Sandra Weiler (Executor of Elifadhili Wilson Msuya) vs Lightness Mlay (Civil Application No. 499/05 of 2024) [2024] TZCA 1074 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI CORAM: MWARI3A, J.A., KAIRO, J.A. And FELESHI. J.A. CIVIL APPLICATION NO. 499/05 OF 2024 SANDRA WEILER (Executor of Elifadhili Wilson Msuya)............,.............*...... .... . APPLICANT VERSUS LIGHTNESS MLAY ................. . ................ .............. ....... ....RESPONDENT (Application for striking out a Notice of Appeal from the decision of the High Court of Tanzania at Moshi Registry) fTwaib, J.) dated the 11th December, 2019 in Misc. Civil Application No.5 of 2019 RULING OF THE COURT 5th & 8th November, 2024 FELESHLJ.A.: This ruling is in respect of a preliminary objection raised by the respondent on the competence of the applicant's application basically alluding that the Notice of Motion is accompanied by a fatally defective affidavit.

The application at issue was filed before this Court by way of a notice of motion lodged on 15th April, 2024 under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for an order to strike out a notice of appeal lodged by the respondent on 16/12/2019. The notice of appeal is against the decision of the High Court of Tanzania at Moshi, in Misc Application No. 5 of 2019 issued in favour of the applicant. The impugned affidavit was deposed on 27th March, 2024 where the applicant deponed that, apart from lodging the notice of appeal on 16th December, 2019 and writing the Registrar on 17th December, 2019 requesting for copies of the certified ruling, drawn order and proceedings, the respondent from there has never taken essential steps to institute the intended appeal. The antecedent facts leading to the application are that: the applicant filed Misc. Application No. 5 of 2019 in the High Court of Tanzania at Moshi for resealing a WILL left by one ELIFADHILI WILSON MSUYA in accordance with the requirements of the Probate and Administration of Estates Act, Chapter 352 and the Rules

thereto. The application was objected by the respondent on some reasons including that the WILL was invalid as it missed some ingredients like not showing the place of attestation and that the name in the property, the subject of the execution was different from the name in the alleged probate. The objection was on 11th December, 2019 found wanting and the application was granted. As aforesaid, on 16th and 17th December 2019 respectively, the respondent filed his notice of appeal to the Court and requested for court documents. It is uncontested that the said notice and letter of request were duly served and received by the applicant's advocate on 9th January 2020. As the application is yet to be determined, we shall not delve into details or unnecessarily touch averments of the impugned founding affidavit which are not relevant to the points of law under determination. Responding to the application, the respondent opposed it through an affidavit in reply sworn by the respondent herself and also raised preliminary objection on four points as follows:

1. That\ the affid avit is fataiiy defective as the advocate deposing has never represented the application in court proceedings.
2. That the affid avit in support o f the Application is fatally defective for not disclosing source o f inform ation.
3. That the affid avit is fatally defective fo r want o f proper verification clause.
4. That the affid avit is fatally defective for containing lie s and untruth as the said ELIFADHILI WISON MSUYA, did not die in Canada and neither did he wrote a will. At the hearing, Ms Elizabeth Maro Minde and Mr. Elikunda George Kipoko, learned counsel appeared and represented the applicant and respondent respectively. Submitting in support of the preliminary objection, Mr. Kipoko argued ail limbs in seriatim , In the first limb, while relying on the case of Tanzania Breweries Ltd vs. Harman Bildad Minja (Civil Application No. 11 of 2019) [2020] TZCA 63 (TanzLii) in which we cited the case of Lalago Cotton Ginnery and Oil Company Ltd vs The Loan and Advances Realization Trust (LART), Civil Application No. 80 of 2002 (unreported), the learned counsel

