20150325 TZCA Dar es Salaam

r<> '5:,---0 (:,~L. / . ~ C / / o rJ ~ /Jr;YJG,v..!J m Gv o· --- ·-------~~--....:::.:::··=-=-=-=·~ IN THE ·couRT-OF-A-PPEAL-OF-T-AN~ANIA I' .. - -~AR ES SALAAM CIVIL APPLICATION NO.110 OF-···-- 2014·••---•-- ·-· (CORAM: KIMARO, J.A., LUANDA,J.A. And JUMA,J.A.} - TANZANIA UNIFORMS AND CLOTHING -COR-Pt)RAT-iON LIMITED ............................ ~~~.:-~ ......................... APPLICANT VERSUS ----1--NIRMALSINGH-t/.a __________,__ _ _ _ _ _ _ _ --- - .... - - BHOGAL METAL ENGINEERING ................................. RESPONDENTS ·- ···•--------,----- 2. SITEL SINGH -----------------·------ (Application for amendment of the notice of motion in Civil Application No.115 of 2009} (Longway, J.) dated the 23 rd day of March, 2007 In Land Case No. 41 of 2006 RULING OF THE COURT 17th & 9 th .March, 2015 KIMARO, J.A.: Tanzania Uniforms and .Clothing Corporation Ltd filed a notice of motion in this Court on 30th September, 2009. It requested the Court to call for the records.of the High Court of Tanzania, Land Division Land Court Case No.41 of 2009 and revise the same. The respondents in the application are 1 . ·---------- . -- - ---- ---·- - - - --- ---------- - - - - - ·-. - - · - - - - -------------- ----------------- . . -·--is-supported-by-the-affidavit ofManoJ Kumar-Rasikbhai-:-1he-application was filed-under Rule 4(3) of the then Court of Appeal Rules 1979. While the-application was still pending, on 26th June· 26i4, Tanzania Uniforms and Clothing Corporation Limited filed this application against the same respondents. The notice of motion is filed under Rule 50(1) of the Court of Appeal Rules ~md it seeks for an order to amend the notice_g_f_cr:tQti_gn______ grant the orders are: (a) The affidavit in support of the notice of motion is defective as the jurat of attestation does not bear the handwritten name of the attesting officer. (b) · The affidavit in support of the notice of motion is not in proper - .. chronological order of events to establish the facts in issue. (c) Better meeting the interest of justice. The application is supported by an affidavit sworn by Benjamin Mwakagamba. He avers that he was engaged to represent the applicants . . after the notice of motion in Civil Application No. 115 of 2009 had been filed. . -. Upon perusing the records he noted the defects mentioned in the grounds . . ------~--~--·-: . - - - ·----~---·· .•.. , ·- filed in support q_f the.. application, hence this application. An affidavit filed - .. -·- -----"· ...-. . . .. 2 --------·----·--·----=------===---- ------ ----·---··--·-·- - - - ~ - , _ _ ) -----'----~------------·----=t in reply-by-:lulius-~alolo=-Bundala opposes the'.notice-of-motion-on-the-ground that a. defectiv.e notice of motion cannot be amended.---- At the hearing of the a·pplication both parties were represented by an advocate. Mr. Benjamin Mwakagamba, learned advocate represented the applicant while Mr. Julius Kalolo-Bundala represented the respondents. -----1In-t-lis-st1bmissic,ns-in-support-of-the-appHcation,the-learned-advocate -- - -- ---- · · - - - - - - for the applicant reiterated the grounds and the affidavit filed in support of the application. According to the learned advocate for the applicant some facts necessary to indicate why the applicant is seeking for an order for revision are not disclosed. Even some cases showing that the applicant is entitled to the order of revision have not been supplied. In the affidavit in reply it is deposed at paragraph 3 that the notice of motion makes reference to Rules 65(1) and 4(1) and 2(b) of the Court of Appeal Rules, GN.368 of 2011 which are not applicable in amendment of documents. His response to these assertions is that the application is not filed under those provisions of the Rules but under Rule 50(1). He cited the cases of Samwel Kimaro V Hidaya Didas Civil Appeal No.20 of 2012, Felix Francis Mkosamali Vs Jamal A. Tamim Civil Application No. 4 of 2012 and M/S Bulk Distributors Limited V Happiness William Mollel Civil Application No. 3 . -~-- ----- -· ~. 4 of 2008 (All--decisions-of-th-e-eourt-of Appeal of Tanzania~-tanrepnrteu). The learned advocate-said in all the cases mentioned, the Court allowed amendments in documents previqusly filed in ~ourt. He opined that if the ' amelidmerit·is allowed it Will nof occasionanV . . . . .. iiiJu~tice . - on the part of the --- - respondent. He requested the Court to .allow him to amend the documents as requested. -------------------·------------ - - - - - - - - - - - - - · . ------ that the application should not be. allowed beca_use - tb~. 