MMG GOLD LTD VS HERTZ MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 118 OF 2015 (Arising from Commercial Case No. 37 of 2015) MMG GOLD LIMITED...................................................... APPLICANT VERSUS HERTZ TANZANIA LIMITED........................................... RESPONDENT 25th November, 2015 & 18th February, 2016 RULING MWAMBEGELE, J.: This is a ruling in respect of a preliminary objection raised by the respondent Hertz Tanzania Limited against an application filed by the applicant MMG Gold Limited for extension of time to file an application for leave to appear and defend a summary suit. The preliminary objection (henceforth "the PO") has is composed of the following two points: 1. The affidavit is incurably defective as it contains hearsay evidence by referring to the communication used while there is "without prejudice" disclaimer; and 1 2. The affidavit is incurably defective as it contains as it contains matters of law, arguments and conclusions. The PO was argued before me on 25.11.2015 during which Mr. Themistocles Rwegasira, learned counsel, appeared for the respondent and Mr. Innocent Mushi, learned counsel, appeared for the applicant. The oral hearing was preceded by the learned counsel filing skeleton written argument as dictated by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. For the PO, Mr. Rwegasira has been very brief but to the point in fronging his arguments. He argues that para 5 of the supporting affidavit contains matters of hearsay when it refers to communication used without containing the "without prejudice disclaimer". The use of this communication to justify delay amounts to hearsay, he argues. Mr. Rwegasira also argues that para 7 (a) of the affidavit contains matters of law when it refers to pecuniary jurisdiction of the court which befitted to be raise as a PO. Para 7 (b) of the affidavit contains arguments when it refers to the amount claimed as being unrealistic, he argues. The learned counsel submits that an affidavit has got to be factual and free from extraneous matters such as hearsay, arguments, objections, prayers and conclusions. The learned counsel cites an unreported decision of the Court of Appeal of Mustapha Raphael Vs East African Gold Mines Ltd, Civil Application No. 40 of 1998 and Uganda Vs Commissioner of Prisons ex parte Matovu [1966] EZ 514 to support his argument. The learned counsel supplied additional authorities through an administrative letter to the Deputy Registrar 2 of this court. These include Transport Equipment Ltd Vs Devram Va/ambhia, Civil Application No. 18 of 1993, an unreported Full Bench decision of the Court of Appeal and Leila Jalaludin Haji Jama! Vs Shaftin Jalaludin Haji Jamai, Civil Case No 373 of 2001 and Tanganyika Law Society Vs The Attorney General, unreported decisions of this court. Along with the skeleton arguments, the learned counsel for the respondent raised yet another preliminary objection to the effect that the applicant ought not to have cited the provisions of section 95 of the CPC in support of the application. He cited the Vaiambhia case (supra) And Aero Helicopter (T) Ltd Vs F.N. Jansen [1990] TLR 142 to buttress the point that the inherent power of the High Court under section 95 of the CPC is exercisable where the law has made no provision governing the particular matter at hand. Based on the foregoing, the learned counsel submits for dismissal of the application with costs. On the other hand, Mr. Innocent Mushi, the learned counsel for the applicant argues against the PO that it does not qualify to be a point of preliminary objection in that it is not a pure point of law because it needs to be proved by evidence. The learned counsel relies on the oft-cited Mukisa Biscuit Company Vs West End Distributors Limited [1969] EA 696 as followed in Shakida Abdul Hassanali Kassim Vs Mahd Mohamed Gulamali Kanji, Civil Application No. 42 of 1999 (unreported) and the Jamal case (supra) to reinforce this proposition. 3 Alternatively, the learned counsel argues, even if we find there are paragraphs which offend the law, the remedy will be strike off the offensive paragraphs and leave the rest of the affidavit intact as was the case in the Tanganyika Law Society case (supra). Otherwise the learned counsel admits that a court of law should not act on an affidavit which does not distinguish between matters stated on information and belief and matters stated on the deponent's own knowledge as was held in Serikaii ya Mapinduzi Zanzibar (SMZ) Vs Farid Moh'd Abdallah [1998] TLR 355 at 356. The learned counsel for the respondent has nothing useful to rejoin, except for conceding that the offensive paragraphs must be struck off and that once the offensive paragraphs are struck off, there will be nothing left to support an application for extension of time to file an application to defend the summary suit. I propose to start with a complaint over the citation of section 95 of the CPC. The learned counsel for the respondent is right that this application is only applicable in situations where there is no other provision of law to