IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

COMMERCIAL CASE NO. 90 OF 2014

MOHANS OYSTERBAY DRINKS LIMITED PLAINTIFF

VERSUS

BRITISH AMERICAN TOBACCOKENYA LIMITED DEFENDANT

RULING

Mansoor, J:

Date of Ruling- 07TH MARCH 2016

An objection was taken by Advocate Dilip Kesaria representing

the plaintiff that the witness statement of Sophia Akaka

Mukoba, the witness of the defendant, did not comply with the

mandatory requirements of Rule 48 (1) (a), Rule 48 (2) and

Rule 49 (1) of the High Court (Commercial Division) Procedure

Rules, 2012.

These Rules provides as follows:

Rule 48 (1) A witness statement shall:

(a) be made on oath or affirmation;

Rule 48. (2) The witness statement shall be substantially

in the form prescribed in the Third Schedule of

these Rules.

Rule 49. (1) In any proceedings commenced by plain t,

evidence-in-chief shall be given by a statement

on oath or affirmation.

Rule 48 and Rule 49 of the High Court Commercial Division

Procedure Rules sets out the general rule as to how evidence is

to be given and facts are to be proved. This is that in a suit

commenced by plaint, evidence in chief shall be given in

writing which is by way of a witness statement, and that a

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witness statement must be In a format prescribed by the

Rules.

Counsel Kesaria said SInce the witness statement is a

statement on oath, it must comply with the provisions of

Section 8 of the Notaries Public and Commissioner for Oaths

Act, Cap 12 in that the place at which the oath has been taken

must be stated in the jurat of attestation. He referred me to

the case. of DB Shapriya and Co Ltd vs Bish International

EALR (2002)1 EA 47, in which it was held that "an affidavit is

governed by certain rules and requirements that have to be

followed religiously. The place at which an affidavit is sworn or

oath is taken has to be shown in the jurat. .... an affidavit which

does not show where it was sworn or oath taken is defective."

Counsel Kesaria also referred me to the case of Oryx Oil Co.

Limited vs MC Juro Shipping Agency Limited, Commercial

Case No 263 of 2002, in which it was stated that "the

omission. to state the place where the affidavit was

administered is fatal".

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Ms Fatma Karume, the Counsel for the Defendant countered

the arguments set forth by Counsel Kesaria and the cases

cited. She said that the cases cited and the mandatory

requirements of Section 8 of the Notary Public and

Commissioner for Oaths Act applies to affidavits and not to

witness statements. She said affidavits and witness

statements are not similar documents. She said while a

deponent in the affidavit might not be required to appear in

court for cross examination, a witness who gave a statement is

required by the Rules to appear in court, testify before the

Court that he or she is the one who made the statement, and

then he or she can be cross examined. She said the purpose

and rationale of introducing witness statement in court in lieu

of witnesses' oral examination in chief, it did not intend to

make those statements affidavits. She said the rules of

affidavits 'cannot be made to apply to witness statements. She

said the omission to state the place at which the oath was

administered in a witness statement do not take away the

witness right to give evidence, and that a mistake done by the

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Notary Public cannot impact the party's right to bring

witnesses.

I have carefully considered the submissions of the Counsels

and I would say that, there is no dispute that a witness

statement is a sworn evidence and it is a witness's evidence in

chef, and in the proceedings at the High Court, Commercial

Division evidence in chief are given by way of witness

statement. Evidence may also be given by affidavits if a party.

applies to the court for a direction that evidence be given by

affidavit.

The court may give a direction under rule 50 of the High Court

(Commercial Division) Procedure Rules, that evidence shall be

given by affidavit instead of or in addition to a witness

statement, and this can be done during the Final Pre Trial

Conference, before the trial commences. Rule 50 provides as

follows:

Rule 50 Notwithstanding the provisions of sub rule (1) of

rule 48(1), the Court shall at the Final Pre-trial

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Notary Public cannot impact the party's right to bring

witnesses.

I have carefully considered the submissions of the Counsels

and I would say that, there is no dispute that a witness

statement is a sworn evidence and it is a witness's evidence in

chef, and in the proceedings at the High Court, Commercial

Division evidence in chief are given by way of witness

statement. Evidence may also be given by affidavits if a party.

applies to the court for a direction that evidence be given by

affidavit.

