lake duluti estate ltd vs mrs yonnie virginia ruth chopra executrix of the estate of the late arjan chopra deceased defending through her attorney mr jarat chopra 2012

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT ARUSHA COMMERCIAL CASE NO. 3 OF 2008 LAKE DULUTI ESTATES LIMITED...................................APPLICANT VERSUS MRS. YONNIE VIRGINIA RUTH CHOPRA (Executrix of the estate of the late ARJAN CHOPRA deceased) defending through her Attorney Mr. Jarat Chopra).................................. RESPONDENT Date of the last Order: 14/12/2011 Date of final submissions: 13/02/2012 Date of Ruling: 24/04/2012 RULING MAKARAMBAJ.: On the 25th day of October 2011, the firm of Advocates of Mawalla Advocates, lodged in this Court a Chamber Summons for Lake Duluti Estates Limited, the Applicant herein. The Application was preferred under Order XXV Rule 1(1) and section 95 of the Civil Procedure Code, [Cap.33 R.E. 2002] and is supported one SALIM JUMA MUSHI. In the Application, the Applicant is seeking for an order for the deposit by the Respondent, Mrs. Yonnie Virginia Ruth Chopra, the executrix of the estate of the late ARJAN CHOPRA deceased defending through her Attorney, Mr. JARAT CHOPRA, of TZS 400,000,000/ (Say Tanzanian Shillings Four Hundred Million) only as security for costs of this suit. On the 12th day of December, Page 1 of 27 2011, the Respondent lodged a Notice of Preliminary Objection against the application. The present ruling concerns the points of preliminary objection raised by the Respondent in the Notice, which by consent of the learned Counsel for the parties they were disposed of by way of written submissions by Mr. SALIM MUSHI, learned Counsel for the Applicant, and Mr. MARO learned Counsel for the Respondent. Initially, the Respondent had raised four points of preliminary objection, and one in the alternative. However, in the course of making his submissions in support of the preliminary objection, the learned Counsel for the Respondent elected to abandon the third point of preliminary objection and proceeded to submit on the rest of the points of preliminary objection. I propose to determine the first and second points of preliminary objection jointly since they are somehow closely related. The first point of preliminary objection is that the application is incompetent for want of a supporting affidavit AFFIRMED by one Mr. Saiim Juma Mushi. The second point of preliminary objection is that the verification clause in the "Affidavit" by Mr. Saiim Juma Mushi is bad for not disclosing the source of the information contained in the said "affidavit". Mr. Maro argues that the application for security for costs is incompetent for want of affidavit duly affirmed by Salim Juma Mushi. It is a common ground that in terms of Order XLII Rule 2 of the Civil Procedure Code, every application to the Court under the Civil Procedure Code may be made by way of chamber summons supported by affidavit, Mr. Maro Page 2 of 27 pointed out. The current chamber application is without a supporting affidavit. This is so because the application is supported by a document purporting to be an affidavit "affirmed" by one Mr. Salim Juma, who discloses to be a Moslem, Mr. Maro insists. In terms of section 4 of the Oaths and Statutory Declaration Act, [Cap. 34 R.E. 2002] any person making an oath but professes any faith other than the Christian faith or objects to be sworn "shall" be required to make a solemn affirmation, Mr. Maro pointed out. In the present application, Mr. Salim Juma Mushi took the affidavit but at the end of the day instead of "affirming", he was "sworn", and therefore the affidavit of Mr. Salim Juma Mushi was not affirmed as required by the law, Mr. Maro surmises. Mr. Maro cites the decision in the case of KANYUA V. NGANGA (2004) E.A (HK) 104 to buttress his argument. The relevant facts in KANYUA V. NGANGA (supra) as far as they could be gathered from the observation made by the presiding judge at page 105 of the decision is that when the case came up for hearing before the presiding judge on the 26th day of January, 2004, the first Respondent raised a preliminary objection that the originating summons was a nullity because the applicant's supporting affidavit had not been sworn. It was not in dispute in that case that the affidavit of one Mary Wanjiru Kanyua attached to the originating summons dated the 30th day of May 1996, which was filed in Court had not been commissioned by Commissioner for Oaths. The advocate, Mr. Mhiyu argued that the failure to commission the affidavit rendered the entire suit fatally defective. Mr. Mhiyu noted further that the provisions of Order XXXVI, Rule 31(2) of the Civil Procedure Code Page 3 of 27 of Kenya require the originating summons to be supported by an