Permanent Secretary Ministry of Defence & National Services & Others vs Bacco & Ayubu Trading Company Limited (Civil Application No. 874/06 of 2023) [2024] TZCA 941 (24 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 874/06 OF 2023 PERMANENT SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE.. ......... CHIEF DEFENCE FORCES TANZANIA PEOPLE'S DEFENCE FORCES HEAD QUARTERS ATTORNEY GENERAL.............................. . ...... 2n d APPLICANT .3r d APPLICANT 1s t APPLICANT VERSUS BACCO AND AYUBU TRADING COMPANY LIMITED RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) 9th 8 c 24th September, 2024 FIKIRINI. J.A.: The 1s t, 2n d and 3r d applicants, namely the Permanent Secretary Ministry of Defence and National Service, Chief of Defence Forces Tanzania and the Attorney General, were sued before the Commercial Court Division in Commercial Case No. 40 of 2015 for breach of contract of supply of meals ready to eat, in the Tender No. ME.020/2012/13/HG/G/01, won by the respondent Bacco and Ayubu Trading Company Limited. Aggrieved by the decision dated 9th (Nflngela, J.) dated 9thday of February, 2023 in Commercial Case No. 40 of 2015 RULING

February, 2023, the applicants lodged a notice of appeal intending to challenge the impugned decision on 2n d March, 2023. The applicants alleged that they were served with a notice to show cause on the 3r d March, 2023, meaning the respondent had initiated execution proceedings. This prompted the applicants by way of notice of motion predicated under rules 4 (2) (a), (b), (c.), 11 (4), 11 (5) (a), (b), 11 (6), 11 (7) (a), (b), (c) and (d) and rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to lodge the present application on 17th November, 2023. The application is supported by an affidavit sworn by Auson Erasmus Makanzo, a legal officer employed by the Ministry of Defence and National Services. Contesting the application, the respondent, through Ayubu Amani, the Principal Officer, swore an affidavit in reply and lodged a notice of preliminary objection (PO) on 1s t December, 2023 containing four grounds on the point of law that is:-

1. That applicants' application is incompetent for want o f 2n d and 3 d applicants' affidavits.

2. That applicants' application is incompetent for being supported by an incurable defective affidavit, which is sworn by the advocate who is representing the applicants.

3. That the applicants'affidavit containing hearsay evidence.

4. That the applicants'application is time barred. On the scheduled hearing date, Mr. Baraka Nyambita, learned Senior State Attorney, assisted by Ms. Hosana Mgeni and Ms. Emma Ambonisye, learned Senior State Attorney and State Attorney respectively, appeared for the applicants, whereas Mr. Boniface Erasto Meli and Mr. Emmanuel Makene, learned advocates, appeared for the respondent. Addressing the Court on the first point of objection that the application is incompetent for lack of affidavits of the 2n d and 3r d applicants, Mr. Meli submitted that Rules 49 (1) and 48 (1) of the Rules have not illustrated that parties being represented by one person can do away with the procedure in place. Moreover, in the affidavit deponed, nowhere has it been illustrated that the deponent represented all the applicants. He said the law is not discriminatory in that it caters for one party and not for the other. It was his submission that, in paragraph one, the deponent clearly illustrated that the 1st applicant had assigned him, and nowhere in it was stated that he had been authorized to swear an

affidavit on behalf of the 2n d and 3r d applicants. He referred the Court to the cases of The Registered Trustees of St. Anita's Greenland Schools (T) & Others v. Azania Bank, Civil Application No. 168/16 of 2020 and ABSA Bank Tanzania Limited & Another v. Hjordis Fammestad, Civil Application No. 695/16 of 2012. Replying to the submissions by Mr. Meli, Mr. Nyambita submitted that the first ground of preliminary objection is devoid of merit. His reasons were that the deponent had clearly stated that he was assigned to depone an affidavit, and according to their interpretation, it covered all the three applicants. Concluding his submission, he canvassed through the cases cited by the counsel for the applicants as distinguishable to the situation in the present application. In those cases, the applicants were natural persons, so authorization was needed, whereas, in the present application, the 2n d and 3r d applicants are necessary parties by the law; hence, no authorization is needed. He prayed the ground to be dismissed. Rejoining Mr. Meli, maintained his position that the deponent was only authorized by the 1s t applicant and not the 2n d and 3r d applicants.

