THE NATIONAL INVESTMENT CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL CAUSE/APPLICATION NO. 288 OF 2014 (ORIGINAL MISC. CIVIL CASE NO. 4 OF 2012) THE NATIONAL INVESTMENTS COMPANY LIMITED.........................................APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE PUBLIC SERVICE PENSION FUND (PSPF)...................................................... 1s t RESPONDENT THE REGISTERED TRUSTEES OF THE PARASTATAL PENSION FUND (PPF).....................................................2n d RESPONDENT THE REGISTERED TRUSTEES OF THE LOCAL AUTHORITIES PENSION FUND (LAPF)......................................... 3r d RESPONDENT THE REGISTERED TRUSTEES OF THE GOVERNMENT EMPLOYEES PENSION FUND (GEPF).......................... 4t h RESPONDENT THE CAPITAL MARKETS AND SECURITIES AUTHORITY 5t h RESPONDENT RULING Mansoor, J: Date of Ruling- 15t h JUNE 2015 The National Investments Company Limited NICO” filed an application for setting aside the exparte order dated 29th February 2012 in Misc. Civil Case No. 4 of 2012, in the alternative, Nico prayed for extension of time to file an application for setting aside the exparte order dated 29 th /02/2012 in Misc. Civil Case No. 4 of 2012. The application was made under Order IX rule 13 (1) of the Civil Procedure Code, Cap 33 R:E 2002, “CPC” , Section 21 (2) of the Law of Limitation Act, Cap 89 R:E 2002, “the Law o f Limitation Act” and in the alternative the application was made under section 14 (1) of the Law of Limitation Act, Cap 89 R:E 2002 read together with Order IX rule 13(1) o f the Civil Procedure Code, Cap 33 R:E 2002, and also in the further alternative, section 14(1) of the Law of Limitation Act, Cap 89 R:E 2002. In response to the above application, the Respondents filed counter affidavit to oppose the application, and they also filed notice of preliminary objections. Mr Kibatala representing the 2 1st to the 4 th respondents stated that the application is defective as the chamber summons cited omnibus and alternative provisions of the law. The Counsel submitted that the Applicant had a duty to be particular on the provision o f the law they rely upon to move the court to grant a prayer. The citation by the Applicants in the chamber summons citing provisions of the law in alternative, is omnibus and it is the kind o f citation unknown to our jurisdiction, said Mr. Kibalala. Counsel Ngalo Colman for the Applicant argued that the use of the word omnibus is wrong, and that the Applicant did not cite omnibus provisions, he said the court can choose either to rely on Section 21 (2) o f the Law of Limitation Act, without any further need for extension of time or can grant an extension of time under Section 14 of the Law of Limitation Act, Cap 89 R: E 2002. Order IX Rule 13 (1) is a provision in the CPC for setting aside the exparte Decree, Section 21 (2) o f the Law o f Limitation Act is for exclusion o f the time spent during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, section 14 (1) of the Law of Limitation Act is for extension of time to file an appeal or an application out o f time. So I understood from the citations that this court is being moved to grant a prayer under section 21 (1) o f the Law of Limitation Act to exclude the time within which the Applicant was prosecuting other civil proceedings, and if that exclusion is granted, then the Court should also grant an order of setting aside the exparte decree entered against the Applicant on 29 th February 2012 in Misc. Civil Case No. 4 of 2012, and in the alternative, if this court does not think it is appropriate to exclude the time spent by the Applicant prosecuting other civil proceedings, then it should grant an extension o f time under section 14 (1) o f the Law of Limitation Act, to allow the applicant to file the application to set aside the exparte decree if satisfied that there are sufficient ground for doing so. A prayer under section 14 (1) of the Law of Limitation Act was made as an alternative prayer. As stated earlier, a preliminary objection was raised by Mr. Kibatala to the maintainability o f the Chamber Summons on the ground that it has cited provisions o f the law in the alternative, a procedure unknown to our practice. The point, undoubtedly, is a very narrow one, but it raises an important question o f practice which is not covered by authority. It is not disputed that the present Chamber Summons has cited Section 14 (1) of the Law o f Limitation Act as an alternative provision o f the law to grant an alternative prayer. I’m not aware if the Forms Applicable as a chamber summons under the CPC have been prescribed as a Form to be used 4 under Section 101 of the CPC. I’m aware however that O. 43 rule 2 of the CPC provides that every application to the Court should be made by a chamber summons supported by affidavit. Under the proviso of Rule 2 of Order 43 of the CPC, this Court is given a discretion to entertain an application made orally or “in such other mode as may be appropriate having regard to all the circumstances under which the application is made.” I’m also alive to several decisions of this court as well as the Court of Appeal deciding on competency of the chamber application on citation of the proper provisions of the law such as the case of Aero Helicopter (T) Limited vs. F.N. Jansen (1990) TLR 142, and the case of Abdulhamid Ramadhani Mjombo & 2 others vs. Ali Salem Ali & others, Civil Application No. 4 of 2004 (unreported), where it was held that it is very important for an applicant to be very specific in moving the court to exercise its jurisdiction on any particular situation. In those decisions the Courts, as well as the Court of Appeal have decided that a chamber summons which cites the wrong provision of the law or which does not cite any law enabling the court to grant an order is incompetent, and applications before the courts have been thrown out for such errors. But, I have never come across a decision, and the Counsels to this case have not been of much help on this, which has determined on the issue at hand, that if it is permissible under our jurisdiction to cite provisions of the law in the alternative. 