cater for the problem - see: Athar Mujtaba Vs Heena Mujtaba, Miscellaneous Civil Application No. 425 of 2013 (unreported) and Bunda District Council Vs Vinai [2000] TLR 49; the decisions of this court and Aero Helicopter (T) Ltd Vs F. N. Jansen [1990] TLR 142; the decision of the Court of Appeal. The hallmark of these decisions is that where there is a specific legislation inherent powers, which are discretionary, should not be invoked. This will be sufficient on the applicability of the inherent powers of this court. Suffice it to say, in the present instance, there are applicable provisions of the law to 4 cater for the situation and have been cited in the chamber summons along with section 95 on inherent powers. In the circumstances, the provisions of section 95 of the CPC ought not to have been invoked. Now back to the present case. I will decide on both remaining points together. The paragraphs complained of are 5 and 7. They read: "5. That taking into account the content of paragraph 3 and 4 herein above the applicant herein through its finance department was going on communicating with the respondent via their advocates to work out financial differences and settle the matter, the belief which was relied upon by the applicant and shadowed the effort to file an application to appear and defend the stated summary procedure within the time frame of twenty one days. Attached herein marked "MMG2" is a draft copy of the settlement deed from the respondent's advocates and email communications for which leave of this Honourable Court is craved to form part of this affidavit." "7. That the stated financial differences stated under paragraph 5 above which casts a shadow in settling the suit are as hereunder provided: 5 a. That the actual amount of USD 32,000.00 (United State Dollar, thirty two thousand), which is equivalent to Tshs. 60,000,000/= (sixty Million only) which is below the pecuniary jurisdiction of the High Court Commercial Division was already been settled. b. That the sum of Tshs. 80,000,000/= (Eighty Million only) claimed by the plaintiff purporting to be out of defendant's breach of contract, tortuous injuries due to frustration in making fallow up of the claimed amount and inconveniences are not realistic and within the per view of the summary procedure suit as provided for under the law." I agree with Mr. Rwegasira that the affidavit in support of the application is not free from defects. The paragraphs complained of offend the law for presenting the law, arguments or hearsay. Phrases like "the amount is not realistic" in paragraph 7 (b), "below the pecuniary jurisdiction" in paragraph 7 (a), "above the applicant herein through its finance department was going on communicating with the respondent via their advocated to work out financial differences and settle the matter" in paragraph 5, and "are not within the per view (sic) of summary procedure" in paragraph 7 (b) cannot be said to be not offensive of the law relating to affidavits. They are legal arguments, matters of law and/or hearsay which make the affidavit defective. 6 This problem is not a virgin territory; it has already been adequately traversed by the courts; it was dealt with at some length in the celebrated case of Uganda Vs commissioner of Prisons Ex Parte Matovu, [1966] EA 514; a case cited to me the learned counsel for the respondent. In that case, like in the present case, the applicant had filed in court an affidavit in which he set out in detail the grounds of law upon which he proposed to rely in support of his application. Sir Udo Udoma, C.J, speaking on behalf of Sheridan and Jeffreys Jones JJ had this to say: "The affidavit sworn to by counsel is also defective. It is clearly bad in law ... as a general rule of practice and procedure, 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. Such an affidavit must not contain an extraneous matter by way of objection or prayer or legal argument or conclusion". [Emphasis added]. The above principle was reiterated by this court (Shangwa, J.) in Peter Lucas Vs Piii Hussein and Another), Miscellaneous Civil Application No. 33 of 2003 (unreported). 7 In the light of the foregoing case law, and as I have alluded to hereinabove, the affidavit in support of this application is offensive in some paragraphs for asserting legal arguments. An affidavit for use in court, as was stated in the Ma to vu case (supra) being a substitute for oral evidence must, inter alia, not contain an extraneous matter by way of objection or prayer or legal argument or conclusion. In the result, the PO by Mr. Rwegasira is sustained. I therefore proceed to expunge the paragraphs complained of; that is, paragraphs 5 and 7 are hereby expunged from the affidavit. In view of the fact that, after expunging paras 5 and 7 of the affidavit, the remaining paras can still, somehow, support the application, the application will be heard on another date to be fixed today. This application succeeds to that extent. Costs will be in the cause. Order accordingly. DATED at DAR ES SALAAM this 18th day of February, 2016. J. C. M. MWAMBEGELE JUDGE 8