METRO PETROLEUM T LTD VS UNITED BANK OF AFRICA MISC

Page 1 of 10 IN THE HIGH COURT OF TANZANIA (COMMERCIAL COURT) AT DAR ES SALAAM MIS COMMERCIAL CAUSE NO 205 OF 2015 (Arising from Original Commercial Case No 98 of 2014 BETWEEN METRO PETROLEUM TANZANIA LIMITED----------------------------------------------1STAPPLICANT BILL KIPSNAG ROTICH------------------------------------------------------------------------2n d APPLICANT FLORENCE CHEKOEC------------------------------------------------------------------------- 3r d APPLICANT PREMIUM PETROLEUM CO LTD--------------------------------------- 4t h APPLICANTS VERSUS UNITED BANK OF AFRICA-----------------------------------------------------REPONDENT RULING Date of Hearing ; 15/10/2015 Date of Ruling; 30/10/2015 SONGORO, J On the 7th of day of August, 2015, the four Applicants namely Metro Petroleum Tanzania Limited , Bill Kipsnaga Rotich, Florence Chekoech and Premius Petroleum instituted an application applying for leave to appeal to the Court of Appeal against the decision of this court in Commercial Case No 98 of 2014 which its judgment was delivered on the 24/8/2015 . According to the Chamber Summon of the Applicant, the application was made under Section 5 (l)(c) of the Civil Appellate Jurisdiction Act , 1996 , Rule 45 (a) of the Court of Appeal Rules 2009 and any enabling provisions of the law. Also, the application was supported by an affidavit sworn by James Andrew Bwana, Learned Advocate of the Applicant. Page 2 of 10 In response to the application United Africa Bank the Respondent with assistance of their counsel filed a counter affidavit to oppose the application. In addition to that, Respondent also filed a Notice of Preliminary Objection which contained two points of objection. In his first objection, Respondent contested that, the Application is defective for non citation of the proper provisions of the law. In the second objection, Respondent contested that, the affidavit in support of the application is defective for containing legal matters. In the light of the objection, he prayed for the dismissal of the Applicants' application for lack of merit with costs in favour of the Respondent. Thus on the 15/10/2015 when the application was called for hearing the court decided that, the two Preliminary objections raised by the Respondent be decided first, and depending with the outcome of the two objection, the court may proceed to determine the main application later In the light of the above, Ms Ernestila, Learned Advocate for the Respondent argued the two preliminary objections while pressing for dismissal of the application. Page 3 o f 10 To start with Respondent's Counsel informed the Court that, the Applicants' application is for leave to appeal to the Court of Appeal. She then stated that, going by the Chamber summon in support of the application, it appear the application is made under Section 5 (l)(c) of the Civil Appellate Jurisdiction Act, 1996, Rule 45(a) of the Court Appeal Rules, 2009 and any enabling provisions of the Law. The Learned Advocate then argued there is no existing law in our jurisdiction which is called Civil Appellate Jurisdiction A c t, 1996. So by citing unknown piece of legislation, the application is incompetent for not citing enabling provisions of the law which may allow the court to entertain and decide the application. To support her argument, Mr. Ernestilla pointed out to the court that, there are number of court decisions which have held that, none citation of the enabling provisions of the law renders the application to be defective, and ought to be dismissed. To emphasis her point, Respondent's Counsel drew the attention of the Court to decision in the case of Ndeshio David Moshi Versus Telecommunication Company and another Civil Application No 78 of 2014, and a decision of Heinan International Versus Salhad Rwegasira Civil Reference No 22 of 2005 which both of them held none citation of the proper provisions of the law under which the application is made renders the application to be incompetent. Page 4 o f 10 It was the argument of the Respondent's counsel that, due to the fact the applicant has cited in the application a law which do not exists, then the application is incompetent ought to be struck out. Moving to her second point of objection, the Respondent's counsel faulted the affidavit in support of the application which was sworn by James Andrew Bwana, Learned Advocate of the Applicant by stating that, in paragraphs 10(a) (b) and (C), the affidavit contains legal issues which is wrong. Then relying on the legal Principle enunciated in the case of Uganda Versus Commissioner of Prison Ex Parte Matovu , 1966 EA 515 she said an affidavit for use in court being a substitute for oral evidence , should only contain statements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. The Counsel then pointed out that, paragraph 10 of the Applicant affidavit contains issues of laws which are not permissible and turn the application to be defective. In view of his submissions, Respondent's Counsel prayed for dismissal of the application on the grounds its affidavit is defective. In response to the Respondent submissions, Mr Bwana Learned Advocate for Applicants first made his submission on the second Page 5 of 10 objection, on whether the affidavit in support of the application is defective because it contains legal issues. In his brief submission, the Applicant Counsel told the court that, whatever stated in paragraph 10 of his affidavit in support of the application are facts of legal matters, and actions which were within his knowledge as matters which supports the application. So what was reported in paragraph 10 are not legal matters perse, but facts based on legal issues which supports the application. Then relying on the decision in the case of DB Shapriya and Co Ltd Versus Bush