forcefully argued that an advocate can only swear and file an affidavit in proceedings in which he appeared or represented his client. To that effect, Mr. Kipoko referred the Court to page 13 where the Court quoted an excerpt from the case of Lalago Cotton Ginnery and Oil Company Ltd (supra) stating that: "... an advocate can sw ear and file an affid avit in proceedings in which he appears for his clien t but on m atters which are within his personal knowledge. ...These are the only lim its which an advocate can make an affidavit in proceedings on behalf o f his client." To him, since Ms. Minde did not state in her affidavit that she had appeared or represented the applicant in the proceedings then her affidavit is fatally defective and renders the application incompetent. With regards to the 2n d limb of preliminary objection, Mr. Kipoko vehemently argued that the applicant's affidavit is fatally defective for its verification clause's failure to disclose a source of information. According to him, the sweeping statement in the

verification clause that "the contents of paragraphs 2, 3, 4, 5, 6 and 7 are upon official records in Court" is neither specific nor categorical but, vague. He was thus insistent that the verification clause is not self-explanatory, it requires further clarification the deficiency which cannot be addressed now as there is no room of adducing other evidence to clarify in redress. In addition, he argued that the other statement in the verification clause that paragraphs 1, 8 and 9 are upon the deponent's knowledge of laws is also vague. He reasoned that since the deponent was swearing an affidavit for another person then her knowledge of law and procedure does not relate with the applicant whom she represents. As to the 3rd limb of preliminary objection/ Mr. Kipoko forcefully submitted that the affidavit is fatally defective for containing a defective verification clause that did not cover paragraphs 10 and 11 of the affidavit. To him, since the effect of failure to verify a certain paragraph, has attendant remedy of expunging it, it means expunging the two unverified paragraphs 10 and 11 which are the heart of the instant application, renders the application incompetent.

Regarding the 4th limb of the preliminary objection, the learned counsel argued that the affidavit is fatally defective for containing untrue statements and lies. Drawing the Court's attention to paragraphs 2 and 4 of the applicant's affidavit where the deponent referred to names EHfadhifi W ilson Msuya and ElifadhiH Msuya respectively, Mr. Kipoko contended that the contents in the two paragraphs amount to lies for being inconsistent in referring to two different persons as if he is one and the same. To him, statements in an affidavit being evidence, make any variance or inconsistency capable of rendering it defective. In summing up therefore, the counsel was insistent that the application is incompetent for being supported by a defective affidavit and should be struck out with costs. In response, Ms. Minde resisted the preliminary objection. With the 1st limb of the objection, she argued that the argument by the counsel for the respondent is misconceived because it is not the stance of the law that an advocate can swear affidavit only when he appeared or represented a person in the proceedings. To her, what

matters is for the deponent advocate to swear if he/she have own knowledge or disclose the source of information of which she did. The learned counsel distinguished the case of Tanzania Breweries Ltd (supra) cited by the respondent's counsel on the ground that the facts and circumstance in that case are different from the present application. On the 2n d limb of the objection, Ms. Minde was brief and straight that her affidavit disclosed the source of information that the contents in the impugned paragraphs are mainly court records which are not also disputed by the counsel. She added that, even if Mr. Kipoko had disputed them that would require evidence in proof. On paragraphs 1, 8 and 9 she argued that being advocate she truly knows law and procedure hence the verification clause is flawless. Regarding the 3rd limb of the objection, Ms. Minde briefly submitted that even if paragraphs 10 and 11 of the founding affidavit will be expunged from the affidavit still paragraphs 8 and 9 constitute the basis of the application. As to the 4th limb, she contended that the complained of contents in paragraphs 2 and 4

