of the Constitution of United R epublic of Tanzania , 1977 (CUR T ); and was thus, unconstitutional, null and void. As alluded to above, the respondents have contested the petition on two pillars: its competence (vide the PO) and the petition’s merit. This ruling is in regard to the former contention. When the matter came for hearing of the PO, the petitioners were represented by Messrs. Alex Mgongolwa, Seni Malimi and Kalaghe Rashid, all learned Advocates. However, Ms. Narindwa Sekimanga and Ms. Lucy Kimario, learned Senior State Attorney and State Attorney respectively, represented the respondents. The issues to be determined by the Court in resolving the PO are correspondingly framed for every ground of the PO. The first ground involves a resistance against the petition on the basis that it contravenes the provisions of section 8 (2) of BR ADEA . It was 4 the submissions of Ms. Sekimanga hereof that, the petitioners were challenging the constitutionality of section 18A of the I m ports Control Act , (as amended by the Finance Act , 2024) because it imposes the industrial development levy on cement clinkers. She however, instantaneously argued that the basis of the petitioners’ contention was their allegation that the impugned provision gave competitors in the cement production industry unfair advantage in the market. She cited paragraph 8 of the originating summons to buttress the petitioners’ assertion that pricing of the locally-produced clinkers was high. Thus, the excessive prices prejudiced cement factories which have no clinker producing facilities, the petitioners inclusive. That is, the latter were not able to effectively compete with their counter-parts. According to the respondents, the foregoing allegations by the petitioners could be adjudicated before the Fair Competition Commission (elsewhere in this ruling, FCC) under the Fair Com petition Act , 2003 (the FCA ). Thus, the respondents’ attorney submitted further that, the petitioners’ option to channel their grievances to this Court instead of FCC contravened section 8 (2) of BR ADEA . To the respondents, BR ADEA 5 provides that this Court should not exercise its powers if there are means of dealing with a party’s grievances under any other law. It was insisted further that FCC was the apposite body to assess and evaluate facts of unfairness as alleged by the petitioners herein. The respondents concluded that, powers of this Court were wrongly invoked because constitutional petitions must be reserved for momentous disputes; and that the petitioners herein had the alternative remedy under the FCA . Two unreported cases of Godfrey W atson M w akasege v TLS and Another , Misc. Civ. Appl. No. 23 of 2021 (page 17 para 2); and Tanzania Cigarettes Com pany Ltd v Fair Com petition Com m ission & AG , Misc. Civ. Cause No. 31 of 2010 (pages 21-23) were cited hereof. In the latter case, the petitioners therein were challenging the provisions of section 69 of FCA as being unconstitutional. This Court held that the raised contentions ought to be channeled through FCC instead of the Constitutional Court. To conclude on this ground, the respondents’ counsel prayed for this Court to merit the objection and proceed to strike out the petition herein. 6 The petitioners generally contested the PO. Regarding the first ground, Advocate Mgongolwa submitted that, the respondents’ view that the petitioners’ pleadings suggested availability of the alternative remedy was misconceived and narrow. That is, the mandate of FCC in this connection was being misapplied. He also stated that, the pleadings herein were categorical that the petitioners were challenging the constitutionality of the already operating statutory provision. He cited paragraph 12 of the first petitioner’s affidavit in support of the petition and argued that it clearly unveiled that the impugned provision of the law was unconstitutional. Further, it was argued that the case of Tanzania Cigarettes Com pany v FCC (supra) was distinguishable as it involved the petitioner with a complaint against FCC; which aspect indicated that the case was adjudicated on a totally different environment. Hence, in the present matter the petitioners have no alternative remedy other than this Court. He also asserted that the unconstitutionality that was visibly stated in the pleadings related to discrimination. That is, in the same market, there are producers producing clinkers locally and those who do not; and that the cited law discriminatorily disfavoured those in the latter category. 