MARTHA KAUENI RENJU VS AMBROSE BRIXIO LUGENGE MISC

P agel of 8 IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DARES SALAAM MISC COMMERCIAL APPLICATION NO 136 OF 2018 (Arising from Ordinary Application No 260 of 2017) BETWEEN MARTHA KAUENI R E N J U -—————— — --------- --------APPLICANT VERSUS AMBROSE BRKIO LUGENGE---------------------------- -------------l sT RESPONDENT JOSEPH MAKANDEGE-------------------------------------------------- -2n d RESPONDENT RULING SONGORO.J This is a ruling on preliminary objection on points of law raised by Ambrose Brixio Lugenge and Joseph Makandege the Respondents to oppose an application filed by Martha Kaveni Renju the applicant who made an application for a court order to restrained respondents from acting as officers or agents of Independent Power Tanzania Limited. Previously the Respondents raised 9 points of objection but at the hearing only three preliminary objections were retained and argued by Respondent's counsel. So the objections which were argued are as follows 1) The verification clause in the deponent affidavit in support of the application is defective and contravenes the provision of Order VI. Rule 15(2) of the Civil Procedure Code Cap 33 IR.E 20021 2) The affidavit Jurat of attestation contravenes Section 10 of the Oaths and Statutory Declaration Act Cap 34. 3) The application contravenes 10(1) (2) and Rule 11 and 52 of the High Court (Commercial Division) Procedure Rules, 2012 governing the Commercial Court proceedings, for having been commenced by a way of originating chamber summons. Taking into account that preliminary objection on points of law have to heard first before the main application the court invited the parties to pursue the preliminary objection on points of law Page 1 o f8 Page 2 o f8 which were raised. So Ms. Samasalah Learned Advocate appeared for applicants and Mr. Joseph Sungu, Learned Advocate appeared for Respondents and pursue preliminary objections on points o f law which were raised. To start with Respondent's counsel submitted on preliminary objection No 1 and stated that according to the provision o f O rd er V I, R u le 15(2) o f th e C iv il P ro ced u re C od e C ap 33 1R.E 20021 that the person verifying is under statutory obligation to specify by numbering paragraph on which he verify from his own knowledge, and paragraphs or facts which he verify from information received and he believe it is true. The counsel the drew the attention o f the Court that in the verification clause depone by Martha Renju she only stated what is stated from paragraphs 1 to 9 is true to the best o f knowledge. The Counsel then insisted that each paragraph m ust be stated by their numbers. While on this point M r Sungu that the omission to cite each paragraph in the verification clause that offends the provisions o f Order VI, Rule 15 (2) o f the Civil Procedure Code and turn the verification clause to be defective. To substantiate his point the Counsel drew the attention o f the court to decision in the case between Kubash and Sevbook Versus Hasham Kasha & Sons Tanzania [19721 HCD p.288 where it was decided that the court may not act on the affidavit which do not distinguish matter on information and belief and matters which come from the deponent’s knowledge. Therefore in view o f his submission in ground No 3 he prayed to the court to dismiss the application on the basis is supported by defective affidavit. Submitting to the 2nd ground o f preliminary objection the Respondents counsel argued that Section 10 o f Oath and statutory declaration Act No 34 TR.E 20021 statutorily requires that a Jurat o f attestation has to be in compliance with what is provided for in Schedule to the Act. The counsel then pointed out that in the Jurat o f Attestation o f the Affidavit o f Martha Renju there was an omission o f the words o f “Who is known to me personally” Also the verification clause the name o f Kavine was not stated. In view o f the said defects in the Jurat o f attestation the Respondent's Counsel prayed that the court find and decide that the affidavit is defective and that turns the application to be defective and ought to be dismissed. Page 2 o f8 Page 3 of 8 Submitting on 3rd ground o f preliminary objection the counsel pointed out that the applicant filed an ordinary application in court and that contravened the provisions o f Rule 10(1) and (2) o f the High Court Commercial Division Procedure Rides GN 250 o f 2012 which requires the application in Commercial Court be commenced by way o f originating summons. Taking into account the applicant was instituted in court as ordinary application then the application is not proper before the Court in the sense it contravenes Rule 10(1) and (2) o f the High Court Commercial Division Procedure Rules GN 250 o f 2012 which requires application be commenced by way o f originating summons. Mr. Sungu prayed that the application be dismissed for not being compliant with Rule 10(1) and (2) o f the High Court Commercial Division Procedure Rules GN 250 o f 2012. In reply to the preliminary objection No 1 that verification clause is defective, Ms. Samasala for the applicant pointed out the objection is based Order VI, Rule 1 o f the Civil Procedure Code which defines pleadings to mean a plaint and written statement o f defence. It was the views o f the applicant counsel that the objection which based on the verification contained in the affidavit is quite misplaced because the affidavit is not a pleading. So statutory requirements on pleadings do not