Fairtrans Marine, Trading And Forwarding S.A.E vs Da Yang Bai He (Miscellaneous Commercial Application No. 11777 of 2026) [2026] TZHC 3043 (9 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TANGA SUB-REGISTRY) AT TANGA MISCELLANEOUS COMMERCIAL APPLICATION NO. 11777 OF 2026 (Arising from Commercial Case No. 11720 of 2026) FAIRTRANS MARINE, TRADING AND FORWARDING S.A.E (Suing for Maritime Liens and Claims in Rem) ..... ........................ APPLICANT VERSUS DA YANG BAI HE (IMO 9618513) (Ship and Seagoing Vessel)...... ..... ....................... ........ ..........RESPONDENT RULING 29 th May & 09 th June, 2026 M. J. CHABA, J. This Ruling has its genesis in an application made viva voce by Mr. MohamedZameen Nazarali, learned counsel for the Respondent, on 29th May, 2026, in the course of resisting the Applicant's prayer for extension of the Holding Order pending the inter-partes hearing and determination of this Application. The said prayer was advanced by learned counsel for the Applicant, Mr. Nafikiel Mwamboma, who appeared together with Mr. Boaz John Mabula, learned advocate. Page 1 of 17 Having heard learned counsel for the parties and upon due consideration of the Applicant's prayer for extension of the subsistence of the Holding Order pending the inter-partes hearing and determination of this Application, this Court, on 29th May, 2026, found merit in the prayer and accordingly granted the same. Thereafter, the Court adjourned the delivery of its interlocutory ruling on the Respondent's viva voce application seeking leave to file a Supplementary Affidavit to 11th June, 2026. Following the making of the aforesaid oral application, the Court considered it appropriate to determine the same by way of this Ruling. In brief, the substance of the Respondent's prayer and submissions, which have given rise to this ruling, is as follows. When the application was called on for necessary orders on 29th May 2026, learned counsel for the Respondent, Mr. Nazarali, after opposing the Applicant's prayer as earlier stated, proceeded to seek leave of the Court to file a Supplementary Affidavit. The purpose of the proposed Supplementary Affidavit was to clarify issues raised in the Applicant's Affidavit in Reply to the Respondent's Counter-Affidavit, particularly the discrepancies relating to the names appearing in Paragraph 7.4 of the Respondent's Counter-Affidavit and Paragraph 13 of the Applicant's Affidavit in Reply to the Respondent's Counter Affidavit. According to learned counsel, the intended Supplementary Affidavit Page 2 of 17 was meant to provide additional information and evidence necessary for the proper determination of the substantive matter. The counsel submitted that, as reflected in Paragraph 7.4 of the Respondent's Counter-Affidavit, it is stated and explained that "New Unite Marine" is a bareboat charterer. However, in the Applicant's Affidavit in Reply to the Respondent's Counter-Affidavit, counsel for the Applicant challenged the reference to "New Unite Marine", contending that the certificate relied upon shows that, "Jiangsu Xingiian Shipping Co. Ltd" is the relevant entity. Mr. Nazarali further submitted that, the filing of a Supplementary Affidavit would place the Respondent in a better position to explain the relationship between "Xingiian Shipping" and "New Unite Marine". In that regard, he asserted that, "New Unite Marine" is the English name used by Xingiian Shipping and explained that it is common practice for Chinese nationals and companies to adopt English names when dealing with persons whose origins are not Chinese. He therefore urged the Court to note that, Exhibit DYBH2 already bears the seal of Xingiian, which, in his view, supports the explanation sought to be advanced through the intended Supplementary Affidavit. On the other hand, counsel for the Applicant jointly and vigorously opposed the prayer from the very outset. In their brief but focused reply submissions, Mr. Mwamboma was the first to address the Court. He invited this Honourable Court to be guided by the decision of the Court of Appeal of Tanzania in Charles Page 3 of 17 Christopher Humphrey vs. Kinondoni Municipal Council, Civil Application No. 456/17 of 2021 [2024] TZCA 277, particularly at page 11, on the circumstances under which leave to file a supplementary affidavit may properly be granted. He went on to argue that counsel for the Respondent had failed to demonstrate any sufficient basis warranting the grant of leave to file a