IN THE HIGH COURT OFT AN ZAN IA (COMMERCIAL DIVTSfON) AT DAR ES SALAAM MISC COMMERCIAL CAUSE NO 70 OF 2017 (ARISING FROM COMMERCIAL CASE NO. 127 OF 2016) BETWEEN MAN TRAC T ANZANTA LIMITED --------------------------------------------A PP LI CANT VERSUS JUNIOR CONSTRUCTION COMPANY LIMITED ------------------1 ST RESPONDENT NCHAMBI'S TRANSPORTERS LIMITED ---------------------------2ND RESPONDENT RULING SONGORO,J Before me there is an application for extension of time to file a Petition to stay proceedings pending reference go to Arbitration filed by Mantrac Tanzania Limited the applicant. The applicant application is made under Section 14(1) of the Law of Limitation Act Cap 89 [R.E 2002] and is supported by an affidavit sworn by Mr William langena, Learned Advocate of the applicant. The Respondents in the application are Junior Construction Company Limited and Nchambis Transporters Limited who filed the counter affidavit affirmed by Suleiman Masoud Suleiman and oppose the application. Thus in the light of the application and responses from the parties the court made an order that, parties pursue the application by a way of written submissions. and pursuant to the court order Mr. William Mangena presented written submissions of the applicant while Mr. Frank Mwalongo Learned Advocate presented written submission of the Respondents. On his part, Mr. William Mangena Learned Advocate of the applicant submitted that.. the application for extension of time to file a petition for stay of proceedings pending reference to arbitration is granted at the discretion of the court pursuant to Section 14 of the Law of application./"- Cap 89 [ R.E 2002]. He further submitted that. once it is established by an affidavit that. applicant was prevented by any sufficient cause to file the petition within requisite time then that. may be one Page 1 of 8
of the ground of granting an application for extension of time. Also. he clarified that, if there was a delay in filing the application for extension of time, the applicant must account for the delay. Submitting on the application, the counsel stated that. the time limit for the application to stay proceedings in the case at hand is not provided for but in principle a petition to stay proceedings for stay of proceedings is that. the petition must be filed within 60 days from the date of service of the plaint. The counsel then stated that. the applicant was served with a plaint on 5/10/2016 and 60 days period elapsed on 4/12/2016 and the present application was :filed on 14/3/2017 after the elapse of about 100 days. On the cause of delay, Mr. William Mangera explained that, previously on 24 111 October 2016 the applicant timely filed Commercial Case No 127 of 2016 a Petition to go to arbitration but was truck out on technical ground on the 8 111 March 2017. However even after the struck out of the petition, the applicant is still anxious to pursue its rights in terms of the agreement to go to arbitration save for the fact that, is now time barred. So the reasons for delay in filing a Petition to go to arbitration is due to the fact that, their previously filed a Petition which was struck out and by the moment it was struck out the requisite time of filing another Petition has already expired. The applicant's counsel then explained that, failure to file the Petition on the statutory requisite time was due to negligence and even if the struck out petition has a mistake that, was not intentional. The counsel then explained in his paragraph 7 of his affidavit that, the interest of justice demands the application be granted. To support his grounds of extension of time, the applicant counsel drew the attention of the court to a decision in the case of Salvand K.A Rwegasira Versus China Henan International Group Co Ltd. Civil Reference No )2 of 2015, Fortunatas William Masha Versus William Shija and Another (TLR) 154. Yara Tanzania Limited Versus DB Shapriya Civil Application No 498 of'.)016 (Unreported) and Zahara kitindi and Dominic 13 Francis Versus Juma Swalehe. Civil Application No 4 /05 of?017 (Unreported). Then relying on a decision of Fortunata Masha (Supra) which decided that, there is a distinction between cases involving real and actual delays and those such as the present one which clearly only involved technical delays in the sense that. the original appeal was lodged on time but had been found to be incompetent for one or another reasons and a fr sh appeal had to be instituted: Page 2 of 8
In the circumstances, the negligence if any really refers to the filing of incompetent appeal, not delay in filing it. The filing of an incompetent appeal having been duly penalized by striking out, the same cannot be used yet again to determine the timorousness of applying for filing the fresh appeal. So the applicant counsel by relying the decision of cited case he appeal to the court not to apply the striking of an appeal as a measures of finding that, there was a delay in in filing the petition. The counsel applied to the court to grant an extension of time to applicant to file a Petition to go to arbitration. On his part, Mr. Frank Mwalongo. Learned Advocate of the Respondent he vehemently opposed the application and raised three preliminary objection on points of law First, he argued and submitted that, the verification is defective because the deponent has not disclosed in the verification clause whether facts depone in the affidavit are true according to his own knowledge or are derived from information received from other sources which was not even disclosed in the affidavit. Due to the fact that, Mr. William Mangena was silent in his verification clause as to whether the facts depone in his affidavit are within his own knowledge or information received from another sources which was