7 Hence, the ones producing the clinkers received preferential treatment than their non-producing counterparts. Likewise, he submitted that a quick glance at the remedies sought in the petition would lead this Court to an obvious assessment of whether the quasi-judicial body (FCC) can legally grant them. In this regard, the petitioners were unrelenting that, their case was not about competition in the market but discrimination value of the law. To the petitioners, no quasi-tribunal or commission can declare the law unconstitutional; let alone to order expungement of the provisions therein out of the statute for being unconstitutional. Thus, they contended the PO was a pure misconception of the petition because the respondents decided to pick their own cause of action and criticise it. Furthermore, the petitioners emphasised that it is a cause of action seeking the declaration of the law unconstitutional under the exclusive prerogative of this Court. Hereof, he cited Articles 30 (4) and 64 (5) of CURT and contended that the matter at hand was properly before this Court. Hence, he concluded by stating that the first ground of PO lacked merit and that it should be overruled thereby allowing the petition to sail to the next stage – hearing on merit. 8 By way or rejoinder, the respondents maintained that the first ground was pregnant of merit because the petitioners had the alternative remedy through the FCA for them to achieve the levelled playing ground in the cement industry. That is, the petitioners alleged that the fellow competitors were at a favourable advantage which trade concern can be adequately resolved by FCC. I have dispassionately considered the submissions of parties herein. I also have read the originating summons; affidavits in support of the petition; and the counter affidavit. The question which the Court is called upon to determine hereof is whether the petition is incompetent in purview of section 8(2) of BR ADEA. The respondents argued that the petitioners’ complaints were capable of being adjudicated before FCC. Hence, in the presence of this alternative remedy to the petitioners, this matter was accordingly incompetent. The foregoing section partly bars this Court to exercise its jurisdiction herein if “it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law”. That means that, if the petitioner’s reliefs can be pursued under any 9 law other than BRADEA , such person must resort to the former law. This position is also provided under section 4 (5) of BRADEA . In no uncertain terms thus, in order to invoke BR ADEA hereof the petitioners’ grievances must exclusively fall within this legislation. The philosophy behind the foregoing restriction, in my view, is that the Constitution being the mother of other laws; should not compete to redress parties’ contentions with such other legislation whose legitimacy is drawn from it (the constitution). Indeed, it is also a settled principle that all Acts of Parliament are presumed constitutional. On such reasoning, this Court rightly stated in the Tanzania Cigarettes Com pany v FCC (supra) at page 33 that BR ADEA “should not be allowed to make other statutory remedies nugatory”. From the background set above, the obvious question in the matter at hand is, can the petitioners’ grievances herein be redressed “under any other law”? The respondents think in affirmation; the petitioners disavow; the Court has to resolve this rivalry. So, I have taken liberty to read the originating summons in order to see the gist of the exact petitioners’ grievances therein. The petitioners state therein inter alia that, they are 10 seeking the Court to declare that: section 18A in the Finance Act , (amending the I m ports Control Act and imposing industrial development levy), contravenes Articles 13(2), 21 (2) and 22 of CUR T ; it is unconstitutional; it is null and void; and to order its expungement from the requisite statute. In line with section 6 (c) of BR ADEA , the petition states the grounds upon which the foregoing redress is sought. Discernibly, there is one (1) general ground with five (5) specific grounds. The prime ground is averred as “the impugned provisions of law is discriminatory and biased”. The latter grounds are paragraphed as (a) – (e). Seriatim, the petitioners allege that the impugned law illegally favours part of the cement factories in the industry; it abrogates the principle of equality before the law; it was promulgated without the requisite consultation of petitioners; it discriminates the cement producers with no clinkers; and it does not qualify for the constitutional positive bias, discrimination and favouritism. Evidently, none of the above grounds expressly portrays that the petitioners are seeking the order against “unfair competition” howsoever. Thus, the respondents’ fervent contention along this line is without adequate 11 excellence. Nevertheless, I am appreciative of the allegations under paragraph 8 of the “the particulars of facts” in the petition to the extent that the effect of the impugned section herein is to prejudice or undermine the petitioners’ competitive edge in the domestic cement market. While I am on all fours with the respondents that, grievances pertaining to fairness of competition can be redressed by FCC under the FCA , it is my further view that the gist of the petition at hand falls outside such scope. I will elaborate. To begin with, the facts in the