Elias Masija Nyang'oro and Another vs Ephraem Christopher Manase Mrema (Civil Application No. 131/02 of 2024) [2024] TZCA 1123 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. J.A.. KENTE, 3.A. And MGONYA, J.A/1 CIVIL APPLICATION NO. 131/02 OF 2024 ELIAS MASIJA NYANG'ORO EDNA ELIAS NYANG'ORO ... 1st APPLICANT 2 n d APPLICANT VERSUS EPHRAEM CHRISTOPHER MANASE MREMA RESPONDENT (Application for leave to lodge a Supplementary Affidavit in respect of Civil Application No. 82/02 of 2023 from the Ruling and Order of the High Court MGONYA, J.A.: Elias Masija Nyang'oro and Edna Eiias Nyang'oro, the applicants, filed this application seeking leave of the Court to allow them to file a supplementary affidavit in relation to Civil Application No. 82/2 of 2023 which is pending before the Court. The application is made under rules 48(1) and 56(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit deposed by Boniface Joseph, the applicants' counsel. of Tanzania, Commercial Division at Arusha) (Nchimbi, 3.^ dated the 5th day of November, 2014) in Commercial Case No. 20 of 2013 RULING OF THE COURT 1st & 19th November, 2024

The background of the application as garnered from the record of the application briefly stated is that; the respondent was a petitioner in Commercial Case No. 20 of 2013 which was filed against the applicants, before the High Court of Tanzania, Commercial Division at Arusha. Having heard the parties, the High Court decided in favour of the respondent. Aggrieved by the said decision, the applicants lodged a notice of appeal and wrote a letter requesting for a certified copy of the proceedings to constitute a record of appeal. While the applicants were still waiting to be supplied with the requested proceedings, the respondent approached the Court and lodged Civil Application No. 82/2 of 2023, seeking for an order to strike out the Notice of Appeal lodged by the applicants on 5th November, 2014. In opposing the said application, the applicants filed an affidavit in reply and written submission. As the respondent's application to strike out the notice of appeal is yet to be determined, the applicants lodged the instant application seeking to file a supplementary affidavit. However, the ground(s) upon which the applicants rely to support the application are not stated in the notice of motion as required by rule 48 (1) of the Rules. At the hearing of the application, the applicants were represented by Mr. Ipanga Kimaay, learned counsel whereas, the respondent enjoyed the services of Mr. Richard Massawe holding brief of Mr. Salim Mushi, learned counsel with instruction to proceed.

Before commencement of the hearing, having alreted the counsel for the parties on the context and requirements of rules 48 (1) and 56(2) of the Rules, we requested them to respond on the propriety or otherwise of the application before the Court. Mr. Kimaay persistently contended that the application is properly before the Court because a party is allowed to apply for leave to file a supplementary affidavit. He maintained that, though rule 56 (2) provides that such an application can be made informally before a Justice or with the consent of the other party, the rules do not restrict the Court to hear and determine a formal application placed before it. He thus pressed the Court to determine the application. On the other hand, Mr. Massawe submitted briefly that the application was filed contrary to rules 48 (1) and 56 (2) and therefore, it is improperly before the Court. He however left the matter for the decision of the Court. On our part, having gone through the record of the application before us in light of rules 48 (1) and 56 (2) of the Rules, we do not agree with the applicant's counsel stance on the propriety of the application at hand. Rule 48(1) of the Rules states: "48-(l) Subject to the provisions of sub-rule (3) and to any other rule allowing Informal application, every application to the Court shall be by notice o f motion supported by affidavit and shall cite the specific rule under which it is brought and

state the ground for the relief sought" [Emphasize supplied]. The above provision of the law is clear that, every application shall not only be by way of a Notice of Motion and supported by affidavit, but also the said Notice of Motion and affidavit must state the grounds for the relief sought. It is therefore clear that, the applicant must state in the notice of motion what has prompted him/her to file the application and the said ground should be explained in the supporting affidavit, so as to move the Court to consider and determine the prayer sought. In the application at hand, as we have intimated earlier, the applicants seek for an order of the Court to allow them to file a supplementary affidavit. However, the Notice of Motion does not state any ground to justify the application. This fact was conceded by the applicants' counsel, but he maintained that the affidavit has explained the context of the application. The issue for determination is whether the instant application preferred pursuant to rule 56(2) of the Rules is properly before the Court. The respective rule provides that: "56(2) Any such person may, with the leave o f a Justice or with the consent of the applicant, lodge one or more supplementary affidavits, and application for leave to do so may be made informally" [Emphasis supplied]. 4

The wording of the above rule appears to be unambiguous as it requires the applicant to seek an informal consent of the respondent or leave of a single Justice to file one or more supplementary affidavits. Therefore, directing a formal application to the Court seeking an order in terms of rule 56(2) of the Rules, is not proper. We are alive to the fact that rule 56(2) of the Rules gives mandate to the Justice of the Court through an informal application to grant a party leave to lodge one or more supplementary affidavits. However, we are of the considered view that under the same provision, a full court properly seized with the record of the application can also grant such leave upon an informal application by a party made in the cause of hearing. We hold this view because though in terms of rule 48(1) and (2) of the Rules, an application to the Court must be made formally by the notice of motion supported by an affidavit, sub-rule (3) of the same rule provides for an informal application to the Court made in the course of hearing or an informal application made by letter with the consent of all parties. In the result, we hold that the applicants ought to have made an informal application before the Court seized with the record of Civil Application No. 82/02 of 2023.

In this regard, even if the applicants would have complied with the requirements of rule 48(1) of the Rules by disclosing the grounds for the order sought, in terms of rule 56 (2) of the Rules, we find the instant application to be improperly before the Court and misplaced. Consequently, we strike it out. We make no order as to costs. DATED at DAR ES SALAAM this 18th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 19th day of November, 2024 via video conference from the High Court of Arusha in the presence of Mr. Erasto Jones, who holding brief Mr. Ipanga Kimaay, learned counsel for the Applicant and Mr. Richard Massawe, learned counsel the Respondent, is hereby certified as a true copy of the original. &V, W. A. HAMZA l&EPUTY REGISTRAR ^COURT OF APPEAL K /■---------------------------------------------------------------------------------------