East African Cables (T) Ltd versus Spencon Services Ltd; MISC Commercial Application No 61 of 2016: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Affidavit – definition of affidavit
- Affidavit – counter – affidavit does not controvert assertions made in the affidavit- effect.
- Attachment before judgment – whether it can be granted when third party interest would be affected.
Held:-
(i) In law affidavit and / or counter-affidavit (as the case may be) is evidence. It is a voluntary declaration of the facts written down and/or sworn to by the declarant before an officer authorized to administer oaths. Unlike pleadings (plaint and written statement of defence and other pleadings), affidavit and counter – affidavit are prima facie evidence of the facts stated therein.
(ii) When a fact is stated on oath, it has to be controverted on oath and this gives the court an opportunity to weigh which fact is probably true than the other. When the fact sworn or affirmed is not controverted then it is deemed to be admitted.
(iii) When a person swears or makes a sworn declaration of a fact the best way to challenge him/her is to swear a fact which tends to show that what he has sworn to was false. Putting to him to strict proof of the fact without giving your side of the story which you want to be believed amount to admission of the fact. A requirement of strict proof of the facts applies to pleadings in the suit (i.e plaint, written statement of defence e.t.c) and not for affidavit and counter – affidavit which are evidence.
(iv) An order for attachment before judgment should not affect the rights of a third party. However, in law, those rights of a stranger have to be established.