20040305 TZHC Dar es Salaam

"!· --~--•,./~ .. .:iL. ___ - - :S, . . IN THE HiGH_ COUij.T Of TANZANIA I: (COMM~RCIA~ DIVISION-) AT.D·AR ES fjA,LAAM) ·, 1: COMMERCIALCAsEiNo. 255 OF 2002 . . . I • 1.S.K.A. RWEGASIRA ·, ., . ' i ; i ·. ' . I . ' . 2.MARK &-GENERALAGENC]] . · · . . LTD ' ·. ' ' ·. .. ........'; .... APPLICANTS/JUDGEMENT .. · 3.B.K.ALLIED OPERATIONS : DEIBTORS -. ·

VERSUS TWlGA CHEMICAL INDUSTRIES LTD ....................................: ·'RESPONDENt /DECREE j HOLDIEIR. 1 I Couns~I: Malimi for Respondent · . R U L IiN G BWANA, J. l! i' . '·11 . On 6 October 2003 I dismissed tihe now Applicants' request to . - I - have an exparte judgment entered in favour of the now. respondent on 23 January 2003. I did state therein trlat the application was hopelessly time barred as it was filed qn 21 August 2003, many . I months after the statutory period had ~lapsed. After the 6 October . I ruling, the Applicar-,L~:> filed a Memorandum of Review dated 17 October . . . I . . 2003 requesting this court to review :d earlier decision.· Salvand K. . i Rwegasira, the first Applicant, filed an ~ffidavit in support of the '· memorandum. • - Ir.I I• However, on 15 December, one Raji\1 Saluja, a principal officer . . . 11 • I • of the decree holder company, filed acf unter affidavit. Now it is claimed by the Applicants that the said_/counter affidavit is defective I' as: !i .· I "The jurat in the counter affidavitwn which . . . I . l I .· I;.I I ' I ..· t ' . the respondent filed in this court on 15 Decerr1ber 2003, did not indicate the place. where the oath was taken ... that was purely contrary to the . statutory requirement of the pr~visi~ns of sectio~ . 8 of ..... Cap 12 .... " F Both parties filed submissions in supp6rt of their respe~tive views; . I .

. Counsel for the decree holder claiming) that there is no defect in the jurat and if at all any, then it is not fatFI as claimed by the applicants. Section 8 of the Notaries Public· ~nd Commissioner for Oaths Ordinance, Cap 12, states: . "Every Notary Public and Com mil sioner of oath before whom any oath or affidavit is . . . . I . taken or. made under this Ordinance I . shall state truly in the turat of attestation at ) what place and on what date the 1oath or affidavit. is taken or made" (einpAasis mine). Hence if a document purported to be . J .I affidavit lacks those important parts-nan--~ly- the place where it was taken or made and . the date thereof, such a document is··i+urably defective. That is · settled law as has been repe·atedly stated. In the case of D. B. . . I . 1 Shapriya & co. Ltd VS Bush Internationa I b.V. (Civil Application No. 53 of 2002) the Court of Appeal of Tanzani~ (per Raniadh_ani J.A.) did . state: " The section categorically provides that the place at which an oath is taken hak to be shown in the jurat. The requirem_e½t is· 2 I I . mandatory. Notary Public and cdmmissioner . . for Oath shall state truly in the itJJrat of . ' . . , I attestation at what place and on :what date the oath or affidavit is· taken or iade.: The use of the word truly in my opinion underscores ' 1 the need to follow the letter of th e provisions ... I (emphasis mine).

.' This court has held likewise in several 4ases recently (re·. CC i 287 /2002; cc 297 /2002; cc 196/2002; cc 158/2002; cc 100/2002; . . . l CC 144/2002 among others). ThereforJ the need to have a proper ' jurat cannot be re emphasized. It has.tp be in a format and manner as provided for by the law and practice. . 1I I have carefully examined the co nter-affidavit of Rajiv Saluja . and came to the considered conclusion jthat it is incurably defective. The place where it was made is not sholwn. It only states: . I . it "AFFIRMED by the said Rajiv Saluja who is identified to me by Pius KisarikJ the l . later being known to me personalty this 15th day of December 2003". . · f. I . . It is then stamped with stamp of Deusdedith Mayomba, an Advocate at Dar es Salaam. It has been held, in the tases I cited above, . that a mere. '. . stamp is not sufficient. Accordingly I ag1ee with the Applicants that the i said counter affidavit of Rajiv is incura~liy defective and it should be expunged. I order accordingly. -, .) i The foregoing leaves thi·s court 0Jith- the evi.dence .as contained in . ) . the affidavit of Salvand Rwegasira. It !-s settled law that an affidavit - • • , • • ~• I • • • as evidence -- has to meet all the req4irements if it has to be used in ,-'. I, favour of the party making it: I h-ave· carefully considered that affidavit. It contains the same_ reasons, as _advanced

earlier leading to. the 6 October Ruling. In that Rul'ing .I ~id statE!: '·; ' "Even if I were to entertain the· f/rst . ' 1 applican_t's affidavit still nothing is said of . - . :I . . the other applicants why was appearance not entered in their behalf when ther were served I. . with the summons?" ·_ i l The present application does not answ¢r that fundamental question satisfactorily. Therefore this application to this court to review its . • ' i . ' . Ruling dated 6 October 2003, fails. It ;is accordingly dismissed with· costs. / ,· ... ·?~;'j , :.·:-< IBwana ; ! I 5/3/20' 4 ,I l 768 words· I