petition are narrated to support the grounds in the petition. Further, the grounds are expressed thereof so as to lay the foundation for the reliefs sought. In other words, the scope of the petition is set by the grounds not facts therein. In addition, while facts mandatorily call for evidence to prove them, not all grounds must be proved by production of evidence. Section 6 (d) of BR ADEA enjoins the petitioners to state particulars of the facts only (not evidence). Besides, if the respondents’ asseveration hereof were the position the to go by, the grain of their PO would be rendered nugatory. It is a long- settled law that the PO must be on a pure point of law [M ukisa Biscuits 12 M anufacturing Co. Ltd v W est End Distributors [1969] EA 696; Karata Ernest and Others v AG , Civ. Rev. No 10 of 2010; M eckm ar Corporation (M alaysia) Benhard (in liquidation) v VI P Engineering and M arketing Ltd and 3 Others, Consolidated Civ. Applications. Nos. 190 and 206 of 2013; and M ount M eru Flow ers (T) Ltd. v Box Board (T) Ltd ., Civ. Appl. No. 260 of 2018 (all unreported)]. To further complement the above reasoning, parties to the Court are bound by own pleadings [see, Salim Said Mtomekela v Mohamed Abdallah Mohamed , Civ. Appeal No. 149 of 2019; and Scan Tan Tour v The Catholic Diocese of Mbulu , CoA Civil Appeal No. 78 of 2012 (both unreported)]. Hence, it would be inappropriate to infer some facts which are not expressly pleaded by a party in order to determine his cause of action. Moreover, the respondents did not explicitly argue or unveil that there were other laws providing that reliefs sought in the present petition can be adjudicated elsewhere. Likewise, it was not exposed that FCC had the mandate to declare the provision in/or the law unconstitutional. In this regard I am guided by the firmly-settled principle that jurisdiction of courts, tribunals, commissions or bodies to adjudicate a is a 13 statutory creature [Bryson Bw ire M bonde v Tanzania R evenue Authority , Civ. Appeal No. 88 of 2018; and R.S.A. Ltd v Hanspaul Autom echs Ltd & Another , Civ. Appeal No. 179 of 2016 (both unreported)]. Accordingly, the raised issue above is disaffirmed. On this basis, the first ground of PO is disallowed. Regarding the second ground, the respondents submitted that the petitioners are registered companies in Tanzania. Thus, complaints that the impugned provision violated their rights under Articles 13(2), 21(2) and 22 of CUR T were out of scope. That is, they were ineligible to complain under the subject Constitutional provisions which guarantee the right against discrimination. Hereof, the counsel submitted that, discrimination for the purpose of Article 13 of CUR T relates to colour, religion, tribe, gender, etc. as defined under Article 13(5) (supra). To the respondents, the subject Article defines the discrimination with limited scope which throws the petitioners herein out of the squares of the law. That is, it was impossible for the corporate body to be discriminated in the elements stated under the said constitutional provision. 14 Consequently, it was submitted that the petitioners do not enjoy the requisite locus standi to petition for the purposes of remedying the alleged discrimination. Reference was made to Tanzania Epilepsy Organisation v AG , Misc. Civ. Appl. No 5 of 2022 (unreported, pages 15-20) where the petitioner-NGO acting on behalf of the people with epilepsy challenged the constitutionality of section 39(a)(ii) of the Law of M arriage Act , Cap 29 R.E. 2019. This Court held that the NGO did not have the locus standi because it could not be affected personally to be eligible for filing the grievances in the Constitutional Court. Consequently, the respondents submitted that the rights under Articles 13, 21 and 22 of CUR T were Godly- given to human beings in total exclusion of legal persons (corporations). On this basis, they prayed for the petition to fail accordingly. Regarding the second ground, the petitioners argued that they were seized with locus standi. To them, this common law principle simply implies the right of a party to bring an action; or his legal capacity to seek judicial enforcement of a right. Reference in this regard was made to the case of Lujuna Shubi Balonzi v R egistered Trustees of Cham a cha M apinduzi [1996] TLR 203. Blending the scope of this principle to the 15 matter at hand, the petitioners argued that the petition demonstrated in great details how their rights were discriminatorily infringed than the other players in cement industry. In addition, the respondent’s contention that the rights under review could not be enjoyed by the corporate person was placed under considerable attack. The petitioners submitted hereof that, such argument was a total misapprehension of the law. To their view, this matter was long settled in this country. I was invited to refer to LHR C & 2 Others v AG , Misc. Civ. Cause No. 77 of 2005 (unreported, from page 8); and Christopher M tikila