SERENGETI BREWERIES LTD VS FES ENTERPRISES CO

IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL REFERENCE NO. 25 OF 2023 (Arising from Taxation Cause No. 127 of 2022) SERENGETI BREWERIES LTD...................................................... APPLICANT VERSUS FES ENTERPRISES COMPANY LTD.......................................... RESPONDENT RULING Date oflast order: 11/05/2023 Date ofruling: 30/06/2023 AGATHO, J.? The respondent FES ENTERPRISES COMPANY LTD having been served upon with copy of application accompanied with the affidavit sworn by Nuhu Mkumbukwa learned counsel, filed counter affidavit to protest the application. The counter affidavit was accompanied with notice of preliminary objection (PO) on point of law that the application for reference is incompetent for being supported with a defective affidavit. This ruling is in respect of that PO. The parties were represented by learned advocates. The applicant was represented by Mr. Nuhu Mkumbukwa and the respondent was under representation of learned counsel Samson Mbamba. The hearing of the i PO was conducted via written submissions. It is pleasing to note that the parties filed their respective submissions timely. Submitting in support of the PO Mr Mbamba was of the view that the affidavit of Mr Mkumbukwa is defective for offending the law governing affidavits. He cited the case law on point as Arbogast C Warioba v National Insurance Corporation and Another; Elias Tibendelana v Inspector General of Police and Another; both holding that the affidavit is a sworn statement it should not contain extraneous matters by way of objection, prayer, legal arguments or conclusion. That position was earlier on held in Uganda v Commissioner of Prisons ex part Matovu; the CAT held the same in Phantom Modern Transport (1985) Limited v D.T. Dobbie (Tanzania) Limited; Stanbic Bank Tanzania Limited v Kagera Sugar Company Limited. According to Mr Mbamba the offending paragraphs of the affidavits are 5-10. And these paragraphs contain the substance of the claim which is the basis of the application. On the applicant's side Mr Mkumbukwa although he was not impressed with the objection, he admitted that the paragraphs 6, 7 and 8 contain legal arguments. He defended paragraphs 5, 9 and 10 as not being offensive, and if the court finds them to be then the applicant prayed for them to be expunged. He went on submitting if 2 these paragraphs are expunged the remaining paragraphs that is 3,4 and 11 are still containing enough material for this court to make determination. The court took liberty of examining the offending paragraphs and those that were unaffected by the PO. It is an informed observation of this court that the paragraphs alleged to offend the rules on affidavits they are indeed offensive or defective. They contain legal arguments. And the remaining paragraphs, that is 3, 4 and 11 they do not really contain any cause of action worth to be determined by this court. What is found in the non-defective paragraphs is simply narration of what transpired in the main case and the taxation cause. They do not contain substance of claim to be determined by the court. Therefore, the case of Msasani Peninsula Hotels Limited & Six Others v Barclays Bank Tanzania Limited and Others, Civil Application No. 192 of 2006 CAT cited by the applicant is not applicable in the case at hand. That is because in Msasani Peninsula Hotels7 case the CAT referring to Phantom Modern Transport (1985) Limited's case held that when expunging offensive paragraphs is held to be inconsequential those offensive paragraphs can be expunged or overlooked, leaving substantive parts of it intact and the court can proceed to acton it. That is unlike the situation 3 in the present case where the offensive paragraphs contained the substance. The court is of a settled view that the affidavit in support of the application is too defective to be spared. Even after expunging the defective paragraphs there will be no affidavit in the sense of the word. Since there is no affidavit legally speaking, the application is without any affidavit in support and hence it cannot be allowed to stand before this court. Due to that incompetence observed, the court proceed to strike it out with costs. Order accordingly. DATED at DAR ES SALAAM this 30th Day of June 2023. Date: 30/06/2023 Coram: Hon. U.J. Agatho J. For Applicant: Erick Denga, Advocate For Respondents: Erick Denga, Advocate, holding brief of Samson Mbamba, Advocate C/Clerk: Beatrice 4 Court: Ruling delivered today, this 30th June 2023 in the presence of Erick Denga, counsel for the applicant also holding brief of Samson Mbamba, counsel for the respondent. JUDGE 30/06/2023 5