Mtibwa Sugar Estate Limited vs Zege Transport Service and Another (Civil Case No. 201 of 1996) [1999] TZHC 157 (18 February 1999)

.... n~ THE HIGH COUrtT OF TAI\ZAl\JIA DAR ES SALA.41/i._DISTR.ICT REGISTRY CIVIL CASE NO. 201 0£ 1996 · MTIBWA SUGAR ESTATE LIVITE:0 FLAINTIFF VERSUS 1 ZEGE TRANSFORT SERVICE i ... DEFENDANTS 2: NATIONAL INSUAR:ANCE CORFORATIOf, LTD.··· RULING BUBESHI, J: '' The applicant in this natter, Mtibivva Sugar Estates Ltd, have filed an application for review under Orde:r XLII (l)· and also for a stay of the exe..-ution pending hearing of the review of the decision of this court made on 5/8/1995 the 2nd respondent/defendant had prayed for and·judgment ehtered ;3.gainst the plaintiff in terms of 08 Rule· 14 (1). The respondent has filed four grounds. in forJT, of preliminary objections on points of lavt, namely that the ap1-,lication for stay is bad in law in that it has been brought under the wrong provisions of the law; that the affidavit in support of the cham~er application isinaurably defective offending 0 XIX Rule 3 of; that the affidavit worn by one G Ki tange, is defective in that it offends che provisions of Section. I of the hotary Fublic and CommissioY1er for,..,Qaths Ordinance, Cap.12; that the same affidavit quoted above is defec,tive in that it offends Section 8 of Cap .12. To substantiate his submissions, Mr. Msemwa for the respondent submitted that the ap-1.)lication has been brought under Orde·r XXI Rule 24 instead of being brought under Order XXXIX Rule 5 (1), where the court has powers to order. ,Stay of execution on condition there is sufficient cause (s) for so doing On second ob.jection Mr. Msemwa ..... /2 ::. ::- --,,

... 2 stated that the affidavit filed in pport thereto contains extranous matters by way of prayers. The case of UGAM)A vs cortHSSIONER OF f-RISOh - EXI-l\RI'E iVJTOVU (1966) E .A. 514, at page 520 was quoted in sufport of the pro:i;:osition. He stated that the affidavit filed by the applicant I contained extraneous rr,atters by way of prayers !.le nee it ough~ to be struck c,ff. frcE, ·tha record,; 'rhirdly, JVir. 1v,semwa stated that the applica·r.ts filed affidavit does not show where the oath was sworn and lacks the proer date. Fourthly, JVir. JVJsernwa added that the applicants ,,,__ affidavit V{as sworn by one G. Ki t.'.:lnge before E E \ 1 i'aniunza in her capacity as commissioner for oaths and yet it is this same E.E .Wamunza who is the applicants counsel .fh the matter. ii.tr. JVlsemwa submi ttd,,that by so d_oing, the provisions of Section 7 of Notary fublic and Cornrrissioner for Oaths Ordinance, Cap.12 were clearly V,.i:c~J..?~cJ"..J... He prayed that the affidavit being so clearly defective should not-be acted upon and the application be.:. ::ii3n:j_,a'iJed. I reply Mrs. E. E. Warnunza while conce:.:.iri.g_ ·that the application was brought under the wrong law, was-of the view that the defect could have been cured if the counsel for the respondent had not prayed for written .submissions-. I must confess I am at a loss of what Iv'1rs. Wmunza is up to in this regard.-· She was represented by lV1r. 1'igalo when Mr. Msemwa asked for leave to file his objections by way written ubmissions 0 She cannot certainly blame

Mr.Msemwa for ,.~hat transpired in court >~1:.: that date when she· vms represented. Further she concedes that the affidavit v.ras a'.:ttested t?Y herself and prays for leave to amend the application.- With respect to Mrs. Wamunza she has not put up convincing reasons to sKJ.-Y this court to her side~~ ,;fi th all the flaws that have been stated by Mr. Ivisemwa can this court· allow for an amendment of the affidavit? What I note .:r<tt:- that the whole affidavit must be struck off and re: written a fresh and not o;nly parts thereofe .... /3

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The case of SABAYAl\JOS FARVERS CO--Ol?ERATIVE SOCIETY LTD vs ANTOI\1Y MVHTA (1968) H.C.D. N0.354 is clearly distinguishable in my view, Of the points considered by the court in the SABAYAl\JOS case (supra) wa;3 one that the defendant's officer was a man of limited education, with no legal experience • ln the appl.i.crition at hand the application has been filed by a qualified counsel~ Having considered the arguments put forward by both counsel I have come t-:i the conclusion that, the filed affidavt was incuriably defective that to, order for its amendment would mean, in actual fact rewriting the who.Le. _. In the premises I decline the invitation extended by Mrs Wamunza and order that the affidavit be struck off. And there being no affidavit' in place, the application for stay of excution therefore ·fails. Preliminary objections are hereby upheld. Delivered in absence of l·arti_es who were duly served to appear. A. ·G •. BUDESII JUIX}E 18/2/99 J, r