v AG [1995] 31, at page 32 in which cases it was held that legal persons can and should enjoy the right against discrimination. Besides, according to the petitioners, the definition of discrimination under Article 13(5) of CUR T was not too limited in scope as argued by the respondents. To the former, the scope of the said Article encompasses protection of “the needs, rights or other requirements” in favour of the petitioners. In other words, if one takes the purposive approach of the subject Article, the conclusion would be that, the petitioners ought to be protected because their (corporate) needs were grounded in the production 16 of cement for sustainability. Hence, to the petitioners, the second ground of PO equally failed on the basis of being flawed. Rejoining for the second ground, the respondents reaffirmed that the definition of locus standi in the case of Lujuna Balonzi case (supra), was correct. Nevertheless, they argued that the petitioners lacked such right because the latter were alleging that the law was discriminatory while the constitutional definition of discrimination is limited to natural persons only. It was maintained that legal persons do not have the attributes stated under Article 13(5) of CUR T . Regarding the of case of LHR C (supra) cited by the petitioners, the respondents countered by asserting that the court found for the petitioner’s locus standi because the NGO was involved in the then- legitimate public litigation. Further, to the respondents the company cannot enjoy all the rights in the constitution. Accordingly, M tikila’s case (supra) was not favourable to the opposite party because Article 30 (3) of CUR T is definite of the intended beneficiaries (humans not corporate beings). In view of the parties’ rivalry submissions above, the Court will determine whether the petitioners, as body corporates have the locus standi to petition for the constitutional rights under Articles 13 (2), 21 (2) and 22 17 of CURT . In the interest of succinctness hereof, parties’ common grounds are that: the principle of locus standi implies the right of a person to sue [P eter M palanzi v Christina M baruku , Civ. Appeal No. 153 of 2019 (unreported, at pages 5 and 6) and Lujuna Shubi Ballonzi (supra)]; the CUR T provides for and guarantees rights; the petitioners herein are juristic persons; and Article 30 (3) of CURT together with section 4 of BR ADEA allow any person claiming that his right or duty owed to him has been, is being or is likely to be violated by any person in the country to institute proceedings for redress in this Court. However, parties joined issues with each other regarding the body corporate’s legal mandate to petition against discrimination or bias of the law under the Constitution. The respondents’ stand was that the companies cannot be discriminated because such right is exclusively reserved for the individuals who are natural human beings. However, the petitioners insisted that the rights covered in their petition can be enjoyed and enforced by corporations. 18 Before I determine this issue, I will fleetingly elucidate on the plexus between the incorporation and rights. A body Corporate, upon being registered, becomes a legal person distinct from its members [see, for instance, section 15 (2) of the Com panies Act , 2002; Salom on v Salom on & Co. Ltd (1897) AC 22; Yusuph M anji v Edw ard M asanja and Another , [2006] TLR 127]. However, it enjoys protection for its existence. Principally, a body corporate does not enjoy rights in the same way that natural persons do. That is, the body corporates enjoy some of rights which are not compulsorily attached to natural humanhood. The justification of the foregoing distinction is obvious. Shapiro, I and McCarthy, C.W., in their article entitled “So, W hat if Corporations Aren't P eople ?” [44 J. Marshall Law Review, Vol. 44/3, (2011) p. 716], validate the reason thereof metaphorically that, if you pierce their corporate veils, they will not bleed. Thus, “While it's true that corporations aren't hum an beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool 19 their resources and speak under the legal fiction of a corporation, they do not lose their rights” (p. 701, bolding for emphasis). From the above quotation, though not essentially to equal magnitudes as natural human beings, there are various rights that, by their very nature, should be extended to benefit companies. Further, corporate jurisprudence has grown enough to account for the legal protection or legal personhood. Among the justifications by Shapiro and McCarthy (supra) are: first, corporates are incorporated and manned by rights-bearing individuals such as shareholders, directors, officers and employees. Thus, “if the rights of individuals can be guaranteed, why stripe them off when in groups?”