are matters of facts which do not constitute points of law to be raised as a preliminary objection. In the end, the learned counsel implored the Court to dismiss the preliminary objection and continue with hearing of the application on merit. In his rejoinder submissions, Mr. Kipoko generally reiterated his submission in chief and finally implored the Court to strike out the application with costs for being supported by a defective affidavit. We have profoundly considered the preliminary objection, the arguments by the counsel for the parties and the law. We will consider the 1st and 2n d limbs together. As aforesaid, they relate to an advocate swearing affidavit on behalf of a person when that advocate represented or appeared for him in the proceedings, and the disclosure of the source of information in affidavit and the extent to which the deponent advocate's knowledge can apply. It is the general rule of practice and procedure that an affidavit for use in court is a substitute for oral evidence and that such affidavit must be confined to such statements as the deponent

is able of his own knowledge to prove where in certain cases may contain statements of information and belief with grounds thereon. That where an averment in the affidavit is not based on personal knowledge, the source of information should be clearly disclosed. - See ABSA Bank Tanzania Limited and Another v. Hjodis Fammestad, Civil Application No. 695/16 of 2022 and Jackson Sifael Mtares & Others vs The Director of Public Prosecutions (Criminal Appeal No. 180 of 2019) [2021] TZCA 612 (28 October 2021). In view of the above, we find ourselves contented with Ms. Minde's submission that her statement in the verification clause that she obtained some facts/contents from official record in court and others upon her own knowledge of law and procedure is within the general rule of practice and procedure recapitulated above. They present factual matters which can only be controverted by evidence by the opposing party within the purview of the decision in Mukisa Biscuit Manufacturing Co, Ltd. v. Western Limited (1969) EA 697 where the Court underscored that:

"...A prelim inary objection is in the nature o f what used to be a demurrer. I t ra ise s a p u re p o in t o f la w w h ich is a rg u e d on th e assu m p tio n th a t a ii th e fa c ts p le a d e d b y th e o th e r s id e a re co rre ct. I t ca n n o t b e ra ise d i f a n y fa c t h a s to be a sce rta in e d or if what is sought is the exercise o f ju d icia l discretion.,.." [Emphasis added]. Furthermore, our thorough reading of our decision in Tanzania Breweries Ltd (supra) cited by Mr. Kipoko did not make us inclined to accept his 1st limb of preliminary objection because we found, as correctly submitted by Ms. Minde, that case is distinguishable. We think, had Mr. Kipoko truthfully led us to page 14 of that decision, perhaps we could have tried to find out whether Ms. Minde's reasoning on that case was misconceived. At page 14 the Court had stated: "In the m atter a t hand,, the learned counsel fo r the applicant deposed on internal affairs o f its client which affairs are only within the knowledge o f the principal officer o f the applicant and not within the advocate's personal knowledge.

...internal affair ought to have been supported by an affid avit o f the principal o f the ap p lican t" From the above, we need no invocation of any interpretation principle to understand that, as correctly argued by advocate Minde, the case cited had different circumstances from the present one thus, distinguishable. And that, what the respondent's counsel is pressing for in regard to paragraphs 1,2,3,4,5,6, 7, 8 and 9 of the affidavit, will in our view, require evidence in proof which cannot be undertaken at the instant juncture. The 1st and 2n d limbs of preliminary objection are dismissed. Regarding the 3rd limb, in effect, we find it uncontested that paragraphs 10 and 11 in the affidavit supporting the notice of motion are not part of the verification clause; We agree with the counsel for the parties that a court can expunge out deficient paragraphs. We accede to this correct position of the law, and we thus expunge paragraphs 10 and 11 from the affidavit. - See for instance, the case of Phanton Mordern Transport (1985)