never disclosed, thus the verification clause is defective and ultimately the affidavit is also defective. Mr Mwalongo states that, the legal consequences of filing an affidavit which its verification is defective, is that, it has to be rejected. So on the objection raised the Respondent's counsel prayed to the court to the application Moving to the second preliminary objection on point of law, the Respondent's counsel explained that, under Rule 3(1) of Order XIX of the Civil Procedure Code Cap 33 [R.E. 200?] affidavit is supposed to confine to such facts as the deponent is able of his own knowledge to prove except on interlocutory application on which statements of his belief may be admitted. The Respondent counsel then faulted the applicant's affidavit that, it does not state whether the depone facts are based on the deponent' s own knowledge or be] iefs, therefore the affidavit contravenes the provisions of Rule 3 (1) of Order XIX of the Civil Procedure Code Cap 33 [R.E?002]. Mr. Mwalongo insisted that. turn the affidavit to be defective. Page 3 of 8
//1 While on this point the Respondent's counsel referred the court to a decision in the case of Salima Vuai Foum Versus Reaistrar of Coo erative Societies and three others 1995 TLR 75 (CA) where it was decided that, an affidavit which has not disclosed the source of information, must not be to acted upon by the court. So he prayed to the court not to act on the affidavit in support of the application because the affidavit did not disclose sources of the facts depone. Turning to the third preliminary objection on point of law the Respondent's Counsel argued that, the schedule to the Oaths and Statutor declarations Act Ca 34 R.E 2002 requires the Commissioner for Oaths before whom oath is taken to state whether he knows the deponent personally, or the deponent has been introduced to him by another person who knows him. Also the name of the person who introduces the deponent must be stated in thejurat of attestation clause. Mr. Mwalongo then submitted that, in the Jurat of attestation in the affidavit of the Mr. William Mangera, the Commissioner for Oaths has stated that, William Mangera the deponent is known to him and at the same time stated that, William Mangera has been introduced him by someone who was not mentioned or stated in the j urat of attestation. So Mr. Frank Mwalongo argued that, since the Commissioner for oath in the jurat of attestation has stated that, he knows the deponent and at the same time has stated that, the deponent was introduced to him by a person who was not disclosed the Jurat of attestation. likewise the affidavit in support of the application is also defective. On the basis of the above mentioned preliminary objection on points of law, Mr. Mwalongo prayed to the court to uphold the preliminary objection on points of Jaw and strike out the application. Turning to the merit of application Mr. Mwalongo submitted the main issue for determination in the application is whether the applicant's delay caused by failure to comply with Rule 19 of the High Court (Commercial Division) Procedural Rules ON 2500F 2012 constitutes a sufficient cause excusable to grant an extension of time to file petition for stay of proceedings. The counsel then went on to submit that, under Section 14( 1) of the Law of Limitation Act Cap 89 [R.E 2002] it requires the applicant to adduce sufficient cause for delay. Page 4 of 8
t} While on this point the Respondent's counsel then argued that, 111 the present applicant's application there is no good reasons nor exceptional circumstances, to warrant the extension of time because Advocates negligence was disqualified to constitute a good cause for the delay and to warrant an extension of time. Finally, Mr Mwalongo prayed that the application be dismissed for lack of merit. In response to the preliminary objection, the applicant counsel pointed out that, there is defects in the verification clause and he added that, the requirement of Rule 3 of Order XIX of the Civil Procedure Code Cap 33 is that, pleadings/affidavit there must have verification clause and jurat of attestation. He then explained that, the law does not provide any format of verification clause but for particular statements which should be in the verification clause. On the cited case of Salim a Vuai Foum Versus Registrar of Cooperative Societies and 3 others (1995) TLR 75 the applicant counsel claim that. it has been misapplied because the principle is that, where the affidavit is made on information that, is where it should not be acted upon by any court unless the sources of Information are specified. So the rule applies where an affidavit its sources are based on information. The counsel then submitted that, the affidavit in support of the application its source is not solely based on the information. Responding on the second objection that, the Jurat of attestation is defective, and is not compliance with the requirements provided under the schedule to the Oaths and Statutory Declarations Act Cap 34 [R.E 2002] that, the Commissioner failure to indicate whether or not he knew the deponent or deponent was introduced to him, Mr William submitted that, the affidavit was properly attested by the Notary and complied with Rule 3 of Order XIX of the Civil Procedure Code Cap 33 and Section 8 of the Notary Public and Commissioner for Oaths. The counsel then insisted the Jaw requires affidavit be attested and that, has been done. Replying to the Respondent submission on the application, Mr. Willaim maintained his prayer that, the applicant has assigned sufficient cause for the delay in filing the application is just because the previously file a Petition to stay proceedings within statutory required time but it was inadvertently strike out on technical reasons. He the indicated that, the law allows the court to grant an extension of time The Court has subjected the arguments raised by both parties with the weight it deserved and close scrutiny and find it is a rule of practice that. a preliminary objection on points of law must be determined first. So I decided to consider three preliminary objection on points of law Page 5 of 8