. Second, protection, incentives, formation and incorporation as the citizenry is further assured of their rights. Third, the legal protection perfects the concept of juristic personality in the practical sense. Fourth, the protection promotes democracy indirectly by levelling certain playing grounds and rules between individuals and corporations. After the above examination, the Court now relooks at the wording of Article 30(3) of CUR T . It is clear that any person can bring proceedings 20 before this Court on mere claims that his constitutional rights or duties are being violated. Thus, there is no need of proof at this stage. That is, sheer claims/allegations are sufficient to establish locus standi in this respect. Further, though the expression “person” is not defined under the subject Article, section 4 of the I nterpretation of Law s Act, Cap 1 defines it to include, a public body, company, or association or body of persons, corporate or unincorporated. Case law also adequately reinforces this position that Article 30 of CURT does not confine the scope of the term person to natural persons only. [LHRC & 2 Others v AG (supra) page 10]. Hence, from the above position of law and analysis rendered before in this ruling, it is my considered view that locus standi in respect of violation of constitutional rights, where befitting, also extends to companies. That is, the only condition to be fulfilled by any petitioner whether natural or legal person, is to have allegations/claims affecting his ascertainable constitutional rights. I have also considered the argument by the respondents’ counsel that the petitioners cannot fall under the elements of discrimination mentioned 21 under Sub-Article 5 of Article 13 of CUR T . In point of fact, both parties exerted considerable efforts arguing for or against the tenability of the petitioners’ claims under the guise of the locus standi requirement. With adequate respect to them, I desist to subscribe to their stance. The question of whether or not the petitioners fall within the said provision is, in my firm opinion, prematurely brought forth. The reason behind this stance is that, determining the same at this preliminary stage is tantamount to unjustifiably going into the merits of the petition. As shown above, to establish locus standi the petitioner is merely required to claim that his constitutional rights are being or are likely to be violated in line with Article 30 (3) (supra). Herein, the petitioners have advanced such claims against the respondents seeking redress of this Court. On that regard, I find that they have satisfied the requirement for their locus standi regardless of their legal status of personhood. Other issues raised by parties hereof which poke into the substantive merit of the petition fall within another realm of legal proceedings, if any, at an opportune time. Thus, the issue raised above regarding the second ground of PO is answered in the 22 affirmative. The petitioners are found to have the right to stand in this matter. Regarding the last ground of PO, it was argued that the affidavit in support of the petition contained a defective verification. In other words, the petition is incompetent for being supported by a defective affidavit. In particular, the contention was directed to the affidavit of Ayoub Minga for second petitioner. The respondents asserted that, in the challenged affidavit, the verifier stated that a number of statements in the affidavit were true to his knowledge. But looking at the said affidavit, there are no paragraphs 12 (partly), 13, 14, 15 and 16 (which are said to be of own knowledge). Further, at page 20 of the affidavit there are paragraphs 1 (a-d), 2, 3, 4 and 5 whose source of information was not disclosed. The foregoing anomalies, according to the respondents rendered the respective paragraphs not only unreliable but also worth expungement. They sought reliance on Anatol P eter R w ebangira v P erm anent Secretary, M inistry of Defence and National Service and AG , Civ. Appl. No. 548/04 of 2018 (unreported, pages 8-10) to insist on the importance of a competent verification clause and the disclosure of the source of information 23 in the affidavit. Hence, they argued that the affidavit in question was seriously incompetent for concealment of the source of information and reference to non-existing paragraphs therein. Finally, the respondents reiterated the prayer that the petition should be struck out with costs for want of legal competence. Against the third ground of PO, it was submitted that the challenge on the verification clause by the respondents was also untenable. In an attempt to counter the respondents’ attack that the affidavit of Ayoub Minga lacked the paragraphs purportedly verified, Mr. Mgongolwa submitted that the petition was supported by two affidavits; one from each petitioner. And that, in essence both affidavits contained similar depositions. In his view thus, the difference in numbering or inconsistency thereof were typographical errors which did not affect the substance of the impugned affidavit. He also argued that contemporary jurisprudence condones such