affidavit. And, therefore, as the document titled "affidavit" which was filed in support of the originating summons had not been commissioned the said originating summons was a nullity, as there was no supporting affidavit. The Court noted and concluded at page 107 of the decision as follows: "However, that rule clearly envisages an affidavit that had been sworn. Once an affidavit had been sworn if it had irregularity in form, the Court could possibly receive it. The difficulty in this case is that "affidavit" of Mary Wanjiru Kanyua attached to the originating summons dated 3Cfh May 1996 was neither dated nor sworn. At best the said document could be described as the final draft of Kanyua's affidavit. It could not become an affidavit until and unless it was sworn by Kanyua before the Commissioner for Oaths. I therefore have no alternative but to conclude that the originating summons was not supported by an affidavit, as required by Order XXXVI, Rule 31. The said originating summons is thus fatally defective and must be struck out, with costs" (the emphasis is of this Court). Mr. Maro further submits that in the instant case what is before this Court is un-affirmed affidavit, which in terms of Order XXLIII Rule 2 of the Civil Procedure Code makes the current application grossly incompetent and therefore it ought to be struck out with costs. Mr. Maro cites the case Of PROJECT PLANNING CONSULTANTS (TANZANIA) V. TANZANIA Page 4 of 27 AUDIT CORPORATION [1974] LR.T. No. 10 where the affidavit of the Advocate for the Defendant in support of the matter was found by the Court to be defective for having been witnessed by an Advocate from the Tanzania Legal Corporation, a firm which also acted for the Defendant. In that case the Court proceeded to strike out the application because there was no affidavit in support of it because the affidavit was not properly sworn in terms of Order XLIII Rule 2, which requires every chamber application to be supported by an affidavit. In rebuttal, Mr. Mushi learned Counsel for the Applicant submits that the said defect is not fatal, and is curable under the provisions of section 9 of the Oath and Statutory Declaration Act, [Cap.34 R.E 2002], Mr. Mushi argues further that the cases cited by Mr. Maro in his submissions are therefore of no relevance in the matter at hand, and that this point of objection is without merits and should be dismissed with costs. In rejoinder Mr. Maro argues that the requirement for both an oath and affirmation are mandatory by virtue of the use of the words "shall" in section 4 of the Oaths and Statutory Declaration Act, [Cap.34 R.E 2002], Mr. Maro further elaborates that the word "shall" has received statutory interpretation under section 53(2) of the Interpretation of the Laws Act, [Cap.l R.E 2002] which stipulates as follows: "Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." Page 5 of TJ Mr. Maro cites the case of SHAABAN IDDI JOLOLO AND 3 OTHERS V. THE REPUBLIC, Court of Appeal Criminal Appeal No.200/2006 at Dodoma (unreported), where the provisions of section 53(2) of the interpretation of Laws Act [Cap.l R.E 2002) came under consideration. In that case after quoting the contents of section 53(2) of the Interpretation of Laws Act, the Court stated as follows: "...we wish to observe here that the above sub-section is couched in mandatory terms. This is evidenced by the use of the word "shall" in the sub-section." (the subsection referred to here is subsection 2 of section 53 of the interpretation of Laws Act [Cap.l R.E2002). Mr. Maro also cites the case of MABIBO WINES & SPIRITS LIMITED V. LUCAS MALLYA A.K.A BARAKA STORES AND ANOTHER (2009) 1 EA 284. As it turned out at the appellate stage, the Court pointed out that neither the second respondent nor the other party was heard by the Fair Competition Commission, where the case originated from. The Court of Appeal interpreted the provisions of section 70(2)(a) of the Fair Competition Act which uses the word "shall", and observed that it imposes an "imperative" obligation on the Fair Competition Commission to give a respondent in a complaint before it reasonable opportunity to be heard. The Court of Appeal in that case after making reference to section 53(2) of the Interpretation of Laws Act, [Cap. 1 R.E 2002] on the interpretation of the word "shall" proceeded to hold as follows: Page 6 of 27 "In so far as the word "shall" has been used in section 70(2)(a) of the Act, the obligation of hearing the Respondent is imperative. In other words, it is mandatory for the Commission to give the respondent in a complaint before it a reasonable opportunity to be heard. Absence of such a reasonable opportunity to be heard renders the proceedings/decision before the Commission a nullity" (the emphasis is of this