kalunga company advocates vs national bank of commerce ltd 2005 tzhc 35 26 july 2005

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 This is a ruling emanating from the chamber summons filed by one Leopold Thomas Kalunga, for the grant ofleave to him (the applicant) to appeal to the Court of Appeal of Tanzania against the decision of this Court dated 10th 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(1)(c) of the Appellate Jurisdiction Act, 1979 and Rules 43 and 46 (1) of the Tanzania Court of Appeal Rules, 1979. It is also supported by an affidavit of one Mwezi Mhango, who is also the advocate for the applicant. In his 3rd paragraph of his affidavit, iUs deponed that the reason for the striking out of the reference was that the jurat did not indicate where the affidavit of the applicant filed in support of application for reference had been sworn. It is further deponed that had the honourable judge asked the advocates of the parties to urge the propriety or impropriety of the jurat instead of action suo moto, he would not have come to the conclusion he did as the jurat was according to the law. On the other 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 jurat of the affidavit of one L.P. Kalunga in suppOli of the chamber summons did not confinn to the law, as it did not indicate where it was 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 law of limitation. Mr. Mhango, learned advocate on his part submitted in his reply to that point that the matter had come into an end because the jurat of the affidavit ofL.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, the place and date. Only that the place where the affidavit was sworn 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 jurat of the affidavit. The issue which Mr. Mhango, learned counsel wants the Court of Appeal to determine is whether there is a format of the jurat or that there is no such a format to be followed, provided that all the information required is contained in the jurat. 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 ofMr. L.T. Kalunga reads as follows: Sworn by the said Leopold Thomas Kalunga Before me: Sigped Commissioner for Oaths At Dar es Salaam On that form, the honourable judge in his ruling stated that under section 8 of the Notarius 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 Court of Appeal so that the applicant could appeal against the ruling of this cOUli, 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 and when the affidavit was sworn, followed y the signature and description of the person before whom was sworn. That is what the judge said. Supported by section 8 of the Notaries Public and Commissioner for Oaths, Cap. 12 of the Laws. If that is the law, I dont see ~ A.R. Manento ~? A.R. Manento