9ppl1~9 nt. ---- has failed to. comply with the requirement requisite for being granted .the_order the applicant is praying for. He conceded that the information contained in paragraph 3 of his affidavit was wrong and _he_abando.oed-it. He adopted the rest of the information _in the affidavit. He agreed with the principle laid out in the cases referred to by the learned advocate for the applicant. However, the learned advocate said the principle would not apply in this case. Reading through Rule 50(1), the learned advocate said a condition which the applicant had to fulfill so that the Court could consider whether or not the applicant was entitled to the orders prayed for was to submit in writing the amendments envisaged to be made to the application. He ----ir:efe.r:r:ed-tG-t!ie-c-ases-Gf-Un-iver-sity-af-Da-r-E-s-Salaam-V-M-wenge-Gas-&------'-- Luboil Ltd Civil Application No. 76 of 1999 ( unreported) and Salim a Vuai 4 - . -- ----- . - - ---~Foum-V-Regisfr-ar-of-Co-operatives Societies-&-3-oth~ir-s-=[-1-9-95] T. L. R 75. The Court held in the two cases that a defective affidavit cannot be amended. The learne.cl aavocate said since the applicant ·fail.ecrto_ comply c----· with the requirement -pre-reqttisite- for-being granted the application,·· the -- -· -· · Court should- not grant tile order which the applicant-is seeking for. He requested the Court to dismiss the application. - ----I-r-1-Gur-GGnsidered opinion the issue-raiseGl-in-tl:le-a-ppl-iGation is not one to detain us. ·In the case of Samwel Kimaro V Hidaya Didas (supra) the Court .observed that: " .. .inserting the name of the attesting officer in the jurat may be desirable/ and probably a good thing to do/ since there is an added advantage of further authenticating the affidavit and thereby rendering the attej_ting officer more identifiable but it is not a requirement of the law or practice. Assuming it is a requirement which I believe is not where an application is supported by an affidavit without a name of the attesting officer in the jurat the said application should not be struck out An applicant in the circumstances should always be given the opportunity to amend the affidavit. ✓, This view is contrary to the views expressed in the earlier decisions of the Court, including the cases of M/S Bulk /Distributors Limited and Felix Francis Mkosamali (supra) also cited by the learned advocate for 5 .... -- - - - - - - ---the-applicant. But in this-case-the-learnecl-aclveeate for the applicaflt-said---- • r the amendments intended to he __ made to the application are not confined to_ the-)urat" of the attestation but also to the :fioay-of the contents of the affidavit:· - The· affidavit needs to be put in good chronological order and to add other matters not included therein earlier. The application is filed under Rule 50(1) of the Court of Appeal Rules, 2009. The contents of the Rule -------------~---------------- reads as follows: - - - - - - - - - - - - - ---------------+---- " Whenever formal application is made to the Court for leave to amend any document, the amendment (or _whi~h_ ('!ave is sought shall be set out in writing and, if practicable, lodged with the Registrar and served on the respondent before hearing of the application or, if that is not practicable, handed to the Court and to the respondent at the time of the hearing. ,✓ The language which used in rule 50(1) of the Court of Appeal Rules 2009 is clear. The word used in the Rule is shall. As correctly submitted by the learned advocate for the respondents, in an application for amendment of a document -already filed in Court, it is a mandatory requirement for the applicant to annex to the application the intended amendments in writing and serve the same on the Registrar and the respondent. The essence of1nat is to give tne Court a clue on the nature of 6 - -- ------ - --------~- -- ·- . ----- - - - - - - - - - - - - - - - - - - - - - - -- ---- - - ~ - -- -- .--the--a-mefldments intended to be-mae:Je-so-tMat-it-0aA-Ele0ide whether the... - -- - - --~ "· . ------ ___ application has merit or not. Where theJ..e_ts an omission by the applicant to disclose the intended amendment, definitely the Court. will not be in a position to·decide-th-eapplicatiun on merit. Because of the failure by the applicant to annex to the application the intended amendment we have no option but to reject the application and dismiss-it. Since- none -of the- learned-adveeates--s-aid anything about cos-ts;··------- we make no order for costs. DATED at DAR ES SALAAM this 2srn day of March, 2015. N. P. KIMARO JUSTICE OF APPEAL B.-M. LUANDA JUSTICE Of"APPEAL I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. 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