Court). Mr. Maro argues further that it remains mandatory for Mr. SALIM MUSHI to have taken an affirmation and that section 9 of the Oath and Statutory Declaration Act, [Cap.34 R.E 2002] cannot be used to cure a nullity. Mr. Maro is of the opinion that section 9 of Oath and Statutory Declaration Act, [Cap.34 R.E. 2002] is not in harmony with section 4 of that Act. Mr. Maro further argues that cannons of interpretation dictate that where there are two sections in one statute which are not in harmony with each other, the correct approach to interpretation is to enforce the leading section. In this regard Mr. Maro cites the words of Lord Justice Herschel in INSTITUTE OF PATENT AGENTS V. LOCKWOOD (1894) AC 347 (HL) at page 360 that: "You have to try and reconcile them as the best as you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other." Page 7 of 27 Mr. Maro also refers this Court to the case of PROJECT BLUE SKY INC V. AUSTRALIAN BROADCASTING AUTHORITY (1988) 72 AL JR 841 P 855 where it was stated that: "Only by determining the hierarchy of the provisions will it be possible in any case to give each provision the meaning which best give effect to its purpose..." Since in his submission the Applicant admits that the affidavit of SALIM MUSHI is defective, in fact it is a nullity and it cannot be cured, Mr. Maro surmises. On the submissions of Counsel, in support and rival, it is seems that they both are on consensus that the jurat of attestation of the affidavit of Mr. Salim Juma Mushi in support of the Chamber Summons purporting to have been affirmed by him was not "affirmed" as required under section 4 of the Oaths and Statutory Declaration Act, [Cap.34 R.E 2002]. Section 4 of the Oaths and Statutory Declaration Act, [Cap.34 R.E 2002] provides as follows: "4. Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; Page 8 of 27 (b) any person acting as interpreter of questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating, as the ground of such objection, either that he has no religious belief or that the making of an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead of making an oath and such affirmation shall be of the same effect as if he had made an oath." (the emphasis is of this Court). I am at one with the submissions by Mr. Maro that in terms of section 4 of the Oaths and Statutory Declaration Act, an oath and affirmation have the same legal effect, which is to hold the deponent accountable for the truth of the matters he or she claims to take oath or affirm on. The gist of the argument by Mr. Salim Mushi in his bid to wriggle himself free of the failure by the deponent to take oath instead of affirming is that such error is curable under section 9 of the Oaths and Statutory Declaration Act. Section 9 of the Oaths and Statutory Declaration Act provides as follows: "Where in any judicial proceedings an oath or affirmation has been administered and taken, such oath or affirmation shall be deemed to haye been properly administered or taken, Page 9 of 27 notwithstanding any irregularity in the administration or the taking thereof, or any substitution of an oath for an affirmation, or of an affirmation for an oath, or of one form of affirmation for another, "(the emphasis is of this Court). The main argument by Mr. Maro is that the deponent Mr. Salim Juma Mushi being a Moslem was to have "affirmed" in the affidavit instead of making an oath. And therefore to the extent that his affidavit is not affirmed as required by law, it is incurably defective and it ought to be struck out. And that since under the law relating to chamber summons requires an application to be supported by an affidavit, in the absence of such an affidavit, the application should also be struck out. I have had a look at the impugned affidavit of Mr. Salim Juma Mushi. I have also followed the submissions of learned Counsel with keen interest. The present controversy revolves around the provisions of section 4 of the Oaths and Statutory Declaration Act, [Cap.34 R.E 2002]. The issue is whether that provisions of section 4 concern defects in taking an oath or affirming an affidavit. If the first issue is resolved in the affirmative, whether defect in taking an oath or affirming an affidavit is fatal as to render an affidavit incompetent and hence liable to be struck out. In my considered opinion the whole statutory scheme of the Oaths and Statutory Declaration Act is a general one which applies to all forms of and statutory declarations but not specifically affidavits. Section 4 of the Act is applicable to the taking of an oath by any person who may lawfully be examined upon oath or give or be required to give evidence upon oath Page 10 of 27 by or before a court and any person acting as interpreter of questions put to and evidence