Mahafudhi Salim Omary Zagar vs The Registered Trustees of Shadhuliy Liyashurity (Civil Application No. 765/01 of 2023) [2025] TZCA 853 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, 3.A. KENTE 3.A. And MANSOOR. 3-A^ CIVIL APPLICATION NO. 765/01 OF 2023 MAHAFUDHI SALIM OMARY ZAGAR (Administrator of the Estate of the late SALIM OMARY) ...................... APPLICANT VERSUS THE REGISTERED TRUSTEES OF SHADHULIY LIYASHURITY .................................................... RESPONDENT (Application to Strike out a Notice of Appeal arising from the Ruling and Order of the High Court of Tanzania, at Dar es Salaam) (Laltaika, J.) Dated 13th day of December, 2021 in Misc. Civil Application No. 372 of 2021 RULING OF THE COURT 29th July & 12th August, 2025 MANSOOR. J.A.: The applicant, Mahafudhi Salim Omary Zagar, filed a Notice of Motion under Rules 89(2) and 91(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking to strike out the Notice of Appeal on the ground that the respondent failed to take essential steps in instituting the intended appeal in time. The Notice of Motion is supported by the affidavit of Capt. Ibrahim Bendera, learned advocate for the applicant. i

The respondent who has the services of Juma Nassoro of Nassoro & Co. Advocates opposed the application. Mr Nassoro filed an affidavit in reply opposing the application as well as a notice of preliminary objection. In the notice of preliminary objection, the counsel objects the competence of the application, specifically asserting that the application is bad in law for having been supported by the affidavit of the advocate who has no instructions to take the affidavit on behalf of the applicant. Submitting in support of the preliminary objection, Mr Nassoro argues that while Rule 49(1) of the Rules allows an affidavit to be sworn by a person with knowledge of the facts, in the present matter the advocate's affidavit did not state explicitly if Capt. Bendera, the advocate of the applicant was authorized by the applicant to take the affidavit on his behalf. To buttress his argument, Mr Nassoro referred to the case of Mohamed Abdillah Nur & Others vs Hamad Masauni & Others (Civil Application 436 of 2022) [2022] TZCA 546 in which we stated that such authorization must be expressly reflected in the affidavit. In response, Capt. Bendera, stated that there is no merit in the preliminary objection. He submitted that his affidavit was competent 2

because he had deponed on matters that were within his personal knowledge thus in total compliance with Rule 49 (1) of the Rules. He contended that under Rule 49 (1) of the Rules an affidavit can be sworn by the applicant or some other persons or persons having knowledge of the facts. He further distinguished the case of Mohamed Abdillah Nur (supra) by stating that in that case, the deponent of the affidavit was not given the instructions by all the applicants, whereas in the present matter, he is an advocate with full instructions to represent the applicant, thus there is no requirement under the law to expressly state the authorisation in the affidavit. He emphasized that he has full knowledge of the facts of the matter as he represented the applicant in the High Court. Having considered the rival arguments of the counsel and the cited authority, the core of the objection rests on the question of whether there is a legal requirement to give a statement of authorisation in the affidavit when an advocate is deponing on statement of facts within his own knowledge, and whether failure to state in the affidavit the express authorization of an advocate by his client is fatal. 3

Firstly, both counsel are in agreement on the position of the law stipulated under Rule 49 (1) of the Rules, that, an affidavit in support of an application in Court can be taken by the applicant himself or some other person or persons having knowledge of the facts, thus it was in accordance with the Rules for an advocate to take an affidavit in support of an application as long as he has knowledge of the facts deponed in the affidavit. Rule 49 (1) of the Rules provides: 49.-(1) Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts. Under the above rule, an advocate is permitted and can swear an affidavit if it relates to facts he personally knows, such as their involvement in previous court proceedings. It is unfortunate that Mr. Nassoro who challenged the competence of the application or rather the affidavit in support of the application did not state which legal procedures and practice have been contravened so as the objection could qualify to be treated as a pure point of law for an earlier determination. In Mathias Ndyuki & 15 Others Vs Attorney General, Civil Application No. 144 of 2015 CAT at DSM (unreported),

we stated that for an objection to qualify to be treated as a preliminary objection, it has to be on pure point of law and the objector is required to show that a certain provision of a certain legislation has been violated. When an objection requires scrutinization of facts or evidence, it fails to be on a point of law, thus it is to be determined in the course of hearing as parties would be required to adduce evidence to support it or rebut it. This also is according to the principles laid down in the famous case of Mukisa Biscuits Co. Ltd V. West End Distributors Ltd [1969] EA 696. In the present matter, the issue whether there was any authorisation given to Capt. Bendera by his client to represent him or take up the affidavit in support of the application is not a matter of law, but is a fact which requires proof from Capt. Bendera's client to verify that indeed he has instructed and authorised Capt. Bendera to represent him as well as to take the affidavit in support of the application. In any case, the affidavit was on matters within his personal knowledge, and falls under the part of "some other person or persons having knowledge o f the facts" in Rule 49 (1) of the Rules. Capt. Bendera was swearing on his own behalf as he is that another person having knowledge of the facts in support of the application. 5

We, however agree that for facts outside of the advocate's direct knowledge, the affidavit should ideally be sworn by the client. An affidavit is simply a statement of facts of one's personal knowledge. If the deponent is swearing on facts which are not of his own knowledge, he needs to state in the verification clause the source of the information. There is no requirement to state in the affidavit whether the deponent is authorised or instructed to state the facts if the facts he deponed are of his own knowledge. Capt. Bendera was stating the facts of his own knowledge and this is permitted under Rule 49 (1) of the Rules. It is totally a different case when the advocate is swearing on facts which are not within his knowledge as this is when he will need firstly to disclose in the affidavit that he was authorised or instructed by the client to state those facts, he will also be required to state in the verification clause the source of the information he had deponed on behalf of his client. Definitely, the principles in Abdi Nurr case would not fit in the present situation. We also agree in principle that an affidavit, must include a statement of authorization if the deponent is not the party directly involved in the case to assure the court that the deponent has the legal 6

standing to make the statement on behalf of the party. In this case however, the party who made the affidavit is an advocate of the applicant and has stated clearly in the first paragraph of the affidavit that he is the advocate representing the applicant in the matter. There is no specific wording of the authorization statement prescribed under the law. The statement of authorization may vary depending on the nature of the case. When an advocate says he is representing a party, there should be no doubt about it unless the applicant himself negates that fact. Representation by an advocate entails many things including swearing affidavits and signing pleadings. The Court would not need to know in detail the extent of an advocate instructions given by the client unless that in itself is an issue. In any case, if the advocate is taking up the affidavit on behalf of his client thus stating the facts not within his knowledge, definitely, there would have been a need to expressly state in the affidavit that he was authorised by the client to state those facts, also, he would have been required under the principles governing affidavits to state in the verification clause the source of the information. We have stated in Jamal S. Nkumba & Another V. Attorney General, Civil Application No. 240 of 2019 (CAT) (unreported), that failure to state the source of

information in the verification clause of an affidavit does not render the application incompetent as the court has the discretion to order amendment of the affidavit. Based on the above discussion, we hold that since Capt. Bendera took an affidavit on matters of his own knowledge, there is no requirement to give a statement of authorisation in the affidavit, and that a statement that he is an advocate representing the applicant, suffices to show his legal standing in the matter. Consequently, the objection raised is overruled, with costs. DATED at DAR ES SALAAM this 11th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Ruling delivered this 12th day of August, 2025, in the presence Capt. Ibrahim M. Bendera, learned counsel for the applicant who is also holding brief for Mr. Juma Nassoro, learned counsel for the respondent,