East African Development Bank vs Panache Limited & Others (Civil Application No. 196/01 of 2024) [2025] TZCA 1300 (17 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. J.A.. MGONYA. J.A. And FELESHI J.A.^ CIVIL APPLICATION NO. 196/01 OF 2024 EAST AFRICAN DEVELOPMENT B A N K .................................... . APPLICANT VERSUS PANACHE LIMITED..................................................... . .......... 1 st RESPONDENT PHONEX OF TANZANIA ASSURANCE COMPANY LIM ITED ............................................................ . 2 nd RESPONDENT TANZANIA ASSURANCE COMPANY LIM ITED ....................... 3 rd RESPONDENT (Application by the applicant to be joined as an intervener in Civil Appeal No. I l l of 2020 arising from the judgment of the high Court of Tanzania, Commercial Division at Dar es Salaam) ( M a k a n L il dated the 16th day of October 2016 in Commercial Case No. 67 of 2009 RULING OF THE COURT 10th November & 17th December, 2025 MWANDAMBO, 3.A.: The applicant has moved the Court under rule 4 (2) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") to be joined as an intervenor in Civil Appeal No. I l l of 2020 pending before the Court. The appeal was instituted by the second and third respondents against the first respondent herein. 1 All respondents resist the application. In particular, the first respondent who is represented by Mr. Simon Barlow Lyimo, learned advocate of Hallmark Legal, challenges the competence of the application on four grounds in a notice of preliminary objections lodged in Court ahead of the date of hearing. Mr. Gabriel Simon Mnyele, learned advocate represents the applicant whereas, Mr. Odhiambo Kobas and Ms. Hamida Sheikh, all learned advocates act for the second and third respondents respectively. The grounds upon which Mr. Lyimo seeks to assail the competence of the application are as follows: 1. The affidavit is defective as it has been signed by a stranger or a person who has not deponed the facts or the verification is not signed by the deponent o f the facts. 2. The ju ra t o f attestation in the affidavit is defective for failure to indicate the name o f the deponent 3. The application is sub-judice to C ivil Appeal No. 254 o f 2024 pending before the Court. 4. The application is unm aintainable fo r being preferred under wrong or inapplicable provisions o f law. Addressing the Court in the first ground, Mr. Lyimo pointed out that, whereas the deponent to the affidavit has identified himself as Donald Sumary, the verification at page 3 of the affidavit shows that it is 2 Donald Permena Sumary verifying the facts therein. According to Mr. Lyimo, Donaid Sumary and Donald Permena Sumary are two distinct personalities rendering the affidavit defective. Counsel referred the Court to its decision in Lisa E. Peter v. Al-Hushoom Investment, Civil Application No. 147 of 2016 (unreported) to argue that, the deponent's signature below the verification is distinct from the signature in the jurat of attestation as both require signatures. He thus argued that since the deponent to the affidavit is not the same as the person who verified the facts therein, the affidavit suffers from an incurable defect rendering the application incompetent and liable to be struck out. Apparently, both Mr. Koba and Ms. Sheikh had similar views. Replying, Mr. Mnyele was candid on the omission in the middle name of the deponent in the introductory part of the affidavit but was resolute that the omission was innocuous. Counsel pointed out that contrary to Mr. Lyimo's submission, it is plain that the person who took out the affidavit as Donald Sumary is the same person who verified and signed the affidavit as Donald Permena Sumary which name is reflected in the notice of motion. In addition, Mr. Mnyele submitted and, rightly so that, not only are the signatures in the verification clause and jurat of attestation are the same, the case cited; Lisa Peter is distinguishable because, unlike here, that decision dealt with omission to append a 3 signature in a verification clause which is not the case in the instant appeal. Despite Mr. Lyimo's insistence in his rejoinder, we agree with Mr. Mnyele that the omission to insert the middle name of the deponent in the introductory part of the affidavit is, a minor irregularity which did not go to the root of the affidavit. Similarly, as submitted by Mr. Mnyele, an objective reading of the notice of motion shows that the application is supported by the affidavit of Donal Permena Sumary whose name appears in the verification clause duly signed by him and thus the name in the introductory part of the affidavit, Donald Sumary refers to the