given by a person being examined by or giving evidence before a court. The instant case does not concern the taking of an oath or affirmation in relation to a person being examined or required to give evidence or to an interpreter. Equally section 9 of the Act is applicable in "any judicial proceedings" and is concerned with "irregularities in the administration or the taking of oath or affirmation." This is not the case presently. In my considered view therefore, neither section 4 nor 9 of the Oaths and Statutory Declaration Act is applicable to the present matter, which concerns a defective affidavit, to the deponent who is a Moslem taking oath instead of affirmation. This takes us to the law regulating jurat of attestation which is the Notaries Public and Commissioners for Oaths Act, [Cap. 12 R.E 2002], section 8 of which provides for matters which are mandatorily required to be shown in a jurat of attestation. Section 8 of the Notaries Public and Commissioners for Oaths Act, [Cap. 12 R.E 2002] provides as follows: "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 attestation at what place and on what date the oath or affidavit is taken or made." In terms of section 8 of the Notaries Public and Commissioners for Oaths Act, [Cap. 12 R.E 2002], there are only two matters which are Page 11 of 27 mandatorily required in an affidavit. These are the date on what and the place at what an oath or affidavit is taken or made. Rather unfortunately, there is no the equivalent of section 4 of the Oaths and Statutory Declaration Act in the Notaries Public and Commissioners for Oaths Act, [Cap. 12 R.E 2002]. It seems clearly therefore that the legislative schemes under the two pieces of legislation concern unrelated matters, the former dealing with the taking of oath and affirmation in judicial proceedings, the latter with the taking of oath and affirmation in jurat of attestation. In bringing the provisions of section 4 of the Oaths and Statutory Declaration Act to apply to jurat of attestation, Mr. Mario seems to me to have deplored to his ammunition the arsenal of reasoning by analogy. However, in the absence of express provision in the Notary Public and Commissioners for Oaths Act on the effect of the taking of an oath by a person required to affirm, no stretch of imagination can cure that gap. Let me now turn to consider the impugned affidavit of Mr. Salim Juma Mushi, a Moslem. Indeed on its first page, the deponent has affirmed. This in my view goes only to show that from the initial stages the intention of Mr. Salim Juma Mushi was make an affirmation. The mere fact that the deponent took oath instead of affirming does not in my considered view render his affidavit incurably defective. The defect in my opinion is not that fatal and can be cured by an order of this Court for amendment. I am fortified further in this view by the wisdom of Hon. Oriyo, J. a she then was, in the case between ISAYA MWAKILASA @ WAKUVANGA & OTHERS V. EAST AFRICA TELEVISIONS LTD & OTHERS, Page 12 of 27 Commercial Case No.46 of 2008 where at page 13 of the ruling she had this to say: "...there are several instances where the Court of Appeal has granted leave to parties to amend what was termed as either grossly defective or incurably defective affidavits. Such instances include the case of D.D International Ltd v. Tanzania Harbours Authority and Others, Civil Application No. 8 of2001 (unreported) where the wisdom of the Court of Appeal was as follows: "The Court has power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case." This Court believes very strongly that justice in this case will be better served by order for amendment rather than striking out the affidavit thus providing this Court with the opportunity to determine the matter on merits. In any event there is no injustice that will be occasioned to the Respondent if the Applicant is ordered to amend his affidavit. In the event and for the foregoing reasons, the first preliminary objection is hereby dismissed. The Applicant is ordered to amend his affidavit and file it in Court within seven (7) days of this Order. Let me now turn to consider the second point of preliminary objection that the verification clause in the "Affidavit" by Mr. Salim Juma Mushi is bad for not disclosing the source of the information contained in the said "affidavit". Page 13 of 27 The main contention by Mr. Maro is that the affidavit by Salim Juma Mushi is bad for not disclosing the source of the information contained therein. It is common ground that, the source of information of the deponent in an affidavit or pleadings must be disclosed as per Mulla in his book titled Mulla on the Code of Civil Procedure Act No. V of 1908, 14th Ed, Vol. II, Bombay 1984 at page 999 thus: "The object of this rule