5 The present Chamber Summons, is definitely inconsistent with the format we are all used to, as it has cited a provision o f the law in the alternative but in my view the provisions cited are all relevant and are not inconsistent with each other, they are not inconsistent with the provisions of the Code of Civil Procedure, or any prescribed format, and also not inconsistent with the decisions o f the Court or the Court o f Appeal regarding wrong or non-citation of the law in a chamber summons. In any case this court has been given an express power under the proviso to O 43 Rule 2, to allow an application to be made in any other mode as may be appropriate. In my view, citation of the law in the alternative is not fatal, as long as the prayers made thereunder are related and are not inconsistent with one another. In the present matter, and as submitted by Advocate Colman Ngalo for the applicant, the prayers for extension of time under Section 14 (1) o f the Law o f Limitation Act, and a prayer for exclusion of time spent in pursuing other proceedings under section 21 (2) of the same law are interrelated, and the ultimate goal o f the applicant is to be able to be given time so that it can apply for orders to set aside the exparte judgement/decree. Under this present application I find that it is appropriate to allow this mode o f application to be used to seek for exclusion o f time and in the alternative for extension of time. At the hearing of the application it is also not fatal to hear the applicant seeking the exclusion o f time under section 21 (2) of the Law of Limitation Act, and at the same time and in the alternative to hear the applicant for extension of time to file the application. The Applicant can simultaneously and in the same session adduce facts and evidence to satisfy the court that indeed the applicant spent time to pursue other proceedings relating to this same cause to enable the court to exclude the time the applicant has spent in pursuing those proceedings from computation of time, and the court can also find this as an excusable or sufficient ground for extending the time under section 14 (1) of the Law o f Limitation Act. That, o f course, could not possibly have been done if the High Court had no power under the proviso of O 43 rule 2 of the CPC. In the result, I have come to the conclusion that the citation of the provisions of the law in the alternative in a chamber application is not fatal, as long as the prayers contained thereof are related. In that view o f the matter, it must be held that the chamber summons is not defective. As far as the merits o f the Chamber Summons are concerned it is not disputed that the chamber summons is essentially a pleading, and like plaint, prayers in the pleadings can be made in the alternative, and the law permits the prayers to be made in the alternative. The Court of Appeal in the case of Mbeya- Rukwa Auto parts and Transport limited vs Jestina George Mwakyoma (2003) TLR p 251, referred to me by the learned 7 counsel for the Applicant is of relevance. Also the case of James Funke Gwagilo vs AG (2004) 161 at pg. 162, Court o f Appeal, held that “i f a party wishes to plead inconsistent facts the practice is to allege them in the alternative... ” thus as submitted by Counsel Colman Ngalo there is nothing alien with the form for asking for an alternative relief as decided also in the case of Calico Textile Industries Limited vs Zenon Investments Limited & 2 others (1999) TR 100, by Mackanja J. The second objection also fails, and it is herby overruled. Regarding the affidavit, I see nothing wrong with the verification clause of the Affidavit of Mr. Mosha. Mr. Mosha affidavit has been properly verified as he has stated that the facts deposed thereon are of his personal knowledge. Mr. Mosha is not required in law to explain or disclose the circumstances under which he became aware o f the decision o f the court. The law simply requires the deponent to state which matters are stated upon information and belief and matters which are stated to the deponent’s own knowledge. Order XIX o f the Code o f Civil Procedure, states that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted, provided that the grounds thereof are stated. The case of Serikali ya Mapinduzi ya Zanzibar vs Farid Mohamed Abdallah (1998) TLR 355 is of relevance on this matter. 8 Except for the admitted paragraphs i.e. the first sentence of paragraph 12 (d), which sentence is admitted to be an arguments, that sentence will be expunged from the affidavit, I find the rests of the paragraphs to be in order as they contain facts. Those paragraphs pointed out by Advocate Kibatala to have contained arguments and opinions , I find them in order as they do not contain any arguments or opinions and the affidavit did not offend Order XIX Rule 3 (1) of the Civil Procedure Code, Cap 33 R: E 2002. I also went through paragraph 7, 10, 11 and 12 b of the affidavit of the Applicant and did not see any arguments in those paragraphs. These paragraphs contains facts and I have seen no legal arguments, or prayers, the Applicant’s affidavit contains facts and these are facts and /or belief which are permissible under Order XIX Rule 3 (1) of the CPC, of which the Applicant is able to prove. The Affidavit did not contain legal arguments or conclusions. Black Law Dictionary, 7th Edition, 1999 defined legal conclusions to mean, “A statement that express a legal duty or result but omits the facts creating or supporting the duty or result”. The statement in paragraph 7, 10, 11 and 12(b) of the affidavit have been made and have included the facts creating it. The words did not stand alone. These are the facts creating the duty or result to the words; these words explains true facts of what has happened regarding the dispute. For this reasons, all the preliminary objections are overruled as they lacks merit and dismissed with costs. DATED at DAR ES SALAAM this 15™ day of JUNE, 2015 ANSOOR JUDGE 15t h JUNE 2015 10