20050726 TZHC Dar es Salaam

. ;'"'·~- .,........,JI F; ·.::~~-". IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL REFEENCE NO. 5 OF 2004 . KALUNGA AND COMPANY ADVOCATE .... APPLICANT VERSUS NATIONAL BANK OF COMMERCE LTD ... RESPONDENT RULING MANENTO, JK: This is a ruling emanating from the chamber smnmons filed by one Leopold Thomas Kalunga, for the grant of leave to him (the applicant) to appeal to the Court of Appeal of Tanzania against the decision of this Court dated 10 th December, 2004 striking out a reference to a judge on a matter of taxation of a bill of cost. The chamber summons is made under Section 5(i)(c) of the Appellate Jurisdiction Act, 1979 and Rules 43 and 46 (1) of . the Tanzania Comi of Appeal Rules, 1979. It is also supp01ied by an affidavit of one Mwezi Mhango, who is also the advocate for the applicant. In his 3 rd paragraph of his affidavit, it.is deponed that the reason for the striking out of the reference was that the ju rat did not indicate where the affidavit of the applicant filed in supp01i of application for reference had been sworn. 2 It is further deponed that had the honourable judge asked the advocates of the paiiies to urge the propriety or impropriety of the ju rat instead of action suo moto, he would not have come to the conclusion he did as the ju rat was according to the law. On the othe_r hand, Mr. James Kabakama an advocate of the respondent deponed in his counter affidavit that the honourable judge was right in striking out the reference because the ju rat of the affidavit of one L.P. Kalunga in support of the chamber summons did not confirm to the law, as it did not indicate where it w.as sworn. During the hearing of the application, both the learned counsel, almost repeated what they had deponed in their respective affidavits, but Mr. Ngowi, learned counsel raised a new issue, which was not in the affidavit, that the application was incompetent before the court because the striking out of the application did not determine the application. The applicants could rectify the abnormality by refilling afresh the reference, subject to the Jaw of limitation. Mr. Mhango, leained advocate on his paii submitted in his reply to that point that the matter had come into an end because the ju rat of the affidavit of L.T. Kalunga in support of the reference was in conformity with the law. He had urged earlier that the law does not specify the way the jurat should be. In that affidavit, he had shown both the name of the deponent, .J 3 the place and date. Only that the place where the affidavit was swo111 is shown below the signature of the Commissioner for Oath. The absence of the format in the law could lead to such placing of the words in the ju rat of the affidavit. The issue which Mr. Mhango, leained counsel wants the Court of Appeal to determine is whether there is a format of the ju rat or that there is no such a format to be followed, provided that all the information required is contained in thejurat. Mr. Shayo, learned advocate .submitted that there is specific format which is to be followed, which was not followed by Mr. L.T. Kalunga in his affidavit. The jurat of the affidavit of Mr. L.T. Kalunga reads as follows: Sworn by the said Leopold Thomas Kalunga Before me: Sigped Commissioner for Oaths At Dar es Salaam 14/4/04 4 On that form, the honourable judge in his ruling stated that under section 8 of the Notari us Public and Commissioner for Oaths Act Cap. 12 of the Laws, stated that: "Every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made, under this Act shall state truly in the jurat "of the attestation at what place and on what date the oath or affidavit is taken or made" (emphasis is supplied). The prayer sought is for_.grant of leave to the Comi of Appeal so that the applicant could appeal against the ruling of this comi, striking out the reference on the ground that the jurat did not indicate where the affidavit of the applicant in support of the application for reference was sworn. Mr. Mhango learned advocate for the applicant had submitted that there is no law providing for the format. However, the law which the honourable judge cited clearly shows how the format should be. That is to say the jurat should first show the place where the oath was taken and followed by the date it was taken; Not otherwise. In short the memorandum at the end of the affidavit Must state where a,nd when the affidavit was sworn, followed y the signature and description of the person before whom was sworn. That is what the judge said. Supp01ied by section 8 of the Notaries Public and Commissioner for Oaths, Cap. 12 of the Laws. ·If that is the law, I d6nt see 5 what should the Comi of Appeal decide contrary to the law. The format is provided by the law, contrary to what Mr. Mhango, learned counsel submitted that there is no such law. From what I have said, I don't see any good reason why leave should be granted as prayed. The application is therefore dismissed with costs. ·u••·Jp A.R. Manento JAJI KIONGOZI.. 26.7.2005 Coram: A.R. Manento, JK For the Applicant-Mr. Mwandambo Advocate for Mhango Advocate For the Respondent - Galebah Advocate. Cc; Livanga Court: The ruling is read in the presence of the pa1iies. JAJI KIONGOZI. 26/7/2005