IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)
AT DAR ES SALAAM

MISCELLANEOUS COMMERCIAL CAUSE NO. 118 OF 2015

(Arising from Commercial Case No. 37 of 2015)

MMG GOLD LIMITED 11 ••••••••••• APPLICANT

VERSUS
HERTZ TANZANIA LIMITED RESPONDENT

25th November, 2015 & 18th February, 2016

RULING

MWAMBEGELE, l.:

This is a ruling in respect of a preliminary objection raised by the respondent

Hertz Tanzania Limited against an application filed by the applicant MMG Gold
Limited for extension of time to file an application for leave to appear and
defend a summary suit. The preliminary objection (henceforth "the PO") has
is composed of the following two points:

1. The affidavit is incurably defective as it contains hearsay evidence by

referring to the communication used while there is "without prejudice"
disclaimer; and
 2. The affidavit is incurably defective as it contains as it contains matters
of law, arguments and conclusions.

The PO was argued before me on 25.11.2015 during which Mr. Themistocles

Rwegasira, learned counsel, appeared for the respondent and Mr. Innocent
Mushi, learned counsel, appeared for the applicant. The oral hearing was
preceded by the learned counsel filing skeleton written argument as dictated
by the provisions of rule 64 of the High Court (Commercial Division)
Procedure Rules, 2012 - GN No. 250 of 2012.

For the PO, Mr. Rwegasira has been very brief but to the point in fronging his
arguments. He argues that para 5 of the supporting affidavit contains
matters of hearsay when it refers to communication used without containing
the "without prejudice disclaimer". The use of this communication to justify
delay amounts to hearsay, he argues.

Mr. Rwegasira also argues that para 7 (a) of the affidavit contains matters of
law when it refers to pecuniary jurisdiction of the court which befitted to be
raise as a PO. Para 7 (b) of the affidavit contains arguments when it refers to
the amount claimed as being unrealistic, he argues. The learned counsel
submits that an affidavit has got to be factual and free from extraneous
matters such as hearsay, arguments, objections, prayers and conclusions.
The learned counsel cites an unreported decision of the Court of Appeal of
Mustapha Raphael Vs East African Gold Mines Ltc/, Civil Application No.
40 of 1998 and Uganda Vs Commissioner of Prisons ex parte Matovu
[1966] EZ 514 to support his argument. The learned counsel supplied
additional authorities through an administrative letter to the Deputy Registrar

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of this court. These include Transport Equipment Ltd Vs Devram
Valambhia, Civil Application No. 18 of 1993, an unreported Full Bench
decision of the Court of Appeal and Leila Jalaludin Haji Jamal VsShaffin
Jalaludin Haji Jamal, Civil Case No 373 of 2001 and Tanganyika Law
Society Vs The Attorney General; unreported decisions of this court.

Along with the skeleton arguments, the learned counsel for the respondent
raised yet another preliminary objection to the effect that the applicant ought
not to have cited the provisions of section 95 of the CPC in support of the
application. He cited the Valambhia case (supra) And Aero Helicopter (T)
Ltd Vs F.N. Jansen [1990J TLR 142 to buttress the point that the inherent
power of the High Court under section 95 of the CPCis exercisable where the
law has made no provision governing the particular matter at hand.

Based on the foregoing, the learned counsel submits for dismissal of the
application with costs.

On the other hand, Mr. Innocent Mushi, the learned counsel for the applicant
argues against the PO that it does not qualify to be a point of preliminary
objection in that it is not a pure point of law because it needs to be proved by
evidence. The learned counsel relies on the oft-cited Mukisa Biscuit
Company Vs West End Distributors Limited [1969J EA 696 as followed in
Shakida Abdul Hassanali Kassim Vs Mahd Mohamed Gulamali Kanji,
Civil Application No. 42 of 1999 (unreported) and the Jamal case (supra) to
reinforce this proposition.

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Alternatively, the learned counsel argues, even if we find there are
paragraphs which offend the law, the remedy will be strike off the offensive
paragraphs and leave the rest of the affidavit intact as was the case in the
Tanganyika Law Society case (supra). Otherwise the learned counsel
admits that a court of law should not act on an affidavit which does not
distinguish between matters stated on information and belief and matters
stated on the deponent's own knowledge as was held in Serikali ya
Mapinduzi Zanzibar (SMZ) Vs Farid Moh'd Abdallah [1998] TLR 355 at
356.

The learned counsel for the respondent has nothing useful to rejoin, except
for conceding that the offensive paragraphs must be struck off and that once
the offensive paragraphs are struck off, there will be nothing left to support
an application for extension of time to file an application to defend the
summary suit.

