Mtibwa Sugar Estate Ltd vs Zege Transport Services (Civil Case 201 of 1996) [1999] TZHC 21 (18 February 1999)

I 3 S i THE HIGH COURT OF TANZANIA DAR SS SALAAW" DISTRICT REGISTRY CIVIL CASE WO. 201 of 1996 MTIBWA SUGAR ESTATE LIKITEp ...... PLAINTIFF VERSUS 1, ZEGE TRANSPORT SERVICE _ DEFENDANTS 2. NATIONAL INSUARANCE CORPORATION LTD. ... R U L I N G BUBESHI. J ; The applicant in this matter, Mtibwa Sugar Estates Ltd, have filed an application for review under Order XLII (l) and also for a stay of the execution 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 entered Against the plaintiff in terms of 08 Rule 14 (l). The respondent has filed four grounds in form of preliminary objections on points of law, namely that the application 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 chamber application isinaurably defective offending 0 XIX Rule 3 of; that the affidavit sworn by one G Kitange^ is defective in that it offends cne provisions of Section. 1 0f the Notary Public and Commissioner for *©aths Ordinance, Cap. 12; that the same affidavit quoted above is defective in that it offends Section 8 of Cap 12. To subBtantiate his submissions, Mr. Msemwa for the respondent submitted that the application has been brought under Order XXI Rule 24 instead of being brought under ° Order XXXIX Rule 5 (l), where the court has powers to order stay of execution on condition there is sufficient cause (s) for so doing . 0n second objection Mr. Msemwa /2

2 stated that the affidavit filed in upport thereto contains extranous matters by way of prayers. The case of UGANDA vs COMMISSIONER OF IRISOV - EXPaRTE MATOVU (1966) E.A. 514, at page 520 was quoted in support of the proposition. He stated that the affidavit filed by the applicant contained extraneous matters by way of prayers - kence it ought tc be struck cff from the record,. Thirdly, Mr. Misemwa stated that the applicants filed affidavit does not show where the oath was sworn and lacks the proper date. Fourthly, Mr. Msemwa added that the applicants affidavit was sworn by one Kixange oefore E E iVamunza in her capacity as commissioner for oaths and yet it is this same E.E.Wamunza who is the applicants counsel in the matter. Mr. Misemwa submit ted,,that by so doing, the provisions of Section 7 of Notary Eublic and Commissioner for Oaths Ordinance, Cap.12 were clearly viLilefcid.,. He prayed that the affidavit being so clearly defective should not be acted upon and the application f c e •lisaa-msed. I reply Mrs. E, E» Warnunza while conce-»i?x S that uhe 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 Mrs. Wmunza is up to in this regard. She was represented by Mr. Ngalo ■when Mir. Msemwa asked for leave to file his objections by way written sbmissions. She cannot certainly blame Mr .Msemwa for what transpired in court ' sn- that date when she was represented. Further she concedes that the affidavit was attested by herself and prays for leave to amend the application. With respect to Mrs.Wamunza she has not put up convincing reasons to svray this court to her side? Vith all the flaws that have been stated by Mr, Msemwa can this court allow for an amendment of the affidavit? What I noter^t? that the whole affidavit must be struck off and re written a fresh and not only parts thereof. ..../3

3 The case of SABAYAI m OS FARMERS CO-OPERATIVE SOCIETY LTD vs ANTONY MWITA (1968) H.C.D. NO.354 is clearly distinguishable in my view, Of the points considered by the court in the SABAYAIMOS case (supra) was one that the defendant's officer was a man of limited education, with no legal experience. in the application at hand the application has been filed by a qualified counsel. Having considered the arguments put forward by both counsel I have come to the conclusion that, the filed affidavit was incuriably defective that to order for its amendment would mean, in actual fact rewriting the whole. 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 execution therefore fails. Preliminary objections are hereby upheld. A. G. BUBESHI JUDGE 18/2/99 Delivered in absence of Parties who were duly served to appear.