apply to the affidavit. In the alternative, Ms. Samasala submitted that even i f the court find an affidavit is pleadings the verification clause stated in the affidavit o f Martha Renju the deponent is proper because paragraphs are specified by numbers and the deponent has stated paragraph which she verified on the basis o f her own knowledge and what he verified from information she believed to be true It was the argument o f the Respondent's counsel that the legal requirement o f verification clause has been complied with.. The counsel prayed to the court to dismiss the objection raised. Responding, to the objection No 2 that in the Jurat o f Attestation o f the Affidavit o f Martha Renju contravenes Section 10 o f Oath and statutory declaration Act No 34 IR.E 20021 which requires that that a Jurat o f attestation to be in compliance with the Schedule to the Act to the Act No 34 o f 2002, Ms Samasalah replied that the preliminary objection is legally misconceived because the applicant counsel have failed to show if the deponent in making her affidavit was required to make statutory declaration pursuant to Oath and statutory declaration Act No 34 IR.E 20021. Page 3 of8 Page 4 o f8 Mr. Samasala then explained the deponent affidavit contains facts which form evidence o f the deponent. Like other affidavit what the deponent was supposed to state is matters which she depone from her own knowledge and what she depone from other source o f information she believe to be true. The applicant counsel then submitted that the jurat o f attestation is quite proper and comply with the legal requirement. While on this point the Respondent's counsel prayed to the court to dismiss the objection raised. Submitting on preliminary objection on point o f law No 3 cited above the applicant counsel agreed that the application has been filed as Ordinary Application in line with provisions o f Rule 10(1) and (2) and Rule 11 o f the High Court Commercial Division Rules GN 250 o f 2012 which requires an application to the Commercial Court be filed by way o f Originating Summon The applicant's counsel then clarified that Rule 10 (1) o f the GN 250 Of 2012 creates an exception to the General Rule and allows proceedings which are governed by other written law to be instituted in the manner in which they are prescribed in their respective law. She then explained that the current application has been instituted under Insolvency Rules. The counsel then added that Rule 415 o f Insolvency Rules statutorily permits the applicant to file ordinary application. In view o f the above, he submitted that the preliminary objection on the filing o f the application is misconceived and pray to the court to dismiss the 6th preliminary objection on point o f law. The court noted that preliminary objection on points o f law argued and find for convenience purposes the court will address a preliminary objection point o f No 3 cited above which is the contention on the manner the applicant application was filed. In addressing the above mentioned point I find there is no dispute that the applicant application was instituted as Ordinary Application. The point o f departure between the applicant and respondent is whether pursuant to Rule 10 (1) o f the High Court Commercial Division Procedural Rules GN 250 o f 2012 it was legally proper for the applicant to file Ordinary Application. Honestly I have revisited the provisions o f Rule 10(1) and find its Marginal Note reads as follows; Institutional o f Proceedings Page 4 of 8 Page 5 o f8 Then Rule 10 (1) of the High Court Commercial Division Procedural Rules GN 250 of 2012 provides as follows Proceedings in the court shall, except in the case o f proceedings ■which these Rules or under any written law are required to be instituted by any specified mock o f commencement be instituted by a plaint or by originating summon. I have subject into close scrutiny all points raised by the two counsels in line with the provisions of Rule 10 (1) of the High Court Commercial Division Procedural Rules GN 250 of 2012 and easily find the Rule provides two distinct mode of institution of proceedings in Commercial court. The first mode and procedure of commencing proceedings is by a way of plaint or originating summon. That is the point which Mr Sungu Learned Advocate of the Applicant is basing his objection. However, the same Rule stipulate a second procedure of commencing the proceeding in commercial court, apart from filing a plaint or originating summon by stating that the proceedings may be commenced by mode envisaged by any other written law. This is a point which Ms. Samasalah has been trying to put forward before the court. Quite frankly I fully agree with Ms. Samasalah that the mode o f commencing proceeding in the Commercial Court is not limited to plaint and originating summons alone. As envisaged by Rule 10(1) of the High Court Commercial Division Procedural Rules GN 250 of 2012, the rule accommodates other modes o f commencing proceedings envisaged under any other written law. A good example of the exception is where a party file “a petition*’ to challenge Arbitral Award which is made under Arbitration Act Cap 15. In that regard I the preliminary objection No 3 has no merit and is hereby dismissed for lack of merit because the application is filed under Section 416(1) and 253(l)(n) (e) (w) (2) (a) & (3) of the Companies Act Cap 212 and Rules 415 and 419 (1) (2) (3) of the Companies Insolvency Rules 2005. That is all the court may say in point No 3. Page 5 o f8 