Supplementary Affidavit. In particular, no explanation had been offered as to whether the matters sought to be clarified were new matters or matters that were not within the Respondent's knowledge at the time of filing the Counter Affidavit. According to him, the application was merely premised on the need for "clarification" and, therefore, failed to meet the applicable legal threshold governing the filing of a Supplementary Affidavit. He concluded by urging the Court to be guided by the authority cited hereinabove before seeking leave of the Court to invite his learned colleague, Mr. Boaz, to make further submissions and observations on the matter. For his part, Mr. Boaz submitted that the Applicant strongly opposed the Respondent's application for leave to file a Supplementary Affidavit. He argued that, the law is settled that a Supplementary Affidavit is an exception rather than the rule and constitutes a mere indulgence granted by the Court, not a right available to a litigant as of course. According to him, the doctrines of a single affidavit and full and frank disclosure require parties to place before the Court all Page 4 of 17 material facts within their knowledge at the earliest opportunity. He further submitted that a Supplementary Affidavit is intended only to introduce genuinely new facts, newly discovered evidence, or unforeseen matters which could not reasonably have been presented earlier. It is not a mechanism for curing defects, rectifying omissions, explaining inconsistencies, strengthening a weak case, or filling gaps in an affidavit already filed. He contended that the matters sought to be clarified concerned deficiencies, irregularities, and inconsistencies already exposed by the Applicant in the Reply Affidavit, including omissions appearing in Annexure DYBH-1. These, he argued, were matters that had always been within the Respondent's knowledge at the time the Counter-Affidavit was sworn and filed, and therefore could not qualify as new matters or subsequently discovered evidence capable of justifying the filing of a Supplementary Affidavit. To buttress his submissions, Mr. Boaz cited several judicial authorities which, according to him, consistently affirm the principle that a Supplementary Affidavit may only supplement a proper and existing affidavit and cannot be used to rectify defects or omissions therein. Among the authorities cited were Charles Christopher Humphrey & Others vs. Kinondoni Municipal Council (supra); Rahel Kazimoto vs. Mwajabu Yusufu Mtambo and Another (Civil Application No. 10 of 2007); Method Kimomogoro vs. Board of Trustees TANAPA (Civil Application No. 1 of 2005) [2005] TZCA 207 (6 July 2005); and Page 5 of 17 Registered Trustees of St. Anita's Greenland Schools (T) & Others vs. Azania Bank Limited (Civil Application No. 168 of 2020) [2022] TZCA 334 (9 June 2022). He submitted that, these authorities uniformly hold that leave to file a Supplementary Affidavit will only be granted where the applicant demonstrates the existence of newly discovered matters and provides good and sufficient reasons explaining why such matters were not included in the original affidavit. Likewise, learned counsel referred the Court to persuasive authorities from South Africa, which affirm that the filing of further affidavits is an indulgence granted only in exceptional circumstances and upon a satisfactory explanation demonstrating the absence of mala-fides or culpable remissness. These authorities included Yves Sauveur Accolla vs. Tommaso Sboro and the Companies and Intellectual Property Commission (Case No. 024263 of 2022, Gauteng Division, Pretoria); Distell Limited vs. The Commissioner for the South African Revenue Service (Case No. 16910 of 2009, North Gauteng High Court), at pages 4-5; and Standard Bank of South Africa vs. Sewpersadh 2005 (4) SA 148 C at 154. Moreover, Mr. Boaz contended that in the instant case, the Respondent's counsel had neither identified any new fact nor provided a satisfactory explanation as to why the matters now sought to be introduced were omitted from the Counter-Affidavit. Consequently, he argued that the application was Page 6 of 17 contrary to the established legal principles governing supplementary affidavits and appeared to be nothing more than an attempt to repair and strengthen the Respondent's case after its weaknesses had been exposed. He further maintained that, granting the application would occasion prejudice to the Applicant by permitting the Respondent to