Rule 48 (1) of the Rules requires every formal application to the Court to be by way of a Notice of Motion supported by an affidavit or affidavits, and Rule 49 (1) of the Rules requires every application to the Court to be supported by an affidavit. The Rule states; "Every forma / application to the Court shall be supported by one or more affidavits o f the applicant or o f some other person or persons having knowledge o f the facts . " Under paragraph one of the affidavit, the deponent clearly stated that he is a legal officer employed by the Ministry of Defence and National Services and was assigned to handle the matter. The statement connotes that the counsel had an authorization of the 1s t applicant only to handle the matter, as rightly submitted by the counsel for the respondent. There is nowhere the deponent illustrated to have been authorized by the 2n d and the 3r d applicants to depone the affidavit on their behalves. The cited case of The Registered Trustees of St. Anita's Greenland Schools (T) & Others, (supra) which had almost the same scenario is relevant to this matter. In the said case, there were seven applicants. The third applicant swore an affidavit on her own behalf and on behalf of the first applicant only.

The second, fourth, fifth, sixth and seventh applicants did not file an affidavit to support their application, the Court held; thus, failure by the applicants to file affidavits to cover all of them is fatal to the application, and consequently, it struck out the application. Being a State Attorney employed by the Office of the Solicitor General or the Attorney General, the deponent is legally authorized to handle any matter in which the Government is a party before the court. However, since the applicants are from three different institutions, the counsel ought to have stated categorically that he was authorized by the 2n d and the 3r d applicants or, by virtue of his position, he was authorized to handle the matter for all applicants, in the absence of any statement illustrating that he deponed the affidavit on behalf of all three applicants, the affidavit in support of the application remains that of the 1s t applicant only. The 2n d and 3r d applicants are considered to have not filed affidavits supporting the application. The applicant's counsel's contention that the cited case is distinguishable in the situation simply because the parties in the present case are Government institutions is unsupported. This is because the provision of Rule 49 (1) caters to all parties being a

natural person or Government institution and does not apply differently when the party is a Government institution. At most, what the deponent could have done would be to state that by being a State Attorney, he qualified to represent and depone an affidavit on behalf of all the three applicants since they are interrelated institutions, short of which, the application is incompetent. The ground is sustained. On the second and third grounds, that the affidavit supporting the application is incurably defective, the respondent submitted that generally, the affidavit supporting an application is preferably to be that of the applicant and rarely that of an advocate representing the applicant. And, if an advocate depones the affidavit, it must be shown that he or she was authorized and who gave him or her the information or the source. Furthermore, the deponent of the affidavit must have had the conduct of the case or followed up on the matter, hence conversant with the facts being deponed. This is more so even when the deponent would do so under section 3 of the Advocate Act, Cap. 341 Revised Laws, whereby any officer from the AG's office qualifies as an Advocate. Supporting his submission, he referred me to the cases of Tanzania Breweries Ltd v. Herman Bildad Minja, Civil

Application No. 11/18 of 2019 and Lalago Cotton Ginnery & Oil Mills Company Ltd v. The Loan Advances Realization Trust (LART) (Civil Appeal No. 51 of 2002 [2004] TZCA 48 (20th January, 2004; TANZLii). According to the learned counsel, the applicant's affidavit did not indicate that the deponent had previously represented or prosecuted the case on their behaff to warrant his claim of the authenticity of the averment he was making. This was made worse since the source of information was not given. The affidavit, therefore, lacks truthfulness. Due to its defective nature, the affidavit could not support the application before the Court. The learned counsel again referred to the case of ABSA Bank Tanzania Ltd (supra). The learned Senior State Attorney, countering the submission, opined that the ground did not fall within the ambit of preliminary objection as stated, and there are cases already in place taking care of that aspect. See: Jackline Hamson Ghikas v. Mlatie Richie Assey, (Civil Application No. 656/01 of 2021) [2022] TZCA 438 (18th July, 2022: TANZLii). As for the hearsay component, he argued that it had been dealt with in paragraph one of the affidavit, that he was a

legal officer of the 1s t applicant and hence conversant with the facts, therefore fit to depone the affidavit on behalf of the applicants. The learned Senior State Attorney, thus, considered the TBL and ABSA Bank cases (supra) as distinguishable. He urged for the dismissal of the ground. Reading from the affidavit supporting the application, it is evident that the deponent never stated that he had conducted the case in the High Court and hence conversant with the facts, neither had he stated his source of information. The source of information is thus unknown, considering that he did not take part in the conduct of the case previously. Since the deponent was only authorized by the 1s t applicant to swear the affidavit, and being its officer, had information about the case in relation to the l b t applicant alone. Anything stated about the 2n d and 3r d applicants in the affidavit was hearsay since he had no any information and did not state how he got the same. In the cited case of ABSA Bank (supra), the Court said:- "I have observed that Mr. Kamara's insistence that Mr. Pesha was aware o f those facts in his own knowledge, would ultimately render even the affidavit be defective for containing matters which are not in deponent's

