Mohans Ousterbay Drinks Ltd versus British American Tobacco Kenya Limited; Commercial Case No 90 of 2014: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Commercial Court Rules – witness statement – witness statement does not comply with the rules governing affidavit – whether witness statement is affidavit – whether the Court has power to strike out a witness statement which does not comply with Rule 48 or 49.
Held:-
(i) Although there are some similar requirements between affidavits and witness statements, a witness statement is not an affidavit and the rules governing affidavits do not apply to witness statements.
(ii) The Commercial Court Rules do not give power to court to reject or strike out a witness statement which does not comply with Rule 48 and 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.
(iii) Where a witness statement is defective as if a statement is not dated or the place of attestation is not shown, the court has discretion and powers to order a party or a witness to amend his statement of the 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, that is, by using the inherent powers and for the purpose of conducting fair trial the statement of the witness should remain effective unless struck out.
(iv) The Court also has inherent powers and for purpose of conducting fair trial to order a person who has failed to verify a 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.