same person. Indeed, from the facts, the Court's decision in Lisa Peter is wholly irrelevant to support the first ground of objection which is in consequence hereby overruled. Mr. Lyimo's argument in support of the second point is that the jurat of attestation is defective as the name of the deponent to the affidavit has not been disclosed. He argues that, there is no evidence that the deponent is either Donald Sumary or Donald Permena Sumary rendering it defective. He relies on the Court's decision in Director of Public Prosecutions v. Dodoli Kapufi & Another [2011] TZCA 46 to 4 argue that a jurat of attestation without the deponent's name and signature is defective vitiating the notice of motion. Mr. Mnyele argues that the jurat of attestation is in full compliance with section 8 of the Notaries Public and Commissioners for Oaths Act which rendered the Court's decision in Dodoli Kapufi bad law. According to him, following amendments to section 8 of Cap 12, it is no longer a legal requirement to mention the name of the deponent in the jurat of attestation and thus, the fact that the name of the deponent in the impugned jurat is not mentioned as such is not fatal to it. This is so, he argues, there is no dispute that the deponent to the affidavit is Donald Permena Sumary whose signature was appended. For a start, we do not agree with Mr. Mnyele that section 8 of Cap 12 rendered Dodoli Kapufi bad law in the context of the objection under consideration. All the same, having heard rival arguments from counsel, we think we should not be detained on this in view of the position we have taken when disposing of the first ground. We have already held that the deponent to the affidavit is the same person who verified the contents of the affidavit. Indeed, the signature appearing in the jurat of attestation is the same. Consequently, the Court's decision in Dodoli Kapufi is irrelevant Unlike here, in Dodoli Kapufi there was an omission to append a signature in the jurat of attestation which was held to be an incurable defect as can be seen at page 10 of the ruling. All in all, we overrule the second point of objection. Next, we shall consider the third point in which it is contended that the application is unmaintainable and barred in law for being sub judice Civil Appeal No. 254 of 2024 contrary to section 8 of the Civil Procedure Code ("the CPC"). Mr. Lyimo's argument was premised on the contention that the application arises from Civil Appeal No. 254 of 2024 which originated from Commercial Case No. 41 of 2023 involving the same parties and thus is not maintainable. However, when he was probed, counsel conceded that if the Court finds that the application is indeed sub judice, the appropriate order will be to stay it rather than striking it out. Mr. Mnyele was resolute that the conditions for subjudice not met to warrant the Court staying the hearing of the application. He argued that in the first place that this application preceded Civil Appeal No. 254 of 2024 and thus the Court cannot order the stay of the application as urged by his learned friend. Secondly, counsel contended that the two matters do not involve issues which are substantially similar. Mr. Lyimo was adamant that the notice of appeal in Civil Appeal No 254 of 2024 was lodged prior 6 to the instant application and thus it is a subsequently instituted matter which has to be stayed. Weshall begin our discussion on this ground by excerpting a passage from the Court's decision in CRDB Bank Limited v.Tanga Hardware & Auto Parts Ltd and Six Others [2007] T.L.R 371 "....Since the object o f the section is to prevent courts o f concurrent jurisdiction from sim ultaneously entertaining and adjudicating upon parallel litigation in respect o f the same cause o f action, the same subject m atter and the same re lie f and as the \'provisions o f the section are m andatory' and 'the Court before which the subsequent su it is pending ought to stay it where a ll the conditions la id down in the section exists (MuHa, supra to which observations we w holly subscribe) it is im perative that the one who intends to rely on it m ust avail the Court with fu ll particulars o f the pleadings in the previously instituted case unless the opposite partly concedes. We note here that High Court acted ju s t on subm issions and the written statem ent o f defence. It was necessary that the p ia in t be also availed. Only then would the Court be in a position to fu lly compare the two su its and be i able to decide on the sim ilarity or otherw ise..." [a t page 375]. It is glaring that the first respondent has not met the above requirement by her failure to avail the