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IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

CIVIL APPLICATION NO. 24 OF 2011

ARBOGAST C. WARIOBA................................................. APPLICANT

VERSUS
1. NATIONAL INSURANCE CORPORATION (T) LTD 1
2. CONSOLIDATED HOLDING CORPORATION J .... RESPONDENTS

(Appeal from the ruling of the High Court of

Tanzania at Dar es Salaam Commercial Division)

f Kimaro. J. )

dated the 4th day of June, 2004

in
Commercial Case No. 86 of 2003

RULING

22nd February, & 5th March, 2012

MASSATI. J.A.:

By a Notice of Motion filed under Rule 10 of the Tanzania Court

of Appeal Rules 2009, (the Rules) this Court has been moved by the

applicant, principally, for extension of time within which to apply for

leave to appeal to this Court against the decision of the High Court

(Commercial Division) at Dar es Salaam, in Commercial case No. 86

of 2003 (Kimaro, J. (as she then was) dated 4th June, 2004. The first

attempt to obtain leave from the High Court was unsuccessful.

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The application is supported by the affidavit of ARBOGAST C.

WARIOBA, the applicant that contains 17 paragraphs. Both

respondents have filed affidavits in reply to controvert the contents of

the affidavit. Counsel have also dutifully filed their written

submissions in support of their cases. I am indeed indebted to their

industry.

At the hearing of the application Mr. Hamza Byarushengo

learned counsel represented the applicant. Mr. Samson Mbamba, and

Mr. Majura Magafu, learned counsel represented the 1st and 2nd

respondents respectively.

Going by the applicant's affidavit, the applicant's attempted

explanation for the delay in lodging the application was, that it was

due; first; both he and his counsel, Mr. Byarushengo were absent,

when Makaramba J, delivered his ruling on 8th February, 2011, in

which his first application for extension of time and leave to appeal

was dismissed; secondly, that his counsel applied for copies of

proceedings and ruling on 15th February 2011, and the same were

supplied to him on 23rd February 2011, well out of time for filing the

said application in this Court; but thirdly that at all the material time
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until the 6th day of March 2011, the applicant was on a business trip

in Mwanza. Immediately, on return, on the 9th March, 2011, the

present application was filed. Fourthly, the delay in filing the

application was also contributed by the court which had initially

issued improperly dated ruling and drawn order, that led to his first

attempted appeal being struck out. These averments are contained in

paragraphs 5,6,7,8,9,10,11,12 and 13 of the affidavit.

In his submission, Mr. Byarushengo argued that the reasons

shown in the affidavit disclosed sufficient reason for extension of

time. He referred me to the decision of this Court in CRDB (1996)

LTD v GEROGE M. KILINDU Civil Application No. 162 of 2006

(unreported) With the Court's indulgence, he also argued that the

applicant had vigorously pursued his case, and that this Court had

recognized this as another factor in considering whether there are

sufficient reasons for extension of time under Rule 10 of the Court of

Appeal Rules 2009. He referred me to the decision of my learned

sister KILEO, J.A in RUTAGATINA C.L. vs THE ADVOCATES

COMMITTEE AND ANOTHER Civil Application No. 21 of 2011

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(unreported). He therefore prayed that the application be granted

with costs.

As indicated, both respondents opposed the application. The

first respondent, through the affidavit in reply of TED MWAKIPUNA,

just " noted " the contents of paragraphs 1,2,3,4,5,6,7,8,9,10 and 12

of the affidavit; in so far " as the chronology of the case was

concerned " but went on to deny the contents of paragraph 13. On

its part, the 2nd respondent admitted the allegations in paragraphs

1,2,3,7,8 and 9 but traversed the rest of the paragraphs in the

applicant's affidavit.

In his written and oral submission, Mr. Mbamba learned

counsel premised his argument on Rule 45(b) of the Rules which

requires that such an application be filed within 14 days of the date

of the refusal by the High Court, which in this case was on 8/2/2011.

He submitted that the issue before the Court was whether the

applicant gave any sufficient reason to explain his delay in filing this

application up to 9/3/2011 ? His answer was that the applicant's

explanation that he was in Mwanza on his business errands, did not

amount to sufficient legal reason. So, the period between 23/2/2011

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and 9/3/2011 when the proceedings and ruling supplied to him, was

legally not accounted for. He distinguished KILINDU'S and

RUTAGATINA'S cases, as they were decided on their own peculiar

facts, including the issue of illegality of the decision in KILINDU'S

case. With the Court's indulgence, Mr. Mbamba also argued that in

the absence of the advocate's affidavit, there was no explanation for

the delay in collecting the requested copies of the proceedings and

ruling. In the absence of such an account, no case was made out

under Rule 10 of the Rules; and thus prayed for the dismissal of the

application.