Limited v. D.T, Dobie (Tanzania) Limited, Civil Reference No. 15 of 2002 where the Court observed that "It seem s to us that where defect in an affidavit are inconsequential, those offensive paragraphs can be expunged or overlooked, leaving the substantive parts o f it intact so that the court can proceed to act on it If, however, substantive parts or an affid avit are defective, it cannot be am ended in the sense o f striking o ff the offensive parts and substituting thereof correct averm ents in the sam e affidavit/ ' In view of the above, whereas the respondent's counsel strongly argued that paragraphs 10 and 11 are substantive parts of the affidavit which if expunged out will render the applicant's affidavit unmaintainable, Ms. Minde on the other hand passionately contended that the remaining paragraphs still provide strong legal basis for the application. On our part, we have keenly examined the impugned paragraphs against the remaining ones and we can, with certainty ,conclude that expunging paragraphs 10 and 11 does not

affect the substantive part of the affidavit. The 3rd limb of preliminary objection is thus rejected. About the 4th limb of the objection. Counsel for the respondent contends that the affidavit is fatally defective for containing untruthful statement and lies in paragraphs 2 and 4. On the other hand, Ms. Minde holds the view that the complaint is based on factual matters which do not constitute a point of preliminary objection for want of evidence. On our part, we know the law Is settled that untruth affidavit cannot be relied and acted upon to support the application. See Lilian Richard vs Idd Harnis (Civil Application No 27208 of 2021) 2024 TZCA 549 (12 July 2024) and Heritage Insurance Company Ltd v. Sabians Mchau and 2 Others (Civil Application No.284 of 2019) [2021] TZCA 523 (27 September 2021, TANZLII). However, in the matter at hand, the question whether we are well placed to resolve the complained of untruthful averments in paragraphs 2 and 4 of the founding affidavit takes us back to the decision in Mukisa Biscuit (supra) that a preliminary objection on 14

point of law should be such of disposing of the suit without proof by facts or evidence. Time without number, we have insisted this in our decisions including that in Karata Ernest and Others vs Attorney General, Civil Revision No. 10 of 2010 (unreported) that: "At the outset we showed that it is trite la w th a t a p o in t o f p re lim in a ry o b je ctio n ca n n o t b e ra is e d i f a n y fa c t h a s to b e a sce rta in e d in th e co u rse o f d e cid in g it It only "consists o f a point o f law which has been pleaded, or which arises by clear im plication out o f the pleadings/ ' Obvious exam ples Include: objection to the jurisdiction o f the court; a plea o f lim itation; ... where an appeal is lodged when there is no right o f appeal; where an appeal is instituted w ithout a valid notice o f appeal or without leave o r a certificate where one is statutoriiy required; where the appeal is supported by a patently incurably defective copy o f the decree appealed from ; etc. A ll these are clear pure points o f law ." [Emphasis added].

Similarly, in Soitsambu Village Council vs. Tanzania Breweries Limited & Another, Civil Appeal No. 105 of 2011 (unreported) we underscored that: "A prelim inary objection shouid be free from facts calling fo r p ro o f or requiring evidence to be adduced fo r its verification. When a court needs to investigate facts, such as issue cannot be raised as a prelim inary objection on a point o f law . The court m ust therefore in sist on the adoption o f the proper procedure for entertaining applications fo r prelim inary objection. I t w ill tre a t a p re lim in a ry o b je ctio n o n ly th o se p o in ts th a t a re p u re la w , u n sta in e d b y fa c ts o r evid en ce , e sp e c ia lly d isp u te d p o in t o f fa c t o r e vid e n ce . The o b je cto r sh o u ld n o t co n d escen d to th e a ffid a v its o r o th e r d ocu m en ts accom pan yin g th e p le a d in g s to su p p o rt th e o b je ctio n su ch a s e x h ib its ." [Emphasis added]. In view of the foregoing, we are contented that the complained of variance on the names E lifad h ili W ilson Msuya and Elifadhiii Msuya and any associated untruthful averments in the

deponent's affidavit do not merit the 4th limb of preliminary objection which we find is not a pure point of law. We, therefore, reject the same. In the end, we dismiss the entire preliminary objection with costs. DATED at MOSHI this 07th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Ruling delivered this 8th day of November, 2024 in the presence of Ms. Elizabeth Minde, learned counsel for the Applicant also holding brief for Mr. Elikunda Kipoko, learned counsel for the Respc ‘ 1 ‘ of the original.