knowledge and yet failed to disclose the source o f knowledge. Disclosing the source o f knowledge is crucial in affidavits." Since the affidavit was deponed by a person not authorized to depone and it contains hearsay evidence it is defective. It makes the application incompetent as it is not supported by an authentic affidavit. Now, considering all defects analysed hereinabove, and the fact that contravening Rules 48 (1) and 49 (1), which have been couched in mandatory form as held in The Registered Trustees of St. Anita's Greenland Schools & Others (supra), that cannot be cured by overriding objective principle. The application is incompetent and ought to be struck out. The ground is sustained. The last ground is that the application is time barred. The respondent averred that the applicants under paragraph 13 of their affidavit deponed that they were served with the notice of execution on 3r d March, 2023 and it is a fact that the application was lodged on 17th November, 2023. Thus, the application was lodged out of time in terms of Rule 11(4) of the Rules. On the other hand, the applicants aver that the assertion requires evidence, so it does not fall within the ambit of preliminary objection. And for the issue of difference in the 10

dates, the learned Senior State Attorney contended that it was just a slip of pen since the document annexed shows another date, which shows the application was lodged within time. The respondent persisted that the affidavit could only be contradicted by another affidavit and not a statement from the bar that it was a slip of the pen. Going by the records, it is evident that under paragraph 13 of the affidavit in support of the application, the applicant's legal officer has deponed that, they were served with the notice of execution on 3r d March, 2023. They have attached a copy of the notice of application of execution marked as annexture OSG-6, found on page 64 of the record which the Office of AG received on 3rd November 2023. Counting from 3rd November, 2023 to 17th November, 2023, it is only 14 days which is within time. Nevertheless, the questions are whether, first, the ground of preliminary objection is factual and requires evidence so does not fall under the ambits of preliminary objection and two, the date sworn in an affidavit can be opposed by an oral submission from the applicants' counsel that, 3r d March, 2023, featured in paragraph 13 of the affidavit was a slip of the pen. ii

Starting with whether the ground requires evidence to prove the same, I think this argument is misplaced since what was deponed in an affidavit was substantiated by an annexture on the record. The problem is that the content of the affidavit does not tally with the annexture, which makes the affidavit contain a false statement. As a matter of fact, the issue of time limitation is a pure point of law. To add, a notice of execution is among the documents required by the Rules to be attached when filing the application for stay of execution under Rule 11 (7) of the Rules; therefore, one cannot argue that referring to it is gathering evidence. The rule is what is deponed in an affidavit ought to tally with its annexture on record. Otherwise, the affidavit is defective. The point of time limitation in the circumstance of this application is a pure point of law and not one requiring evidence, as alluded to in the submission by the learned Senior State Attorney; hence, it suffices as a point of preliminary objection. The next question I am invited to answer is whether the date deponed in an affidavit can be countered by an oral submission from the applicants' counsel. The general rule is that submissions are not evidence; submissions are meant to reflect the general features of a party's case. They are elaborations or explanations on evidence 12

already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence. See: Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006. Now, an affidavit, being a substitute for oral evidence, ought to be sworn, and if the applicant or any party intends to counter any fact deponed in the affidavit therein ought to swear another affidavit unless the point is legal, then even without an affidavit, that point can be addressed. See; Rosemary Stella Chambe Jairo v. David Kitundu Jairo (Civil Reference 6 of 2018) [2021] TZCA 442 (2n d September, 2021; TANZLii). By the foregoing analogy, it means that what was deponed by the applicants in their affidavit in support of the application is what it stands as of now. It has not been countered by another affidavit as clearly submitted by the respondent's counsel. The submission that it was a slip of the pen is nothing but a statement from the bar which is not evidence to counter what was stated in the affidavit, which means the affidavit remains intact to the effect that the notice of execution was received on 3r d March, 2023 and since the application was lodged 13

on 17th November, 2023 then it was out of time which its consequence is striking out the application. That said and done, the fourth ground of preliminary objection is sustained. As discussed above, all four grounds of preliminary objection are sustained, making the application incompetent. Accordingly, the application is struck out. DATED at DAR ES SALAAM this 24th day of September, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 24th day of September, 2024 in the presence of the Ms. Careen Masonda, learned State Attorney for the applicants and Mr. Boniphace Erasto Meli, learned counsel for the respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14