Mr. Majura Magafu, learned counsel, addressed the Court next.

He submitted on three issues. The first was, whether, the applicant

had adduced sufficient reason for the grant of extension of time. In

his view, the only reason advanced by the applicant for the delay was

that he was in Mwanza on a business trip. That, he said, was not a

legally sufficient reason. The second issue was, when did the time

start to run against the applicant. He was of the opinion that time

began to run on 8/2/2011 in terms of Rule 45(b) of the Rules. In his

view the applicant ought to have accounted for all the period in
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between up to 9/3/2011 when he filed the application which he

failed. He further submitted on this issue that the delay to apply for

copies of proceedings and rulings up to 15/2/2011, only

demonstrated the applicant's laxity, as it could not be said to be

reasonable. The last issue on which he addressed the Court was

whether the applicant vigorously pursued his case. It was his

considered opinion that he did not, and that this was demonstrated

by his delay in requesting for copies of the essential documents. The

learned counsel referred me to the decisions of GODWIN

NDEWESI AND ANOTHER Versus TANZANIA AUDIT

CORPORATION (1995) TLR. 200 and METAL PRODUCTS

LIMITED versus MINISTER FOR LOADS AND ANOTHER (1989)

TLR 5, for inspiration. After this submission he also prayed that the

application be dismissed with costs.

In the course of the hearing, I drew the attention of all the

learned counsel to the contents of the affidavit filed in support of the

Notice of Motion, particularly paragraphs 5,8,9,13,16 and 17. Both

counsel for the respondents were of the view that those paragraphs

were offensive because mostly, they were based on information

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whose source was not disclosed, while paragraph 17 was

argumentative. Mr. Magafu referred me to the decision of the High

Court of Uganda in the now famous case of UGANDA v

COMMISSIONER OF PRISONS EX PATCE MATOVU (1966) E.A.

514. On his part, Mr. Mbamba, went on to submit, that the affidavit

was so defective that it was not worth supporting the Notice of

Motion and so, should be struck out, along with the application itself.

Alternatively, he urged me to find that the absence of the affidavit by

the advocate who should have explained what happened to the

proceedings, was fatal. It was his view that on the authority of

AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY

GENERAL AND OTHERS (1996) TLR. 273 contrary to the belief

held by Mr. Byarushengo, counsel could take out an affidavit on

behalf of his client.

But Byarushengo, learned counsel was emphatic that the

affidavit was not defective, because all that was sworn to by the

applicant was based on his own knowledge, except those in

paragraphs 12 and 17 which was based on information whose source

was disclosed therein. On whether counsel could take out an

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affidavit, the learned counsel relied on the decision of this Court in

RAMESH RAJPUT v MRS SUWANDA RAJPUT (1988) TLR. 96 that

advocates could not swear affidavits for their clients. He thus asked

me to find that the affidavit was not defective and so decide the

application on merit.

My first task is to determine whether there is a competent

application before me. Although this was not raised by the parties, I

am satisfied that they had adequately addressed me on the issue

which I raised in the course of hearing; which is whether the affidavit

accompanying the Notice of Motion was competent. I felt that this

was important because Rule 49(1) of the Court of Appeal Rules 2009,

requires that every formal application to the Court be supported by

one or more affidavits of the applicant or of some other person,

having knowledge of the facts. And there is also no dispute here that

legally a defective affidavit cannot suDDort a Notice of Motion.

It has been held that an affidavit may be defective in various

ways, but the most denounced one is that an affidavit should not

contain statements based on information whose source is not

disclosed, or extraneous matters by way of objection or prayer or

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legal argument or conclusion (See UGANDA vs COMMISSIONER

OF PRISONS ex parte MATOVU (supra), PHANTOM MODERN

TRANSPORT (1985) LIMITED vs D.T. DOBIE (TANZANIA)

LIMITED Civil References No. 19 of 2001 and No. 3 of 2002

(unreported) STANBIC BANK TANZANIA LIMITED versus

KAGERA SUGAR COMPANY LIMITED Civil Application No. 57 of

2007 (unreported). It is also the law that if the Court finds that the

defects are inconsequential, it can order that the offensive

paragraphs be expunged and proceed with the application if there is

still substance in the affidavit to support the motion. But if there is no

substance left, the application would not stand, although a fresh one

may be filed.