is to fix responsibility for allegations made in the plaint on the person who verifies and this is to ensure that false allegations are not made freely and recklessly. False verification is an offence punishable under the Penal Code." Mr. Maro further submits that the source of information must be disclosed as clearly stated in the case of TUNDU LISSU V. GULF AIR GS, Civil Case No.279/1999 High Court of Dar es Salaam (unreported). It is his further submissions that, in the case of STANDARD GOODS CORPORATION LIMITED V. KARKSHAND NATHU & CO. (1950) 17 EACA 99 at 100 the Court of Appeal of Kenya held that; "It is well settled that, where an affidavit is made on information, it should not be acted upon by any court unless the source of information are specified". Mr. Maro further submits that the verification clause in the affidavit purported to have been sworn by Mr. Salim Juma Mushi on the 26th day of Page 14 of TJ September, 2011 does not disclose the source of the information contained therein. The verification clause provides as follows: "VERIFICATION" I, SALIM JUMA MUSHI, being the Advocate for the applicant dully instructed do hereby verify that all that is stated in paragraphs 1 and 7 is true to the best of my knowledge and what is stated in paragraphs 2, 3,4,5 and 6 are true based on information supplied to me by the applicant, information which I verify believe to be true." Mr. Maro submit further that the Applicant in these proceedings is an artificial person, a body corporate styled Ms. Lake Duluti Estate Limited, so when Mr. Salim allege that the contents of paragraphs 2, 3, 4, 5 and 6 are of information supplied by the Applicant which is a body corporate, the requirement for disclosure of the source of information has not been attained. The verification clause does not specify specifically, who within that corporate body is the source of the crucial information in the said paragraphs. Therefore the affidavit by Salim Juma Mushi cannot be acted upon and it is liable to be struck with costs, Mr. Maro surmised. In reply Mr. Mushi submits that it is not true that the source of information of the facts stated under paragraph 2, 3, 4, 5 and 6 has not been disclosed in the said affidavit as purported by the Counsel for the Respondent. It is stated in the verification clause that the said information has been supplied by the applicant, in the matter at hand which is Lake Duluti Estates Limited, a limited liability company with a legal personality Page 15 of 27 like any other person as quite admitted and supported by the Counsel for the Respondent. It is a common knowledge that a company can do anything which can be done by a natural person, Mr. Mushi reiterated. Mr. Mushi submits further that the matter as to who in that corporate entity supplied the information is another thing, and it is beyond what is envisaged under the provisions of Order XIX Rule 3 (1) of the Civil Procedure Code. Mr. Mushi refers to the case of KIGANGA AND ASSOCIATES GOLD MINING CO. LIMITED V. UNIVERSAL GOLD NL (2000 1 EA 134 (HCT) wherein it was stated thus: "Not only are we informed of the status of the person signing but also we are told this particular "principal officer of the Plaintiff is conversant with facts of this case" as per requirements of Order VI, Rule 15(1) and Order XXVIII (1) of Civil Procedure Code. It is my considered view that up to that point the law has fitly been complied with." Mr. Mushi further refers to the decision in the case of KIGANGA AND ASSOCIATES GOLD MINING CO. LIMITED V. UNIVERSAL GOLD NL (supra) where the Court explained that the requirement for verification as being primarily aimed at countering possible abuse of the court process and fixing responsibility. The Court then observed as follows: "In suits involving companies verifications made in the mode of the type now at hand suffice. However, if the other party is in doubt as Page 16 of 27 to whether the verifier is or is not a principal officer of the company he can take it up as a challenge and if he convinces the court as to the need the said officer may be required to prove his status to the satisfaction of the court either by affidavit or otherwise as the Court may deem proper. It is not of less significance that the same order XXVIII rule 3 Civil Procedure Code offers a cushioning for any clarity or issue that may accrue by providing: "Order XXVIII Rule 3 the court may, at any stage of the suit, require the personal appearance of the secretary or of any director of other principal officer of corporation who may be able to answer material questions relating to the suit." In his rejoinder Mr. Maro submits that a corporate entity could have a large number of directors and managers, so it is not enough to say that the information came from the