Margovind Savani v. Juthalal Velji Ltd., Civ. Case 25-D-69, 14/5/69, Saidi J.

Margovind Savani v. Juthalal Velji Ltd., Civ. Case 25-D-69, 14/5/69, Saidi J.

A summary suit on a foreign bill of exchange was filed by the plaintiffs. The defendants a company with limited liability filed an application under Order 35 rule 3 of the Civil Procedure Code, 1966, for unconditional leave to appear and defend the suit. Their application was supported by an affidavit sworn by one of their directors. It was contended on behalf of the plaintiffs, by way of a prelim nation objection, that the affidavit in support of the application was incompetent and defective and that the application could not be granted on the strength of it. On the hearing date the defendant came with a fresh affidavit sworn by the same deponent and verbally applied for leave to amend, substitute or re-swear the original affidavit.

            Held: (1) “The application is in substance one for amendment ……… The courts are normally disposed to allow amendments of pleadings to enable parties to frame their cases properly for a decision.” (2) “It was definitely a mistake to draw and swear an affidavit as a statutory declaration. I do not think that the Oaths (Judicial Proceedings) and Statutory Declarations Act is meant to apply to affidavits despite the fact that there is no Tanzanian Ordinance or Act governing the procedure of drawing and swearing affidavits. Both affidavits and statutory declarations are written statements solemnly made on oath as true facts on the knowledge, information and belief of the deponent or declaring. In affidavits must distinguish facts that are true to his knowledge from those that he thinks or believes are true to his information and belief and in the later group of facts he must also disclose the sources of his information as well as his grounds of belief. This however, is not an essential requirement of a statutory declaration”. (3) “I do not think that it could be maintained that this Court has not the power to order the deponent of the affidavits to give oral testimony on oath in amplification of or in support of either or both of his affidavits, and if this reasoning is correct it would seem logical and fair that the Court can regard the supplementary affidavit.” (4) “The application of the defendants to amend their affidavit should be granted subject to the payment of the costs of the other side up to date. If a party can amend his pleading by leave of court so as to be able to correct errors by omission or commission there is no reason why he should not be allowed to amend his affidavit by correction of errors or by supplementing what has been omitted in it. Leave to amend granted.