/~ which were raised by Respondent's Counsel, after their determination if need I will proceed to deal with the merit of the application. The court has considered the Respondent 1 51 and 2 11 c1 Preliminary Objection on point of law, and find the objection raised are based on the provisions of Rule 3 ( l) of Order XIX of the Civil Procedure Code Cap 33 [R.E 2002] which 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 Also there is preliminary objection raised is based Rule 15(2) of Order VI of the Civil Procedure Code Cap 33 [R.E 2002] which states;- The person verifying shall specify, hy reference to the numbered paragraphs of the pleading. what he verifies of his own knowledge and what he verified upon information received and believed to be true. So read together the Rule 3 (1) of Order XIX of the Civil Procedure Code Cap 33 [R.E 200?] they clearly provide what affidavit has to be confined. First is to such fact the deponent is able of his own knowledge to prove. The second prerequisite is on the affidavit which are on interlocutory application that, is where statements of deponent belief may be admitted Next the court perused also Rule 15(?) of Order VI of the Civil Procedure Code Cap 33 [R.E 2002] which imposes duty to the person verifying pleadings which requires a person verifying to make reference to the numbered paragraphs of the pleadings on what he verifies of his own knowledge and what he verified upon information received and believed to be true. It seem to me the requirements set in Rule] ( l) of Order XIX of the Civil Procedure Code Cap 33 and those stated in Rule J 5(2) of Order VI of the Civil Procedure Code Cap 33 are mandatory and must be complied with the deponent who verify the affidavit or a party verifying pleadings. Page 6 of 8
With that, legal position in mind I critically examined the verification clause of affidavit depone by Willaim Mangena Learned Advocate of the applicant, and find the verification clause is framed in the following words;- "I William Mang 'ena do hereby verify all what is stated above in paragraphs l, 2. 3,4,5,6 and 7 above" So guided by what was verified by Mr. William Mangera he stated to have verified paragraphs' 1, 2, 3, 4, 5, 6, and 7 above. He did not state in his verification clause if the facts her verified are of his own knowledge. Likewise he did not state in his verification clause if the facts depone are verified upon information received and believed to be true. It appears to the court that, Mr. William Mangena was non-committal on facts depone if were from his own knowledge or he verified upon information received and believed to be true. Quite frankly I find the omission by Mr William Mangera to state in his verification clause if the facts depone in the affidavit are within his own knowledge or are from information received which he believe to be true is an error which appears in the deponent verification clause. It is not the duty of the court to make a guesswork or an assumption on the deponent affidavit on which paragraphs are verified from the deponent own knowledge, and which are verified from information received from other sources It is important for the parties and deponent to understand that, Courts of law in several decision including decision in the case of Ki2.anga and Associates Gold Mining Company Limited Versus Universal Gold NL (?002] TLR p 1?9 have repeatedly and consistently stated that the function of "verification clause" is aimed to counter possible abuse of court process and fixing responsibility to authorized officials. It follows therefore if therefor if the deponent makes none committal statements on the verification clause that, defeat the whole purposes of the verification clause which has the aim of countering possible abuse. Page 7 of 8
It appears from the provision of of Rule 3 (I) of Order XIX of the Civil Procedure Code Cap 33 [R.E 2002] that, its compliance is mandatory. Likewise it appears from Rule l 5(2) of Order VI of the Civil Procedure Code Cap 33 [R.E 2002] that, its compliance is mandatory. Bearing in mind that, Mr. William Mangena in his verification clause was non-committal if the facts depone were within his own knowledge or are from information received which he believe to be true I find his verification clause and affidavit in support of the application are incurable defective for not comply with the provisions of Rule 3 (1) of Order XIX of the Civil Procedure Code Cap 33 R,E 2001 which governs the legal requirement of the affidavit. Further the court find, since applicant's counsel was not diligent enough. to apply for correction of defects which appears in the verification clause, error, l find such defective affidavit may not support the application for extension of time to tile a petition. In view of the above the only option left to the court is to strike out the application on the grounds that. the verification clause in support of the application is defective for contravening the mandatory provisions of Rule 3 (I) of Order XIX of the Civil Procedure Code Cap 33 R.E 7002 which governs statutory requirement of the affidavit. For reasons stated above. l uphold the objection raised and there is no plausible reasons to deal with remaining issues. Therefore the applicant application is strike out with costs in favour of the Respondents Signed and Dated at Dar es Salaam this 9 111 day of August 2018 H.T,SO~ JUDGE Page 8 of 8