company. One must disclose a particular person who released the information and who criminally be accountable in the event the information is false. Mr. Maro dismissed the decision in Kiganga and Associates Gold Mining Co. Ltd (supra) as being of less assistance, first, because it is a decision by a single judge of the High Court. Secondly, it departed from two previous decisions on the same subject. Thirdly, the pleadings in that case were signed by a Director. In the instant case, the affidavit of Mr. Salim does not mention whether the source of the information is from a Director or a Company Secretary, etc.etc. The second point of preliminary objection raises a rather interesting point of law, whether a corporate entity, which in the eyes of the law as Page 17 of 27 rightly submitted by Mr. Mushi, is treated like "any other person" can like any other natural person, supply information to another person. The verification clause by Mr. Salim Juma Mushi discloses that what is stated in paragraphs 2, 3, 4, 5 and 6 are true based on the information "supplied by the Applicant", which is a limited liability company, an artificial person, registered as Lake Duluti Estates Limited. It is true that a company may sue or be sued by its own name. The issue is whether a company is capable of supplying information to another person and for that matter a natural person. I wish to point out here that the concept of corporate personality which was ushered in by the famous case of SALOMON V. SALOMON & CO. LTD (1897) A.C 22 has tasked many a minds of legal pundits. The House of Lords had earlier in the case of OAKES V. TURGUAND AND HOARDING (1867) L.R. 2 H.L. 325 observed that once incorporated the company must be treated like other independent person with rights and obligations appropriate for itself. Among the rights and obligations that flow from its corporate legal personality is to hold and disseminate information. Since in the eyes of the law a company is treated like any other person, in my view, it is capable of releasing information to any person. The argument by Mr Maro that the deponent ought to have disclosed the particular person in the Company who released the information and who criminally be accountable in the event the information is false flies in the face of the common ground that that a Company being an artificial person does have a mind of itself and speaks through its directors, who are to be held accountable for the authorized acts and Page 18 of 27 dealings of the Company. In my view I find the facts in the case of Kiganga and Associates Gold Mining Co. Ltd (supra) distinguishable from the facts in the instant matter. In that case the issue was whether the verifier is or is not a principal officer of the company, which the Court found to be a matter of fact to be ascertained. In that case despite the Court not being informed as to the status of the person signing or that the particular "principal officer of the Plaintiff is conversant with facts of this case" as per requirements of Order VI, Rule 15(1) and Order XXVIII (1) of Civil Procedure Code, the Court nevertheless found the point the law to have been "fitly been complied with." In the instant case the verification clause by Mr. Salim Juma Mushi discloses that what is stated in paragraphs 2, 3, 4, 5 and 6 are true based on the information "supplied by the Applicant", Lake Duluti Estates Limited, a registered company. In my considered opinion this fulfils the requirement of the law as to disclosure of the source of the information. In my view matters as to the person in the Company who supplied the information as deponed go to evidence as they have to be ascertained. It is for the foregoing reasons I dismiss the second point of preliminary objection. Let me now turn to consider the last point of preliminary objection that the application is time barred and in the alternative that the application ought to be rejected for want of facts disclosing time when the cause of action arose. Mr. Maro submits that the present application has been preferred under the Civil Procedure Code. Mr. Maro argues further that however, in Page 19 of 27 terms of Item 21 to Part III of the Law of Limitation Act, Cap.89 R.E. 2002, the limitation period for any application made under the Civil Procedure Code 1966, the Magistrate Court Act, 1984 or any other written law for whose no any limitation period is prescribed shall be sixty (60) days. According to Mr. Maro, the sixty days prescribed period of limitation starts to run from the date on which the right of action for such proceeding accrues, as it is provided for under section 4 and 5 of the Law of limitation Act, [Cap.89 R.E 2002]. Mr. Maro submits further that in terms of Order XXV, Rule 1 of the Civil Procedure