retrospectively cure fundamental defects in the Counter-Affidavit, thereby conferring upon it an unwarranted procedural advantage. According to him, such a course would encourage piecemeal litigation, delay the proceedings, and undermine the principles of procedural fairness. Mr. Boaz further submitted that a party seeking leave to file a Supplementary Affidavit must demonstrate the existence of exceptional circumstances, such as newly discovered facts, fresh evidence, or unforeseen matters arising after the filing of the original affidavit. Equally important, the applicant must furnish a satisfactory explanation as to why such matters could not, through the exercise of reasonable diligence, have been included in the original affidavit. He argued that the Respondent had failed to satisfy any of those requirements. In his view, no new fact, fresh evidence, or subsequent event had been identified. Likewise, no explanation had been offered as to why the matters now sought to be introduced were omitted from the Counter-Affidavit despite having been within the Respondent's knowledge at the material time. Page 7 of 17 The counsel went on to submit, with considerable emphasis, that Courts have consistently frowned upon the suppression of material facts and attempts to remedy deficiencies through subsequent affidavits. In support of that proposition, he referred the Court to the persuasive decision in Kusha Duruka vs. State of Odisha (Criminal Appeal No. 303 of 2024), wherein the Supreme Court of India emphasized that, a litigant who approaches the Court without full candour and withholds material facts abuses the judicial process and is undeserving of the Court's discretionary relief. He further insisted that granting the Respondent's application would occasion serious prejudice to the Applicant. In particular, it would permit the Respondent to circumvent the established principles governing supplementary affidavits, cure fundamental defects in the Counter Affidavit after those defects had already been exposed, and secure an unwarranted procedural advantage. According to him, the matters sought to be "clarified" were not proper subjects of supplementation but rather constituted an attempt to reconstruct and strengthen the Respondent's case through fresh explanations and additional assertions. He argued that allowing such a course would encourage piecemeal litigation, undermine procedural discipline, delay the determination of the substantive application, and occasion manifest unfairness to the Applicant by Page 8 of 17 compelling him to respond to matters which ought to have been disclosed at the earliest opportunity. In conclusion, Mr. Boaz rested his submissions on the position that the Respondent had failed to establish any exceptional circumstance warranting the exercise of the Court's discretion in its favour. He therefore urged the Court to dismiss the application for leave to file a Supplementary Affidavit with costs. In rejoinder, Mr. Nazarali conceded that counsel for the Applicant had vigorously opposed the Respondent's application for leave to file a Supplementary Affidavit and had undertaken extensive research on the issue. He candidly acknowledged that, unlike his learned friends on the opposite side, he had not enjoyed the benefit of adequate time to prepare a comprehensive response to the numerous authorities cited in opposition to the application. Be that as it may, counsel humbly maintained that the Respondent's prayer for leave to file a Supplementary Affidavit was meritorious and ought to be granted. According to him, the sole purpose of the proposed affidavit was to clarify certain matters and place before the Court material facts relevant to issues raised in the Applicant's Affidavit in Reply to the Respondent's Counter Affidavit. He argued that, should leave be granted, the Applicant would suffer no prejudice, as he would be afforded full liberty and opportunity to respond thereto. In support of that proposition, the counsel sought reliance on the Page 9 of 17 decision in Charles Christopher Humphrey vs. Kinondoni Municipal Council (supra). With regard to the remaining authorities relied upon by the counsel for the Applicant, Mr. Nazarali submitted that they were distinguishable both on their facts and on the circumstances under which they were decided and were therefore of limited assistance to the present application. As for the South African decisions cited, counsel argued that, while they may possess persuasive value, they