inadvertent mistakes which can be cured in due course by inserting the correct numbers. He swiftly prayed for the leave of this Court so as the correct numbering is inserted so that the contested verification is accordingly reflective of the gist of the entire affidavit. On this basis, the petitioners clung 24 to the “overriding objective principle”, and argued in the alternative that, faults in the verification clause do not pose any fatal result to the parties if injustice is not occasioned. They buttressed this point with the decisions in Diam ond M otors Ltd v K-Group (T) Ltd , Civ. Appeal. No. 50 of 2019 (unreported, pages 14, 15); and Jerem iah M tobesya v AG [2016] TLS Law Report 68 (pages 474-475). Furthermore, it was argued that the PO was the respondents’ illegitimate scheme to delay the proceedings unjustly because typically human rights matters should be adjudicated with lenient application of technicalities. With regard to the cases which were cited by the respondents, the petitioners contended that such precedents were distinguishable. For instance, they argued that the Tanzania Epilepsy’s case (supra) is irrelevant herein because the petitioner in the former case had no mandate from the intended beneficiaries of the NGO; while the petitioners in the matter at hand were directly involved in the cement industry per se. Additionally, it was argued that the case of Anatol P eter R w ebangira (supra) was equally inapplicable or distinguishable hereof because the objection in that case was on the verification which did not state 25 the specific paragraphs being verified; whereas in the present matter, there was no open-ended verification clause. That is, each paragraph was set out clearly and verified save for the typos in numbering. The petitioners invited the Court to adopt the approach in P hantom M odern Transport [1985) v DT Dobie (T) Ltd , Civ. Ref. Nos. 15 of 2001 and 3 of 2022 (unreported, at page 9) to the effect that, errors in or a defective verification clause and absence thereof can be cured without causing injustice to parties. Finally, they prayed that the PO should be overruled and the matter be set to proceed to the next stage. For the third ground, the respondents rejoined that, even where the error in the impugned affidavit was out of a slip (as argued by the petitioners); such slipup had dire consequences to the unverified paragraphs. Further, they contested the petitioners’ claim that the error was curable by insertion of the correct numbers. That is, by nature affidavits are sworn evidence into which the Court cannot simply order insertion of numbers in the impugned paragraphs anyhow without interfering in the deponents’ oath. Accordingly, as the deponent therein did not verify certain paragraphs, his counsel cannot rectify such mistake too. 26 The respondents also resisted the invocation of the overring objective principle in this matter. To them, Diam ond M otors v K-Group (supra) was distinguishable because rules of pleadings (plaints and written statements of defence) are distinct from those applicable in affidavits. They maintained that affidavits attract application of stricter rules than pleadings; and that the remedy hereof was for the unverified paragraphs to be expunged following which action, the remaining paragraphs were insufficient to support the petition. On such reasoning, it was argued by the respondents that the case of P hantom (supra) was misapplied by the petitioners. Consequently, the petition was incompetent and was to be struck out with costs. From the above contention of the parties, the third ground was premised on whether the petition is incompetent for being supported with an affidavit with defective verification. Manifestly, the incongruence of parties’ positions hereof is not about the affidavit of Ayoub Minga for the second petitioner to bear a defective verification clause. They are at loggerheads over the consequence of such anomaly. The respondents’ insistence was for the unverified paragraphs in the subject affidavit to be 27 expunged therefrom thereby rendering the salvaged part of the depositions ineffectual. Nonetheless, the petitioners craved for a couple of solutions including invocation of the “curative” overriding objective principle so as to breathe life into the impugned affidavit. They argued that Court may decide to consider the error as an inconsequential typographical hitch; or condone it as not causing any injustice; or allowing the parties to remedy the mistake by inserting the correct numbers in the said affidavit. I agree with the respondents view that compliance with the rules in affidavit should be strictly observed because of the nature of such document. Being sworn evidence, affidavits generally carry with them conclusive depositions. It is thus, not uncommon for affidavital averments to be considered by the Court in resolving parties’ disputes without corroboration or further examination. Hence, express verification of the truthfulness therein and disclosure of the source of information, where necessary, complement the credibility and integrity of the affirmations in the affidavit. Lest, courts would act on depositions which are pure hearsay against the invaluable best- evidence-rule enshrined in the Evidence Act , Cap 6 R.E 2022. 