Code, Cap.33 R.E. 2002, a Defendant will be entitled to apply for security for costs once it comes to his knowledge that the Plaintiff resides outside Tanzania, and does not possess sufficient immovable properties in Tanzania other than the property in the suit. Once a suit is filed the two conditions stated above are known to the Defendant then in terms of provisions of section 4 and 5 of the Law of Limitation Act, the right of action for an application for security accrues hence the sixty days would start to run. Proceeding on that line of reasoning Mr. Maro submits further that the Applicant's right to prefer application for security for costs accrued on the 16th day of June, 2008, when she was served with the Plaint, which sixty days expired on the 15th day of August 2008. According to Mr. Maro and based on his calculations, the current application is time barred for more than three years. In the alternative Mr. Maro submits that a party who prefers a court action has a duty to plead his case in a manner so as to bring it within the Page 20 of 27 limitation period. Mr. Maro cites Order VII Rule 1(a) of the Civil Procedure Code of the laws which requires that: " The plaint shall contain the following particuiars;- (a) to (c) not relevant (d) The facts constituting the cause of action and when it arose. Mr. Maro further argues that under the purported affidavit in support of the application, the facts constituting the alleged cause of action are averred in paragraphs 4, 5 and 6, but the affidavit is silent as to when such cause of action arose. Mr. Maro submits further that the application together with pleadings/plaint ought to be rejected in terms Order VII Rules 11 and 12 of the Civil Procedure Code, Cap.33 R.E. 2002. Mr. Maro cites Nulla in the Book Code of the Civil Procedure Act, page 1053 where it is stated that: "Rejection of plaint on other grounds: it has been held that the grounds of rejection given rule 11 are not exhaustive and that where the plaint was signed by a person not authorized and the plaintiff did not remedy the defect when called upon to do so the court could reject the plaint under this rule." In reply Mr. Mushi submits that the application at hand was made under the provisions of Order XXV Rule 1(1) and section 95 of the Civil Procedure Code, Chapter 33 R.E 2002. It is plainly from this provision that Page 21 of 27 the application for security for costs can be lodged at any stage of a suit. The present application was filed immediately after the conclusion of the mediation and before the trial began, Mr. Mushi reiterated. Item 21 to Part III of the Law of Limitation Act does not apply in the matter at hand as the time limit for such applications has been stated under Order XXV Rule 1(1) of the Civil Procedure Code, Mr. Mushi avers and cites section 46 of the Law of Limitation Act, Chapter [89 R.E 2002] which provides that: "Where a period of limitation for any proceeding is prescribed by any other written law, then, unless the contrary intention appears in such written law, and subject to the provisions of section 43, the provisions of this Act shall apply as if such period of limitation had been prescribed by this Act." According to Mr. Mushi, therefore, the applicable provision is Order XXV Rule 1(1) of the Civil Procedure Code, which gives room for such applications to be instituted at any stage of the suit. In alternative, Mr. Mushi submits that the principle pertaining to preliminary objection is that it must be based on pure point of law and upon uncontroverted set of facts. Mr. Mushi submits further that it also common ground that triable issues cannot be disposed of by way of preliminary objection and cites the famous case of MUKISA BISCUITS MANUFACTURING COMPANY LIMITED V. WEST END DISTRIBUTORS LIMITED (1969) EA 969 on the test as to preliminary objection. Page 22 of 27 Mr. Mushi submits further that the fact as to when the Applicant becomes aware, and that the Applicant resides outside Tanzania, and that the Applicant does not possess sufficient immovable property within Tanzania other than the property in suit, and to ascertain as to when a cause of action arose, call for evidence, and it is only after hearing the main application when these facts can be ascertained. Mr. Mushi adds that under the law, the power of the Court to order security for costs is entirely a matter of discretion and cites the two cases of SABURI SHIRIMA V, MESFIN TESHOME, High Court of Tanzania at Arusha, Misc Civil Application No. 79/2001, and Commercial Case No. 17/2000, High Court of Tanzania, in SERAFIM ANTUNES AFFONSO V. PORTAN ENTERPRISES LIMITED to buttress his point. According to Mr. Mushi, therefore the preliminary objection is disqualified, and the same should be dismissed forthwith with costs