JOEL RULING

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA CIVIL CASE NO. 000018044 OF 2024 JOEL DEEMAY........................... . COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KRISTIANIGWANDU AND 5 OTHERS.............................RESPONDENT / DEFENDANT RULING KAMUZORA, J, 05th March, 2025 This case was scheduled for hearing today after counsel for the parties agreed to proceed with hearing by way of witness statements. Before the case was called in court for hearing, we had a chamber briefing with counsel for the parties upon which, the counsel for the 3rd, 4th, 5th and 6th defendants raised a concern over the competency of the witness statements filed in court. After a thorough discussion, the counsel for the parties were allowed to verify and appear to address the court. When called to address the court, Mr. Lundu readily conceded to the errors noted in the witness statements and prayed for adjournment and an order to amend the statements.. His prayer was strongly objected by the counsel for the defendants; Mr. Festo Jacskon and Mr. Nicksoti Tenges on the ground that the error is not curable under overring objectives principle. They prayed for the witness statements to be struck out and the suit be dismissed for want of prosecution. Mr. Tenges further pointed out the errors /in the witness statements as failure to comply with Order XVKI Rule 2 (3)(a) (g) and (i) of the Civil. Procedure Code (Amendment of the first Schedule) Rules of 2021 for they were not made under oath or affirmation, they contained no statement describing that the witness believes the statements of fact to be true and the paragraphs of the statements were not numbered. Having considered the submissions by the counsel for the parties, I have also revisited the law. The above cited provision reads: - Order XVII Rule 2 (3) A witness statement shall; - (a) be made on oath or affirmation; (g) include a statement by the intended witness that he believes the statements of fact in it to be true; (i) be in numbered paragraphs; and be in the language of the court.” There is no doubt the witness statements filed in this court contravened the above provision. That was also conceded to by the counsel for the plaintiff. The question is whether, the prayer for adjournment and amendment of the witness statements made by the counsel for the plaintiff worth to be granted in the circumstance of this case. From his submission, the plaintiffs counsel was not even aware that the witness statements contained errors because such fact came up during briefing and it was raised by the defence counsel. Had it been that the plaintiffs counsel was aware of the errors, it was expected for him to show that he already took steps to rectify errors. Knowing that this case was scheduled for hearing, it was expected for the plaintiffs counsel to have acted immediately by rectifying the errors and prepared fresh docum ents ready to substitute upon leave o f the court being granted so that we could proceed with hearing o f the case as scheduled. His inaction verifies a clear fact that he becam e aware o f the errors after it was raised by the opposite side thus, his argument that he was the first to raise the prayer and there existed no objection does not hold water. The p lain tiffs counsel was unable to convince this court on the existence o f any good reason to adjourn this case. His inaction cannot be condoned under the um brella o f overriding objective principle or the right to be heard. Overriding objective principle is there to ensure justice and not to condone m istakes by advocates. Similarly, the right to be heard is the principle o f natural justice which goes hand in hand with the obligation o f parties seeking to be heard. Knowing that the plaintiff has the right to be heard and was accorded that right by being allowed to present his evidence by filing proper witness statement, it was expected for his advocate to act seriously, diligently and cautiously within the ambit o f the law to ensure justice as well. Sloppiness in filing proper docum ents cannot therefore be condoned on the phrase, ‘right to be heard’. I therefore refrain from entertaining the prayer for adjournm ent and am endment o f the witness statements. Since there is a clear admission that all p la in tiffs witness statements contravened mandatory provisions o f the law, I proceed on striking out all three witness statem ents filed for the p lain tiffs case. Having done, so I subscribe to the holding o f this court at Com mercial Division in Abid Ally Sykes alias Abid Ally Kleist Sykes t/a Afrinet Ltd vs M-Pesa Ltd (Commercial Case No. 15 o f 2023) [2024] TZHCComD 5 (7 February 2024) as cited by the counsel for the defendants and proceed to dismiss the suit for want o f prosecution with costs. D ated a t T H E H IG H C O U R T O F TA N ZA N IA AT M A N Y A RA this 5th o f March 2025 .