28 With the foregoing position in mind, I looked at impugned affidavit. Among the inconsistences therein include; numbers of paragraphs being repeated/represented twice (1, 2, 3, 4 and 5); the verification clause referring to non-existent paragraphs (12, 13, 14, 15 and 16); the verification clause not specifying which among the two paragraphs numbered as 3 in the affidavit is of the deponent’s own knowledge and the one based on the legal advice; and the verification clause not verifying sub-paragraphs and items of paragraphs 1 and 11. In my view, such lack of constancy in the sworn evidence, is not inconsequential as considered by the petitioners. I thus decline the petitioners’ invitation to have the jumbled affidavit salvaged by the “oxygen principle” or any other relaxed tenets. Likewise, the humble gesture of the respondents to move this Court to expunge the unverified paragraphs in the affidavit for want of trustworthiness only is declined. The identified mistakes under review, cumulatively, are too dire to be condoned by the Court. More so, when the depositions are intended to be used for setting objective interpretation of the constitutional rights and principles raised in the present petition. On that basis, I find that the affidavit of Ayoub Minga faces serious defects which adversely impact on its 29 competence and integrity. I proceed to hold that the entire affidavit is irreparably defective. Consequently, it suffers expungement from the record. I was also implored by the respondents to find that because of the defects in the subject affidavit, the petition is equally defective and/or incompetent and should be struck out. The said imploration notwithstanding, it is my considered opinion that the competence or otherwise of the present petition is to be appraised as a whole. It is common ground that the petition at hand was supported by two affidavits; one from each petitioner. In line with the finding above regarding the just-expunged affidavit of the second petitioner; the petition remains supported by the affidavit of Ahmed Hassan Abdallah for the first petitioner. Essentially, his affidavit was not objected by the respondents howsoever. It is thus, safe for the Court to consider it as being perfectly intact. According to section 4(2) of BR ADEA, the petition to qualify for admission in this Court it must be accompanied by an affidavit. It provides as quoted below. 30 “4(2). Without prejudice to the provisions of the Commission for Human Rights and Good Governance Act, relating to powers of the Commission to institute proceedings, an application under subsection (1) shall not be admitted by the High Court unless it is accom panied by an affidavit stating the ex tent to which the contravention of the provisions of Articles 12 – 29 of the Constitution has affected such person personally” (bolding rendered for emphasis). From the excerpt above, the major conditions for admission of the petition are: one, accompaniment of the affidavit; two, such affidavit must state the extent to which the alleged contravention of the requisite constitutional provisions has affected the petitioner; and three, the effect of the contravention must be personal to the petitioner. As alluded to above, the petition herein remains supported by the affidavit of the first petitioner’s General Manager (Ahmed Hassan Abdallah). The above law does not make it compulsory that every petitioner (in matters involving more than one petitioner) must attach his own affidavit. Thus, the relevant condition in the provision above (regarding attaching the affidavit to the petition) has been satisfied. Whether or not the depositions therein 31 suffice to prove the allegations in the petition, that is the Court’s cup of tea for another morning. For now, all that is important is for the petition to be supported with the affidavit. On that note, the raised issue hereof is partly answered in the affirmative; to the extent that the affidavit of Ayoub Minga contains a defective verification clause. However, the issue partly attracts the negative answer to the effect that the petition is not incompetent due to such finding. In fine, for the stated reasons, analysis and explication; I find the PO without adequate merit. It is hereby overruled. Consequently, the petition is found to be competent. However, given the nature of these proceedings, each party shall bear own costs. It is so ordered. C.K.K. Morris Judge March 28th, 2025 32 Ruling delivered this 28th day of March 2025 in the presence of Advocate Kennedy Mgongolwa for the petitioners and Ms. Lucy Kimario, learned State Attorney for the respondents. C.K.K. Morris Judge March 28th, 2025