are not binding upon this Honourable Court. Finally, counsel submitted that the clarification sought was neither intended to cure a defective affidavit nor to introduce an entirely new case. Rather, it related to the discrepancy in the names referred to in Paragraph 7.4 of the Respondent's Counter Affidavit and Paragraph 13 of the Applicant's Affidavit in Reply to the Respondent's Counter Affidavit. According to him, the proposed Supplementary Affidavit merely seeks to explain that, in the People's Republic of China, it is common for business entities to operate under both English trade names and corresponding Chinese names. He contended that, this explanation bears directly upon the issue raised by the Applicant and is necessary to assist the Court in arriving at a just and informed determination of the matter. Having heard learned counsel for the respective parties and having given due consideration to their rival submissions both in support of, and in opposition to the prayer under consideration, the task now falling for determination is Page 10 of 17 whether the Respondent has satisfied the established legal principles governing the grant of leave to file a supplementary affidavit. From the outset, I find it imperative to ascertain the nature and substance of the Supplementary Affidavit which learned counsel for the Respondent seeks leave to file in response to the Applicant's Affidavit in Reply to the Respondent's Counter-Affidavit. Such an inquiry is necessary because the propriety of granting leave depends, to a large extent, on the purpose for which the intended Supplementary Affidavit is sought to be introduced and whether it falls within the legally recognized parameters governing such affidavits. In Charles Christopher Humphrey vs. Kinondoni Municipal Council (supra), the Court observed at page 11 that: " Notably, a supplementary affidavit is similar to a regular affidavit, but it is made to support or supplement an existing valid affidavit not otherwise. It is intended to add more details by providing additional information or evidence to support a case in a legal matter". In order to appreciate the nature of a supplementary affidavit, it is useful to revisit the meaning of an affidavit itself. In D.B. Shapriya and Co. Ltd. vs. Bish International BV (Civil Application No. 53 of 2002) as was quoted in the case of Mabi Auctioneers (T) Ltd. vs. NBC Holding Corporation (formerly Consolidated Holding Corporation), Civil Application No. 176 of 2004 [2005] Page 11 of 17 TZCA 255 (26 August 2005), at pages 4-5, the Court of Appeal defined an affidavit as follows: "Affidavit has been defined as a written document containing material and relevant facts or statements relating to the matters in question or issue and sworn by the deponent before a person or officer duly authorized to administer any oath or affirmation or take any affidavit. It follows from this definition that an affidavit is governed by certain rules and requirements that have to be followed..... " Reverting to the matter at hand, it is now settled that leave to file a supplementary affidavit may only be granted where two essential conditions are satisfied. First, the proposed affidavit must seek to introduce new facts, information, or evidence which were not within the knowledge of the deponent when the original affidavit was sworn and filed. Secondly, the applicant must furnish good and sufficient reasons explaining why such matters were not presented earlier. Even then, the Court must be satisfied that the admission of the supplementary affidavit will not occasion prejudice to the opposing party. [See - Charles Christopher Humphrey vs. Kinondoni Municipal Council (supra)]. Armed with the foregoing principles, I now turn to the central controversy in the present application. According to learned counsel for the Respondent, the Page 12 of 17 purpose of the intended Supplementary Affidavit is to clarify the contents of Paragraph 7.4 of the Respondent's Counter-Affidavit and to address the discrepancy raised in Paragraph 13 of the Applicant's Affidavit in Reply to the Respondent's Counter Affidavit. For ease of reference, I reproduce the relevant portions hereunder: Paragraph 7.4 of the Respondent's Counter-Affidavit states that: "The Vessel is registered under a bareboat charter. The Certificate of Registration of Bareboat Charter identifies Yangtze United Financial Leasing Co., Ltd. as owner and New Unite Marine Co., Ltd. as bareboat charterer. Accordingly, New