In the present case, the application for extension of time is

supported by a 17 paragraphs affidavit of the applicant. The affidavit

should therefore advance a good cause for extension of time by way

r%

of explaining what caused the delay and account for it. This is what

the facts in the affidavit should disclose and satisfy the Court. That is

the substance and whole purpose of such an application. That being

the case, and since under Rule 45(b) of the Rules the applicant was
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only required to account for the delay from the 8th February 2011 to

9th March 2011 when the application was filed, I think that

paragraphs 11,12,13,14, and 16 were crucial. I will for now not

comment on paragraph 17.

The starting point is paragraph 11 together with its annexure

ACB 6. According to this paragraph and the Annexure, both the

applicant and his counsel were not present when the ruling was

delivered on 8th February, 2011. Yet in paragraph 11 he " personally

knew " that the application proceeded before Makaramba, J. who

dismissed it on the 8th February, 2011. This is nothing but hearsay.

Then in paragraph 13 he confirms that he was still in Mwanza on 23rd

February, 2011 until 6th March 2011. In paragraph 14, the applicant

argues that " failure to institute the application for leave within the

prescribed period was not caused by negligence or his part.........."

Certainly, this is argumentative. And in paragraph 16, the applicant is

positive as if he were present that the court went ahead to dismiss

the case for want of prosecution under Order IX Rule 8 of the Civil

Procedure Code, 1966. This is not only hearsay, because according to

paragraph 15 he was not in Court, but also contained legal

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arguments, when it refers to the provisions of the Civil Procedure

Code, 1966.

Paragraph 17 of the affidavit is heavy with legal arguments and

whether based on the advice of counsel or even if it was taken out in

counsel's affidavit, it is totally unacceptable. (See MATOVU's case

(supra).

In view of the observations above, I think, paragraphs

11,13,14,15,16, and 17 of the affidavit cannot be left to stand. They

have to go. They are accordingly expunged.

Do we then have anything else of substance left in the affidavit

to support the application ? I think not. Paragraph 1 is merely

introductory, Paragraphs, 2, 3,4,5,6,7,8,9 and 10 merely give a

background to the original suit. That history was not necessary under

Rule 45(b) of the Rules. Paragraph 12 merely shows that his counsel

applied for a copy of the ruling and drawn order of the High Court

and that they were supplied to him on 23rd February 2011. This

information in itself is of little consequence, in the absence of an

affidavit to account for the delav. first for applying for a copy of these
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proceedings from the 8th February, 2011 to 15th February, 2011. And

secondly, if paragraph 13 is expunged, there is nothing to account for

the delay between 23rd February 2011 to 9th March 2011 when the

application was filed. This is where, counsel's affidavit would have

been extremely handy.

This takes me to the next point on whether or not counsel

could swear an affidavit. As seen above, counsel have cited decisions

to support their rival legal positions. Having perused the said

decisions, I think both cases are not of direct relevance to the point

in issue. RAJPUT's case said nothing about counsel being able to

take out affidavits. There a counter affidavit by the wife was sworn

by her advocate, but no objection was taken to its admissibility at the

trial Court. The Court of Appeal held:

".....by not objecting to admissibility of the

counter affidavit at the trial court the
appellant....... had waived his right to
object to the admissibility of hearsay
evidence in this appeal."

The Court did not therefore lay down a general rule that

advocates cannot swear affidavits in their clients' cases, but in my

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understanding, such affidavits should not contain hearsay. In

AUGUSTINE MREMA's case, again the High Court said nothing

about whether or not advocates could swear affidavits, but in a way

supported the position in RAJPUT'S case that, whether the deponent

is an advocate or not it was, just like other evidence, subject to

scrutiny.

Having reached the conclusion that the affidavit is incurably

defective I think that it is unnecessary to go into the merits of the

application. The application before me must also go with the wind, as

there is nothing to support it.

The application is therefore struck out with costs.

DATED at DAR ES SALAAM this 27th day of February, 2012

S.A. MASSATI
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

Z.A. MARUMA
DEPUTY REGISTRAR
COURT OF APPEAL