MOHANS OYSTERBAY DRINKS LTD VS BRITISH AMERIRICAN TOBACCO LTD COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 90 OF 2014 MOHANS OYSTERBAY DRINKS LIMITED............. PLAINTIFF VERSUS BRITISH AMERICAN TOBACCO KENYA LIMITED......................................................DEFENDANT RULING Mansoor, J: Date of Ruling- 07™ MARCH 2016 An objection was taken by Advocate Dilip Kesaria representing the plaintiff that the witness statement of Sophia Akaka Mukoba, the witness of the defendant, did not comply with the mandatory requirements of Rule 48 (1) (a), Rule 48 (2) and Rule 49 (1) of the High Court (Commercial Division) Procedure Rules, 2012. These Rules provides as follows: Rule 48 (1) A witness statement shall: (a) be made on oath or affirmation; Rule 48. (2) The witness statement shall be substantially in the form prescribed in the Third Schedule of these Rules. Rule 49. (1) In any proceedings commenced by plaint, evidence-in-chief shall be given by a statement on oath or affirmation. Rule 48 and Rule 49 of the High Court Commercial Division Procedure Rules sets out the general rule as to how evidence is to be given and facts are to be proved. This is that in a suit commenced by plaint, evidence in chief shall be given in writing which is by way of a witness statement, and that a 2 witness statement must be in a format prescribed by the Rules. Counsel Kesaria said since the witness statement is a statement on oath, it must comply with the provisions of Section 8 of the Notaries Public and Commissioner for Oaths Act, Cap 12 in that the place at which the oath has been taken must be stated in the jurat of attestation. He referred me to the case, of DB Shapriya and Co Ltd vs Bish International EALR (2002)1 EA 47, in which it was held that “an affidavit is governed by certain rules and requirements that have to be followed religiously. The place at which an affidavit is sworn or oath is taken has to be shown in the jurat... an affidavit which does not show where it was sworn or oath taken is defective. ” Counsel Kesaria also referred me to the case of Oryx Oil Co. Limited vs MC Juro Shipping Agency Limited, Commercial Case No 263 of 2002, in which it was stated that “the omission to state the place where the affidavit was administered is fatal”. 3 Ms Fatma Karume, the Counsel for the Defendant countered the arguments set forth by Counsel Kesaria and the cases cited. She said that the cases cited and the mandatory requirements of Section 8 of the Notary Public and Commissioner for Oaths Act applies to affidavits and not to witness statements. She said affidavits and witness statements are not similar documents. She said while a deponent in the affidavit might not be required to appear in court for cross examination, a witness who gave a statement is required by the Rules to appear in court, testify before the Court that he or she is the one who made the statement, and then he or she can be cross examined. She said the purpose and rationale of introducing witness statement in court in lieu of witnesses’ oral examination in chief, it did not intend to make those statements affidavits. She said the rules of affidavits cannot be made to apply to witness statements. She said the omission to state the place at which the oath was administered in a witness statement do not take away the witness right to give evidence, and that a mistake done by the Notary Public cannot impact the party’s right to bring witnesses. I have carefully considered the submissions of the Counsels and I would say that, there is no dispute that a witness statement is a sworn evidence and it is a witness’s evidence in chef, and in the proceedings at the High Court, Commercial Division evidence in chief are given by way of witness statement. Evidence may also be given by affidavits if a party applies to the court for a direction that evidence be given by affidavit. The court may give a direction under rule 50 of the High Court (Commercial Division) Procedure Rules, that evidence shall be given by affidavit instead of or in addition to a witness statement, and this can be done during the Final Pre Trial Conference, before the trial commences. Rule 50 provides as follows: Rule 50 Notwithstanding the provisions of sub rule (1) of rule 48(1), the Court shall at the Final Pre-trial 5 Conference determine the manner in which evidence is to be given at any trial or hearing by giving appropriate directions as to: (a) the issues on which it requires evidence; (b) the way in which any matter is to be proved; and (c) which witness will be required for cross examination. An affidavit is not a witness statement thus the cases referred to me by Counsel Kesaria are not applicable. A person who gives evidence by affidavit, affirmation or deposition is called a “deponent”; and a person who gives evidence by witness statement is a ‘witness’. Thus a witness statement is not an affidavit, and the rules governing affidavits cannot be made to apply to witness statements. I agree however, that, Affidavits and witness statement have some common features. They both must comply, inter alia, with the following: (a) the date and place made. (b) they both must be sworn statements of the maker and the name of the person before whom it is sworn must be given; On this there is a difference and in the case of a witness statement , the statement must be in the maker's own words, while in affidavits information received from third parties, and statements of beliefs are permitted, provided that the source of information and belief are given and verified. There are strict requirements applying to affidavit as provided by Order 19 of the Civil Procedure Code, such as, affidavits must state which of the statements in it are made from the maker's own knowledge and which are matters of information and belief; and the source for any matters of information and belief must be shown. Whereas in a witness statement, the statements must be on a makers own knowledge and statements of belief and information from third parties are not allowed, since that would amount to hearsay evidence. 7 An affidavit is the testimony of the person who swears it. A witness statement is the equivalent of the oral evidence which the maker would, if called, give in evidence. The jurat of an affidavit is a statement set out at the end of the document which authenticates the affidavit. It must be signed by the deponents; it must be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature; and, contain the full address of the person before whom the affidavit was sworn; An affidavit must be sworn before a person independent of the parties or their representatives. Only the Commissioner for Oaths may administer oaths and take affidavits. A witness statement on the other hand, must include a statement of truth by the intended maker that the facts stated in the witness statement are true so as to avoid verifying a witness statement containing a false statement without an honest belief in its truth. This shows that although there are some similar requirements between affidavits and witness statements, a witness 8 statement is not an affidavit and the rules governing affidavits do not apply to witness statements. The witness statements have been introduced by the High Court Commercial Division Procedure Rules, 2012, and the Format to be used have been given in the Schedule to the rules. The rules, however, did not give power to court to reject or strike out a witness statement which does not comply with Rule 48 or 49 in relation to its form or contents. Since the statement is also the evidence in chief the rules of evidence would apply and the court may refuse to admit it as evidence if it does not comply with the requirements of the Evidence Act, such as if the statements contained in the witness statement are hearsay, the court may refuse to admit the statements as evidence, etc. The Rules are also silent as to whether the Court can permit a witness to use the defective witness statement, such as if a statement is not dated or where the place of attestation is not shown or if the court can order an amendment of a defective witness statement. Despite the lacuna in the High Court Commercial Rules, I believe that the Court has discretion and powers to order a party or a witness to amend his statement of case at any time before cross examination of a witness by removing, adding or substituting any piece of evidence he/she may wish to add amend or substitute, and if a witness fails to verify his statement or omits to state a place where it was taken or the date it was made, I believe that despite the lacuna in the rules and by .using the inherent powers of the court and for the purposes of conducting fair trail the statement of the witness should remain effective unless struck out; and the court may direct that it shall not be admissible as evidence. The court also has inherent powers and for purposes of conducting fair trail to order a person who has failed to verify a the statement in accordance with rule 48 (1) (a) and (2) and Rule 49 to verify the document or properly verify it, without changing its contents, and refile it in court before the witness can be called for cross examination. 10 Based on the above, I allow the statement of Sophia Akaka Mukoba to be amended so as it can be properly verified, and be filed in court before the next hearing date. It is so ordered. DATED at DAR ES SALAAM this 07th day of MARCH, 2016 MANSOOR JUDGE 07th MARCH 2016 11