since. The facts complained of are to be ascertained once evidence is taken. Furthermore, what is sought is in the exercise of judicial discretion. Mr. Mushi submits further that Order VII Rule 1 (a) of the Civil Procedure Code, deals with "Plaint in a suit", while the matter at hand is an "application", and therefore the said Order is not applicable. Affidavits are regulated by the provisions of Order XIX of the Civil Procedure Code, which talk nothing about disclosure of facts constituting the cause of action and when it arose, which requirement only applies in a Plaint but not on affidavits and therefore this point of objection is misconceived and should be dismissed with costs. Page 23 of 27 In rejoinder Mr. Maro reiterates that the provisions of Order XXV Rule 1(1) of the Civil Procedure Code do not in any way fix any period of limitation. In fact it makes no reference to time. It only talks of a stage. A period of limitation is usually fixed by prescribed time, that is, number of days, months or years within which an aggrieved party can move the Court for a remedy and/or bars an action after a certain period. Mr. Maro submits further that the period should be prescribed like that of the Court of Appeal Rules, G.N. 368/2009. Mr. Maro refers to Black's Law Dictionary by Bryan A. Garner, 9th Edition West Thomson Reuters Business 2004 at page 1547 where a statutory period of limitation is defined to mean: "A time limit specified in a statute, esp., the period prescribed in the relevant statute of limitations." Mr. Maro submits further that the applicability of Order VII of the Civil Procedure Code to application has been well found both in the High Court and lower courts. Mr. Maro cites section 2 of the Civil Procedure Code which requires that: "Subject to the express provisions of any written law, the provisions of this Code shall apply to all proceedings in the High Court of the United Republic Courts of the Resident Magistrate and District Courts." Page 24 of 27 Mr. Maro concludes by referring to the decision in the case of M/S International health Food Association Limited v, Mr. Baraka Mukundi, Civil Revision No.7/2009 (unreported) where Shayo, J. as he then was had this to say: "In this respect therefore, the provisions of Order XXIII, Rule 1(3) of the Civil Procedure Code imposes a bar to a party who has withdrawn a suit/appiication without leave or liberty of the Court to institute a fresh suit over the same subject matter, is in all favours, applicable in the present case..." The provisions of Order XXV Rule 1(1) of the Civil Procedure Code,[Cap.33 R.E 2002] which has attracted the attention of both Counsel in this matter stipulates as follows: "(1) Where, at any stage of a suit, it appears to the court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are residing out of Tanzania, and that such plaintiff does not, or that no one of such plaintiffs does, possess any sufficient immovable property within Tanzania other than the property in suit, the court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant" (the emphasis is of this Court). Page 25 of 27 Clearly, the law not only permits the Defendant to make an application for security of costs at any stage of a suit but even the Court may do so suo motu. The implication is that the Defendant will only be barred from making application for security for costs when the suit has come to an end. The phrase "at any stage of the suit" is broad enough to encompass all events and activities pertaining to the suit from the inception up to judgment stage. The provisions of Item 21 to part III of the Law of Limitation Act as regards limitation period are therefore inapplicable to the facts in the present matter. Where that other written law stipulates expressly that an application may be lodged at any stage of a suit it will be hard to import any limitation period. As to when the cause of action in so far the present matter is concerned, considering what I have held in so far as the limitation period is concerned, this now becomes a matter for academic exercise. In the event and for the foregoing reasons, all the preliminary objections are hereby dismissed with costs, which shall be in the cause. The Applicant is hereby allowed and ordered to file an amended affidavit within seven (7) days of this Ruling and Order. R.V. MAKARAMBA JUDGE 24/04/2012 Page 26 of 27 Ruling delivered this 24th day of April, 2012 in the presence of Mr. Salim Mushi, Advocate for the Applicant and M/s Magdalena, Advocate for the Respondent. JUDGE 24/04/2012 Page 27 of 27 Ruling delivered this 24th day of April, 2012 in the presence of Mr. Salim Mushi, Advocate for the Applicant and M/s Magdalena, Advocate for the Respondent. R.V. MAKARAMBA JUDGE 24/04/2012 6,712 Words Page 27 of 27