SWALA OIL GAS T VS OTTO ENERGY T PTY LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM Misc. COMMERCIAL APPLICATION NO. 131 OF 2018 SWALA OIL AND GAS TANZANIA PLC...................... APPLICANT VERSUS OTTO ENERGY TANZANIA PTY LTD............................ RESPONDENT 20/09&18/10/2018 RULING MWANDAMBO, J Before me is an application for leave to appear and defend the main suit i n Commercial Case No. 66 of 2018 filed under summary procedure. The application is strongly opposed by the Respondent who invites me to dismiss it for lack of merit. On 20" September, 2018, I heard oral arguments from the learned Advocates on top of the skeleton arguments each filed in pursuance of Rule 64 of the High Court (Commercial Division) Procedure Rules, GN No.250 of 2012 (the Rules) and reserved my ruling. In the course of composing the ruling, it came to my attention that the affidavit i n support of the application had omitted to specify a date on the jurat of attestation as required by Section 8 of the Notaries Public and Commissioners for Oaths Act, Cap 12 [R.E 2002] as amended by the Written Laws (Miscellaneous Amendments) Act (2) No 4 of 2016. It i s now settled law that where a jurat of attestation in an affidavit omits to specify a date and place on which the deponent took out the affidavit before a Commissioner For oaths renders the same defective with the result that the application becomes incompetent and liable to be struck out. There is a plethora of authorities on this aspect represented by DB Shapriya & Co. Limited vs. Bish International BV [2002] EA 47, Zuberi Mussa V. Shinyanga Town Council, CAT Civil Application No.100 of 2004 1 (unreported), Shabir Bhaijee & 2 Others vs. Sulemani Rajabu Mizano, CAT Civil Application No. 161 of 2006 (unreported) to mention but a few. The affidavit annexed to the Chamber Summons is no better. The jurat of attestation runs: "SWORN at Dar es salaam by the said.......................................... who is known to me personally identified to me by...................... the latter being known to me personally this..... day of May 2018" It will be seen that apart from failing to disclose the name of the deponent and whether he is known to the commissioner for oath personally or that he was introduced to him by a person known to him personally, it does not disclose the date on which the deponent took the oath before the oath before the commissioner for oaths. As seen from the cases cited above, failure to state the place and date in the jurat of attestation renders the affidavit incurably defective and the same can no longer support any application. Such an application becomes incompetent and must be struck out. Admittedly, this point did not feature during the hearing of the application and so the learned Advocates were not heard on it. That notwithstanding the Court is not precluded from dealing with it now on the authority of rule 63 of the High Court (Commercial Division) Procedure Rules, 2012 (the Rules). Under that Rules a judge is empowered to strike out an affidavit which in his opinion contravenes any provisions of the law currently in force or make any subsequent order including striking out the application where he deems fit. My reading of the rule does not prescribe the stage at which the rule can be invoked. It may be at the stage of making initial orders 2 or any time in the course of proceedings, provided the judge finds as it were that the affidavit, counter affidavit or reply thereto contravenes any law currently in force. As seen above, the affidavit annexed to the chamber summons contravenes section 8 of Cap 12 and so the same must be visited with consequences spelt out under rule 63 of the Rules, that is to say striking it out. Upon striking out the offensive affidavit nothing will be left of the application which must likewise follow suit. In the event, having found that the application is supported by a defective affidavit contravening section 8 of Cap 12, the same is held to be incompetent and is hereby struck out. Having regard to the circumstances leading to the striking out the application, I make no order as to costs. Order accordingly. 3