The court may give a direction under rule 50 of the High Court

(Commercial Division) Procedure Rules, that evidence shall be

given by affidavit instead of or in addition to a witness

statement, and this can be done during the Final Pre Trial

Conference, before the trial commences. Rule 50 provides as

follows:

Rule 50 Notwithstanding the provisions of sub rule (1) of

rule 48(1), the Court shall at the Final Pre-trial

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Conference determine the manner in which evidence

is to be given at any trial or hearing by giving

appropriate directions as to:

(a) the issues on which it requires evidence;

(b) the way In which any matter IS to be

proved; and

(c) which witness will be required for cross

examination.

An affidavit is not a witness statement thus the cases referred

to me by Counsel Kesaria are not applicable. A person who

gives evidence by affidavit, affirmation or deposition is called a

"deponent"; and a person who gives evidence by witness

statement is a 'witness'. Thus a witness statement is not an

affidavit, and the rules governing affidavits cannot be made to

apply to witness statements.

I agree however, that, Affidavits and witness statement have

some common features. They both must comply, inter alia,

with the following:

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(a) the date and place made.

(b) they both must be sworn statements of the maker and the

name of the person before whom it is sworn must be given;

On this there is a difference and in the case of a witness

statement, the statement must be in the maker's own words,

while in affidavits information received from third parties, and

statements of beliefs are permitted, provided that the source of

information and belief are given and verified ..

There are strict requirements applying to affidavit as provided

by Order 19 of the Civil Procedure Code, such as, affidavits

must state which of the statements in it are made from the

maker's own knowledge and which are mc:-tters of information

and belief; and the source for any matters of information and

belief must be shown. Whereas in a witness statement, the

statements must be on a makers own knowledge and

statements of belief and information from third parties are not

allowed, since that would amount to hearsay evidence. -

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An affidavit is the testimony of the person who swears it. A

witness statement is the equivalent of the oral evidence which

the maker would, if called, give in evidence.

The jurat of an affidavit is a statement set out at the end of the

document which authenticates the affidavit. It must be signed

by the deponents; it must be completed and signed by the

person before whom the affidavit was sworn whose name and

qualification must be printed beneath his signature; and,

contain the full address of the person before whom the

affidavit was sworn; An affidavit must be sworn before a

person independent of the parties or their representatives.

Only the Commissioner for Oaths may administer oaths and

take affidavits. A witness statement on the other hand, must

include a statement of truth by the intended maker that the

facts stated in the witness statement are true so as to' avoid

verifying a witness statement containing a false statement

without an honest belief in its truth.

This shows that although there are some similar requirements

between affidavits and witness statements, a witness

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statement is not an affidavit and the rules governing affidavits

do not apply to witness statements.

The witness statements have been introduced by the High

Court Commercial Division Procedure Rules, 2012, and the

Format to be used have been given in the Schedule to the

rules. The rules, however, did not give power to court to reject

or strike out a witness statement which does not comply with

Rule 48 or 49 in relation to its form or contents. Since the.

statement is also the evidence in chief the rules of evidence

would apply and the court may refuse to admit it as evidence if

it does not comply with the requirements of the Evidence Act,

such as if the statements contained in the witness statement

are hearsay, the court may refuse to admit the statements as

evidence, etc.

The Rules are also silent as to whether the Court can permit a

witness to use the defective witness statement, such as if a

statement is not dated or where the place of attestation is not

shown or if the court can order an amendment of a defective

witness statement.

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Despite the lacuna in the High Court Commercial Rules, I

believe that the Court has discretion and powers to order a

party or a witness to amend his statement of case at any time

before cross examination of a witness by removing, adding or

substituting any piece of evidence he/she may wish to add

amend or substitute, and if a witness fails to verify his

statement or omits to state a place where it was taken or the

date it was made, I believe that despite the lacuna in the rules

and by jusing the inherent powers of the court and for the

purposes of conducting fair trail the statement of the witness

should remain effective unless struck out; and the court may

direct that it shall not be admissible as evidence.

The court also has inherent powers and for purposes of

conducting fair trail to order a person who has failed to verify

a the statement in accordance with rule 48 (1) (a) and (2) and

Rule 49 to verify the document or properly verify it, without

changing its contents, and refile it in court before the witness

can be called for cross examination. -

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Based on the above, I allow the statement of Sophia Akaka

Mukoba to be amended so as it can be properly verified, and

be filed in court before the next hearing date.

It is so ordered.

DATED at DAR ES SALAAMthis 07th day of MARCH, 2016

~MANSOOR

JUDGE07TH MARCH 2016

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