Page 6 of 8 Turning to the preliminary objection No 1 cited above the Respondent Counsel pointed out that the deponent verification is defective and offends the provision o f O rd er V I. R u le 15(2) o f th e C ivil P ro ced u re C o d e C ap 3 3 1R.E 20021 in the sense the deponent did not state by numbering the paragraphs which facts were depone according to his own knowledge and which are depone according to the information he received from other sources which he believes to be true to the best o f his own knowledge. Quite frankly before going into the m erit o f the preliminary objection I find for the benefit o f the parties, it is important to highlight the purpose and aim o f verification clause in the pleadings or affidavit. It was well pointed out in the case o f Kiganga and Associates Gold Mining Company Limited Versus Universal Gold N L r20021 TLR p 129 that, the function o f “verification clause” is aimed to counter possible abuse o f court process and fixing responsibility to authorized officials With that clarification in mind, I revisited the provisions o f Rule 15(2) o f Order VI o f the Civil Procedure Code Cap 33 IR.E 20021 winch the preliminary objection is based and find it states as follows- The person verifying shall specify, by reference to the numbered paragraphs o f the pleading, what he verifies o f his own knowledge and what he verified upon information received and believed to be true. So reading the provisions o f Rule 15(2) o f Order VI o f the Civil Procedure Code Cap 33 TR.E 20021 I find it imposes statutory duty to the person verifying to specify by reference to the numbered paragraphs o f the pleadings on what he verifies from his own knowledge and what he verified upon information received and believed to be true. W ith that clarification on what is provided for in Rule 15(2) o f Order VI o f the Civil Procedure Code Cap 33 IR.E 20021 1 revisited the verification clause which was depone by Martha Renju and find it states as follows; I M artha Kaveni Renju do hereby state and verify that all that is stated in paragraphs 1 to 19 (Inclusive) is true to the best o f m y own knowledge and belief, save for what I say in paragraphs 2 and 7 (Inclusive) and paragraph 9 which is true according to information I have received from Joseph Casson (Managing Director o f Standard Chartered Bank (Hong Kong) Limited, which information I believed to be true and correct Page 6 o f8 Page 7 o f8 So guided by what was verified by Martha Kavini Renju in her verification clause I find she stated paragraphs 1 to 19 are true to be o f her own knowledge and belief save for what was stated in paragraphs 2 and 7 are true according to the information she received from Joseph Casson which she believed to be true. I have carefully considered what was stated in the verification clause and the legal requirement set out in Rule 15(2) o f Order VI o f the Civil Procedure Code Cap 33 IR.E 20021 the court easily find in the verification clause there are reference on paragraphs which Martha Renju, the deponent has depone according to her own knowledge, and other matters depone according to information received from Joseph Casson. I m ust admit that they may be several style o f making reference to numbers o f paragraphs as it appear in the affidavit before the court, but the most important legal point is that the paragraphs and facts in the affidavit m ust be verified by reference to numbers and that has been done In that regard I find the verification o f paragraphs and matters depone by deponent in her affidavit were properly verified and according to the provision o f Rule 15(2) o f Order VI o f the Civil Procedure Code Cap 33 IR.E 20021. For reasons explained above the preliminary objection on point o f law No 3 also failed and is dismissed. Reverting to the preliminary objection No 2 cited above that the application is defective for lack o f proper verification and offends Section 10 o f the Oaths and Statutory Declaration Act Cap 33. The Court has revisited the preamble o f the Oaths and Statutory Declaration Act Cap 33 and fined its states as follows An Act to make provision for the administration o f oaths and affirmations injudicial proceedings and for statutory declarations. Next the court revisited Section 10 o f the said Act which the objection is based and find it provides as follows Where under any law fo r the time being in fo rce any person is required or is entitled to make “a statutory declaration”, the declaration shall be in the fo rm prescribed in the Schedule to this Act: Page 7 o f8 Page 8 of 8 Further there is a proviso which reads as follows Provided that where under any written law a form o f statutory declaration is prescribed for use for the purposes o f that law such form may be used for that purpose. Thus upon reading together the preamble o f the Act and the provision o f Section 10 o f the Oaths and Statutory Declaration Act Cap 33 honestly I find they do not set any legal requirement on the affidavit which is to be used in court as evidence. In this regard I agree with applicant's counsel that the 4th preliminary objection on point o f law is misconceived for being raised on the provision o f the law which have nothing to do with affidavit. I therefore dismiss the 4*11 preliminary objection on point o f law. Finally I find all preliminary objections on point’s law raised by respondents have no merit and are hereby dismissed. The costs to follow the event Signed and Dated at Dar es Salaam on this 17th day August 2018 Page 8 of 8