Panache Ltd vs Phoenix of (T) Assurance Co. Ltd & Another (Commercial Case No. 67 of 2009) [2024] TZHCComD 139 (27 June 2024)

Key Facts

Issues

• The court addressed whether the verification clause in Mr. Badeleya's witness statement was defective and whether the statement contained impermissible legal arguments or quotations from documents, as per Rules 48(1), 50(1)(d), and 50(1)(f) of the High Court (Commercial Division) Procedure Rules. The plaintiff argued the verification clause lacked necessary details (name, signature, date, place) and that the statement included argumentative content and lengthy quotations from lease agreements, while the defendants contended the statement complied with legal requirements and the CoA's directive for additional evidence.
• The court considered whether paragraphs 9, 11, and 12 of Mr. Badeleya's witness statement violated Rule 50(1)(d) and (f) by repeating lengthy document content or engaging in legal arguments. The plaintiff asserted these paragraphs were argumentative and required the entire statement to be struck out, while the defendants argued the quotations were necessary for identifying the documents and the statement could be cured by expunging the offending sections.

Holdings

• The court sustained the objection against the argumentative and conclusive nature of paragraphs 9, 11, and 12 in the witness statement. It ruled that paragraphs 11 and 12 must be expunged for containing legal arguments and conclusions, while paragraph 9 was acceptable as it merely reported the witness' interpretation of the lease agreement. The remaining statement was adopted by the court after expungement.
• The court overruled the objection regarding the verification clause of Mr. Badeleya's witness statement, finding that the statement complies with rule 50(1)(h) of the High Court (Commercial Division) Procedure Rules by stating the witness' belief in the truthfulness of the facts presented. The verification clause was deemed sufficient as it included the required statement of belief and the location of deposition (Dar es Salaam).

Remedies

• The Court ordered that the hearing should proceed as scheduled, following the resolution of the objections regarding the witness statement. The proceedings will continue with the adopted witness statement after the specified amendments.
• The objection on the verification clause of the witness statement was overruled, as the statement complied with the required provisions under the Rules. The Court determined that the statement met the statutory verification requirements by stating the witness's belief in the truth of the facts presented.
• The Court adopted the witness statement of Mr. Badeleya after expunging paragraphs 11 and 12, which were found to be argumentative. The remaining parts of the statement are now part of the evidence in chief and will be considered in the proceedings.
• The Court ruled that each party shall bear their own costs associated with the proceedings. There was no award of costs to either party, and both are responsible for their respective legal expenses.
• The objection regarding the argumentative nature of paragraphs 11 and 12 was sustained. These paragraphs were expunged from the witness statement as they contained conclusive arguments and opinions, which are not permissible in witness statements. However, the rest of the statement remains valid after this expungement.

Legal Principles

• The Court applied the principle of 'lex specialis derogat lex generalis', holding that specific procedural rules for witness statements under the High Court (Commercial Division) Procedure Rules 2012 (as amended) override general provisions of the Civil Procedure Code. The Court emphasized that witness statements differ from affidavits in verification requirements, noting that cross-examination is mandatory unless excused, whereas affidavits require court sanction for cross-examination.
• The Court addressed the 'Oxygen Principle' (implied discretion to manage cases fairly) to determine whether defective witness statements could be cured through expungement or amendment rather than outright dismissal. It concluded that argumentative paragraphs (e.g., paragraphs 11 and 12) could be removed, leaving the rest of the statement admissible.
• The Court emphasized that witness statements must avoid legal arguments and lengthy quotations from documents (per Rule 50(1)(d) and (f)). It expunged paragraphs containing conclusive legal arguments (e.g., paragraph 9 stating the plaintiff is not the owner) and excessive document references but allowed the remaining statement to stand after corrections.

Precedent Name

• Afriscan Group Ltd v David Joseph Mahende
• R.S. Raghunath v The State of Karnataka
• EFTA Equipment Loans v Armstrong Charles Kiwelo
• Richard Mgwilanga v Paulina
• Nas Hauliers Ltd & Others v Equity Bank (T) Ltd and Another
• Nassoro Ramadham Mangesanga and Another v Raymond Francis Braganza

Cited Statute

• High Court (Commercial Division) Procedure Rules, 2012 (as amended by the High Court (Commercial Division) Procedure (Amendment) Rules, 2019)
• Civil Procedure Code, Cap 33 R.E. 2019 (the CPC)

Judge Name

Passage Text

• In fine, the objection is partly allowed to the extent explained above. For avoidance of doubt, the objection on the verification of the statement is overruled. However, the preliminary opposition against the argumentative paragraphs of statement is sustained. The upholding of one limb of the objection notwithstanding, subject to the specified expungement, the witness statement remains and is hereby adopted by the Court as part of the present witness' testimony/evidence in chief.
• I thus, proceed to expunge paragraphs 11 and 12 of Godfrey Badeleya's witness statement from both the statement and record of this court. However, as for paragraph 9 thereof, I find no problem because the witness is purely reporting what he found in the lease agreement upon reading it.
• Moreover, the law is now settled that paragraphs containing argumentative, conclusive or opinionated depositions should be expunged Jamal S. Mkumba and Another v Attorney General, Civ. Application No. 240/01 Of 2019; Chadha & Company Advocates v Arunaben Chaggan Chhita Mistry & 2 Others, Civ. Application No. 25 of 2013; Anna Makanga v Grace Woiso, Civil Reference No. 2 of 2006; Phantom Modern Transport (1985) Ltd v DT Dobie (TZ) Ltd; Civ. References Nos. 15/2001 and 3/2002 (all unreported).