19990218 TZHC Dar es Salaam 1

n~ THE HIGH COUrtT OF TAI\ZAl\JIA DAR ES SALA.41/i._DISTR.ICT REGISTRY CIVIL CASE NO. 201 0£ 1996 · MTIBWA SUGAR ESTATE LIVITE:0 FLAINTIFF VERSUS 1 ZEGE TRANSFORT SERVICE i... DEFENDANTS 2: NATIONAL INSUAR:ANCE CORFORATIOf, LTD.~··· RULING BUBESHI, J: '' The applicant in this n~atter, Mtibivva Sugar Estates Ltd, have filed an application for review under Orde:r XLII (l)· and also for a stay of the exe..-ution pending hearing of the review of the decision of this court made on 5/8/1995 the 2nd respondent/defendant had prayed for and·judgment ehtered ;3.gainst the plaintiff in terms of 08 Rule· 14 (1). The respondent has filed four grounds. in forJT, of preliminary objections on points of lavt, namely that the ap1-,lication for stay is bad in law in that it has been brought under the wrong provisions of the law; that the affidavit in support of the cham~er application isinaurably defective offending 0 XIX Rule 3 of; that the affidavit ~worn by one G Ki tange, is defective in that it offends che provisions of Section. I of the hotary Fublic and CommissioY1er for,..,Qaths Ordinance, Cap.12; that the same affidavit quoted above is defec,tive in that it offends Section 8 of Cap .12. To substantiate his submissions, Mr. Msemwa for the respondent submitted that the ap-1.)lication has been brought under Orde·r XXI Rule 24 instead of being brought under Order XXXIX Rule 5 (1), where the court has powers to order. ,Stay of execution on condition there is sufficient cause (s) for so doing On second ob.jection Mr. Msemwa ..... /2 .... : .~ ::- --,, ... 2 stated that the affidavit filed in ~pport thereto contains extranous matters by way of prayers. The case of UGAM)A vs cortHSSIONER OF f-RISOh - EXI-l\RI'E iVJ~TOVU (1966) E .A. 514, at page 520 was quoted in sufport of the pro:i;:osition. He stated that the affidavit filed by the applicant I contained extraneous rr,atters by way of prayers !.le nee it ough~ to be struck c,ff. frcE, ·tha record,; 'rhirdly, JVir. 1v,semwa stated that the applica·r.ts filed affidavit does not show where the oath was sworn and lacks the pro~er date. Fourthly, JVir. JVJsernwa added that the applicants ,,,__ affidavit V{as sworn by one G. Ki t.'.:lnge before E E \1i'aniunza in her capacity as commissioner for oaths and yet it is this same E.E .Wamunza who is the applicants counsel .fh the matter. ii.tr. JVlsemwa submi tt~d,,that by so d_oing, the provisions of Section 7 of Notary fublic and Cornrrissioner for Oaths Ordinance, Cap.12 were clearly V,.i:c~J..?~cJ"..J... He prayed that the affidavit being so clearly defective should not-be acted upon and the application be.:. ::ii3n:j_,a'iJed. I reply Mrs. E. E. Warnunza while conce:.:.iri.g_ ·that the application was brought under the wrong law, was-of the view that the defect could have been cured if the counsel for the respondent had not prayed for written .submissions-. I must confess I am at a loss of what Iv'1rs. Wmunza is up to in this regard.-· She was represented by lV1r. 1'igalo when Mr. Msemwa asked for leave to file his objections by way written ubmissions She cannot certainly blame 0 - Mr.Msemwa for ,.~hat transpired in court >~1:.: that date when she· vms represented. Further she concedes that the affidavit v.ras a'.:ttested t?Y herself and prays for leave to amend the application.- With respect to Mrs. Wamunza she has not put up convincing reasons to sKJ.-Y this court to her side~~ ,;fi th all the flaws that have been stated by Mr. Ivisemwa can this court· allow for an amendment of the affidavit? What I note .:r<tt:- that the whole affidavit must be struck off and re: written a fresh and not o;nly parts thereofe .... /3 J J, 3 The case of SABAYAl\JOS - FARVERS CO--Ol?ERATIVE SOCIETY LTD vs ANTOI\1Y MVHTA (1968) H.C.D. N0.354 is clearly distinguishable in my view, Of the points considered by the court in the SABAYAl\JOS case (supra) wa;3 one that the defendant's officer . was a man of limited education, with no legal experience • ln the appl.i.crition at hand the application has been filed by a qualified counsel~ Having considered the arguments put forward by both counsel I have come t-:i the conclusion that, the filed affidav~t was incuriably defective that to, order for its amendment would mean, in actual fact rewriting the who.Le. \_. In the premises I decline the invitation extended by Mrs~ Wamunza and order that the affidavit be struck off. And there being no affidavit' in place, the application for stay of ex~cution therefore ·fails. Preliminary objections are hereby upheld. Delivered in A. ·G •. BUDES~II absence of l·arti_es who JUIX}E were duly served to appear. 18/2/99 r