International BV [2001 1 EA 47 (CAT) the Court of Appeal has stated that, the affidavit must contain facts under the oath. He then argued that, looking at what is stated in paragraph 10 are matters of facts which recaptures some legal issues which may not render an affidavit to be defective. He prayed to the court to dismiss the first objection. Returning back to the first objection Applicants' counsel pointed out that, going by legislation stated in the Chamber Summons, it is true that, there is a citation which reads the Application is made under Section 5 (l)(c) of the Civil Appellate Jurisdiction Act, 1996, Rule 45(a) of the Court Appeal Rules, 2009. Page 6 o f 10 He then pointed out that, the words "Civil" and "1996" which appears in the chamber summons are both typing errors. The Applicant Counsel then clarified that, the proper citation of the Law is "Appellate Jurisdiction Act " . He also added the year in which the Appellate Jurisdiction Act was enacted is 1979 and not 1996 as stated in the Chamber Summons. It was his argument that, the noted errors are purely "typing errors" which always are excusable once are detected by the parties or the court. He then insisted that, since there is typing errors, the remedy for the court is to allow the Applicants to amend the Application. So, finally, Mr. Bwana prayed to the court to dismiss the objection raised and allow him amend the application. The court considered both points of objections and submission from the parties and find are points worth to be considered by this court. To start with, I first examined the second objection on the contents of affidavit in support of the application and on that, point I quite agree with the legal position stated in the case of Uganda Versus Commissioner of Prison Ex Parte Matovu , 1966 EA 515 that, an affidavit is a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes Page 7 o f 10 either (1) of his own personal knowledge or (2) from information which he believes to be true. Now relying on the guideline expressed in the case of EX Parte Matove cited above, I revisited paragraph 10 (a)(b)and (c) of the Applicant affidavit and find it contains "factual and legal issues" which Mr. Bwana depone he believed are worth to be considered by the Court of Appeal. It appears to me that , he was just informing the court that, as trained and practising lawyer "he believed" once the leave to appeal is granted and the appeal , the Court of Appeal will be called upon to determine legal issues stated in paragraph (a), (b) and "C". It appears to me the words "I believed "which appears in paragraph 10(a)(b) and (C) which appears on the second line turns what was stated in paragraph 10 to be his own believe the only thing his believed also involved some factual and legal issues. The fact that, paragraph 10 contains also some legal issues may be substantiated Respondent reply in paragraph 7 of his Counter Affidavit sworn by Elizabeth Muro which Respondent replied paragraph 10 by giving some factual argument including issues that, court summons were properly saved. Page 8 of 10 It occurs to me therefore, that, bearing in mind, Respondent in paragraph 7 of his counter affidavit has reply to some the factual issue prudence and common sense shows, indeed paragraph 10 of the Applicantas affidavit also contains factual issues which the court may not down play them. This means even if there are some legal issues which were pleaded they may not turn the affidavit in support of the application incurable defective. With that, court finding, I will pause here and move to the 1st objection with a promise to come later to it. Now moving to the 1st objection, I find there two lines of argument competing to opposite direction. Respondent is maintaining that, the Chamber Summon, Application cited none existence provisions of the law, while the Applicant is claiming it was typing errors. Applicant claim the errors were on words "Civil" and "1996". I have carefully gone through the cited provisions of the law in Chamber Summon in support of the application, and find the Applicant submission that, there was a typing error in the cited law has grain of truth because in our jurisdiction we do not have a piece of legislation known as "Civil Appellate Jurisdiction Act 1996, instead we have " The Appellate Jurisdiction Act, Cap 141" [R.E.2002] which was enacted in 1979. What I noted from casual reading the citation and the actual Act appears to resemble. Page 9 o f 10 My second perusal on what was cited in the chamber summons and the relevant law which is the Appellate Jurisdiction Act, I noted Section 5(1) (C) which has been cited is a relevant and enabling provisions in the Appellate Jurisdiction Act Cap 141 which is enabling provisions. In view of that, finding that, relevant section was quoted in the chamber summons I am persuaded that, the two words "CIVIL" and "1996" are typing errors and they may not turn the chamber summons to be incurable defective. And so far I have no good reasons to differ with what was said by Mr. Bwana that, the two words were typing errors. Bearing in mind the court findings that, the two were errors, and Pleadings are matters which the court may allow to be amended pursuant to Rule 24 (3) (a) of the High Court (Commercial Division) Procedure GN 250 of 2012, I allow the Applicants to amend his chamber summons and paragraph 10 of his affidavit and file the amended application within 7 days. The Respondent objection partly succeeds and Applicant is also ordered to pay Respondent's cost incurred in pursuing the objection. Dated at Dar es Salaam this 30th day of October, 2015 H.T.SONGOROife JUDGE Delivered at Dar es Salaam this 30' H.T.SONGORO^ IS JUDGE r o The Ruling was delivered in the pres ’ e Mf.<■Ti mothy Mwakisamvu, Learned Advocate for Applicants and absence of Respondent and their counsel.