I propose to start with a complaint over the citation of section 95 of the cpc.
The learned counsel for the respondent is right that this application is only
applicable in situations where there is no other provision of law to cater for
the problem - see: Athar Mujtaba Vs Heena Mujtaba, Miscellaneous Civil
Application No. 425 of 2013 (unreported) and Bunda District Council Vs
Vinai [2000] TLR 49; the decisions of this court and Aero Helicopter (T)
Ltd Vs F. N. Jansen [1990] TLR 142; the decision of the Court of Appeal.
The hallmark of these decisions is that where there is a specific legislation
inherent powers, which are discretionary, should not be invoked. This will be
sufficient on the applicability of the inherent powers of this court. Suffice it to
say, in the present instance, there are applicable provisions of the law to

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cater for the situation and have been cited in the chamber summons along
with section 95 on inherent powers. In the circumstances, the provisions of
section 95 of the CPCought not to have been invoked.

Now back to the present case. I will decide on both remaining points
together. The paragraphs complained of are 5 and 7. They read:

"5. That taking into account the content of

paragraph 3 and 4 herein above the applicant
herein through its finance department was
going on communicating with the respondent
via their advocates to work out financial
differences and settle the matter, the belief
which was relied upon by the applicant and
shadowed the effort to file an application to
appear and defend the stated summary
procedure within the time frame of twenty
one days. Attached herein marked "MMG2"
is a draft copy of the settlement deed from
the respondent's advocates and email
communications for which leave of this
Honourable Court is craved to form part of
this affidavit."

"7. That the stated financial differences stated

under paragraph 5 above which casts a shadow in
settling the suit are as hereunder provided:

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 a. That the actual amount of USD 32,000.00
(United State Dollar, thirty two thousand),
which is equivalent to Tshs. 60,000,000/=
(sixty Million only) which is below the
pecuniary jurisdiction of the High Court
Commercial Division was already been
settled.
b. That the sum of Tshs. 80,000,000/= (Eighty
Million only) claimed by the plaintiff
purporting to be out of defendant's breach of
contract, tortuous injuries due to frustration
in making fallow up of the claimed amount
and inconveniences are not realistic and
within the per view of the summary
procedure suit as provided for under the
law."

I agree with Mr. Rwegasira that the affidavit in support of the application is
not free from defects. The paragraphs complained of offend the law for
presenting the law, arguments or hearsay. Phrases like "the amount is not
realistic" in paragraph 7 (b), "below the pecuniary jurisdiction" in paragraph 7
(a), "above the applicant herein through its finance department was going on
communicating with the respondent via their advocated to work out financial
differences and settle the matter" in paragraph 5, and "are not within the per
view (sic) of summary procedure" in paragraph 7 (b) cannot be said to be not
offensive of the law relating to affidavits. They are legal arguments, matters
of law and/or hearsay which make the affidavit defective.

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This problem is not a virgin territory; it has already been adequately traversed
by the courts; it was dealt with at some length in the celebrated case of
Uganda Vs commissioner of Prisons Ex Parte Matovu, [1966] EA 514; a
case cited to me the learned counsel for the respondent. In that case, like in
the present case, the applicant had filed in court an affidavit in which he set
out in detail the grounds of law upon which he proposed to rely in support of
his application. Sir Udo Udoma, C.J, speaking on behalf of Sheridan and
Jeffreys Jones JJ had this to say:

"The affidavit sworn to by counsel is also

defective. It is clearly bad in law ". as a general
rule of practice and procedure, an affidavit for use
in court, being a substitute for oral evidence,
should only contain statements of facts and
circumstances to which the witness deposes either
of his own personal knowledge or from
information which he believes to be true. Such an
affidavit must not contain an extraneous
matter by way of objection or prayer or
legal argument or conclusion".
[Emphasis added].

The above principle was reiterated by this court (Shangwa, J.) in Peter
Lucas Vs Pili Hussein and Another), Miscellaneous Civil Application No. 33
of 2003 (unreported).

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 In the light of the foregoing case law, and as I have alluded to hereinabove,
the affidavit in support of this application is offensive in some paragraphs for
/
asserting legal arguments. An affidavit for use in court, as was stated in the

Matovu case (supra) being a substitute for oral evidence must, inter alia, not

contain an extraneous matter by way of objection or prayer or legal argument

or conclusion. In the result, the PO by Mr. Rwegasira is sustained. I

therefore proceed to expunge the paragraphs complained of; that is,

paragraphs 5 and 7 are hereby expunged from the affidavit.

In view of the fact that, after expunging paras 5 and 7 of the affidavit, the
remaining paras can still, somehow, support the application, the application
will be heard on another date to be fixed today. This application succeeds to
that extent. Costs will be in the cause.

Order accordingly.

DATED at DAR ES SALAAM this 18th day of February, 2016 .

.,- --
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J. C. M. MWAMBEGELE
JUDGE