Unite Marine Co., Ltd. is also the manager of the Vessel. A copy of the said certificate is exhibited hereto marked 'DYBH-1', forming part of this Counter-Affidavit. " Paragraph 13 of the Applicant's Reply Affidavit: "Paragraph 7.4 is disputed. When read together with DYBH-1, it reveals a discrepancy. DYBH-1 shows that the ship owner/lessor is Yangtze United Financial Leasing Co., Ltd., while the charterer is 'Jiangsu Xing Han Shipping Co., Ltd. ' and not New Unite Marine Co., Ltd. I further state that certain English words appear to have been intentionally deleted from DYBH-1. " Page 13 of 17 A careful reading of the foregoing averments reveals an apparent inconsistency regarding the identity of the bareboat charterer, namely, whether it is Jiangsu Xinglian Shipping Co. z Ltd, or New Unite Marine Co., Ltd, However, the mere existence of such an inconsistency does not, without more, justify the filing of a supplementary affidavit. The rationale underlying a supplementary affidavit is not to afford a litigant an opportunity to cure defects, reconcile inconsistencies, strengthen a weak case, or provide explanations concerning matters already within the deponent's knowledge at the time of filing the original affidavit. Rather, the law permits such an affidavit only in exceptional circumstances where genuinely new facts or evidence have emerged and where their admission is necessary to assist the Court in arriving at a just determination of the dispute. In the instant case, the explanation which the Respondent now seeks to introduce is that, "New Unite Marine" is the English name of "Jiangsu Xinglian Shipping Co., Ltd.," and that it is common practice in China for companies to use both Chinese and English names when dealing with international parties. In my considered view, this is not a newly discovered fact. It is information which, by its very nature, was within the Respondent's knowledge when the Counter Affidavit was sworn and filed. The difficulty confronting the Respondent is that no satisfactory explanation(s) has been offered as to why this information was omitted from the Page 14 of 17 Counter-Affidavit in the first place. Equally unexplained is why the alleged relationship between Jiangsu Xinglian Shipping Co., Ltd., and New Unite Marine Co., Ltd., was not disclosed earlier if it was indeed material to the Respondent's case. It is manifest from the record that the Respondent was fully conversant with the particulars of the vessel namely, Da Yang Bai He (IMO No. 9618513), which forms the subject matter of these proceedings. In those circumstances, it is difficult to accept that the facts now sought to be introduced only became relevant or known after the filing of the Respondents Counter-Affidavit. Viewed objectively, the proposed Supplementary Affidavit appears intended not to introduce newly discovered facts but rather to explain and reconcile an inconsistency identified by the Applicant in the Respondent's existing evidence. Such a purpose falls outside the recognized scope of a supplementary affidavit. The law does not permit a party to withhold known facts and thereafter seek leave to introduce them only after deficiencies in his case have been exposed by the opposing party. In the absence of a satisfactory explanation for the omission, the application falls short of the legal threshold required for the grant of leave. Accordingly, and without labouring the point any further, I find no merit in the Respondent's prayer for leave to file a Supplementary Affidavit. The application does not satisfy the established legal principles governing the exercise of the Court's discretion in such matters. Page 15 of 17 In the result, the oral application for leave to file a Supplementary Affidavit, made by learned counsel for the Respondent following the filing of the Applicant's Affidavit in Reply to the Respondent's Counter-Affidavit, is hereby dismissed. Given the nature of the application and the circumstances of the case, I make no order as to costs. Order accordingly. DATED at TANGA this 09th day of June, 2026. M. J. CH ABA JUDGE 09/06/2026 Court: Ruling delivered under my Hand and Seal of the Court in Chambers this 09th day of June, 2026 in the presence of Mr. Boaz John Mabula, learned counsel for the Applicant and Mr. MohamedZameen Nazarali, learned counsel for the Respondent. Page 16 of 17 M. 1 CHABA JUDGE 09/06/2026 Court: Right of the parties to appeal to the Court of Appeal of Tanzania, is fully explained. Page 17 of 17