Court with a copy of the memorandum of appeal in Civil Appeal No. 254 of 2024 with a view to ascertaining whether this application is indeed sub ju dice warranting an order for its stay. At any rate, contrary to Mr. Lyimo, the first respondent has not managed to persuade us that this application was filed subsequent to Civil Appeal No. 254 of 2024 simply because the notice of appeal preceded it. As Mr. lyimo might be aware, what institutes an appeal is not the notice of appeal rather, a memorandum of appeal in terms of rule 90 (1) of the Rules. In the upshot, the preliminary point in the 3rd ground lacks basis and is hereby overruled. Finally, on the 4th point in which the 1st respondent contends that the application is incompetent on account of wrong citation of the enabling provision in the notice of motion. Mr. Lyimo was steadfast that rule 4 (2) (a) and (b) of the Rules for moving the Court in the application is not applicable since there is a specific provision; rule 109 (1) of the Rules under which an interested party can apply to be joined as an intervenor as it were. He cited the Court's decision in African Development Bank & Another v. East African Development Bank & Another, Consolidated Civil Application No. 84 & 89 of 2010 (unreported) for the proposition that wrong citation of an enabling provision in a notice of motion renders the application incompetent and liable to be struck out. He thus urged us to strike out the application for being preferred under a wrong provision. Mr. Kobas did not support the objection arguing that wrong citation is not fatal to the application. For his part, while conceding the wrong citation, like his colleague, Mr. Mnyele contended that wrong citation is not fatal in view of the proviso to Rule 48 (1) of the Rules in so far as the Court has jurisdiction to grant the reliefs sought in the notice of motion. He argued that, for that reason, the decision of the Court in African Development Bank is no longer good law having been made prior to the amendment of the Rules. Instead, he cited our decision in Charles Zakaria Mwenesano v. Daniel Samwel Chuma [2024] TZCA 677 for the proposition that, omission to cite a proper provision in the notice of motion is an irregularity which can be ignored as long as the Court has jurisdiction to grant the reliefs sought in the notice of motion. From the foregoing, the issue for our decision lies in whether the citation of rule 4 (2) (a) and (b) instead of 109 (1) of the Rules is fatal to the application. It is pertinent that, as submitted by Mr. Mnyele our decision in African Development Bank (supra) was superseded by the proviso to rule 48 (1) of the Rules which stipulates that: "Provided that where an application om its to cite any specific provision o f the law or cites a wrong provision ; but the jurisdiction to grant the order sought exists ; the irregularity or om ission can be ignored and the Court may order that the correct law be inserted, Confronted with a similar situation, in Charles Zakaria Mwenesano (supra), the Court stated: ".. where the Court has ju risd ictio n to entertain the prayers in a notice o f m otion, wrong citation or even a com plete om ission to cite the enabling provision in a notice o f m otion does not render the application in co m p eten t../' [ a t page 6] In view of the above, all we can say is that, since it is not in dispute that the Court has jurisdiction under rule 109 (1) of the Rules to order an interested person as it were to be joined in a pending appeal as an intervenor, the wrong citation in the notice of motion was not fatal to render the application incompetent. Consistent with the Court's decision in Charles Zakaria Mwenesano, this is a fit case for ignoring the 10 irregularity and the application proceeds for hearing on merit. Consequently, the 4th point of preliminary objection stands overruled. In the event, having overruled all the preliminary objections, we direct that the application be fixed for hearing on merit in the next convenient sessions of the Court on a date to be fixed by the Registrar. Costs shall be in the cause. Order accordingly. DATED at DODOMA this 16th day of December, 2025. Ruling delivered this 17th day of December, 2025 via Virtual Court in the presence of Mr. Gabriel Mnyele, learned counsel for the Applicant, Mr. Simon Barlow Lyimo, learned counsel for the 1st Respondent, Mr. Odhiambo Kobas, learned counsel for the 2n d and 3rd Respondents and Mr. John Banene, Court Clerk is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. E MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL a V d . p . k in y w a f u DEPUTY REGISTRAR COURT OF APPEAL 11