Attorney General & Others vs Hardrian Benedict Chipeta (Civil Appeal No. 406 of 2023) [2024] TZCA 1035 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MKUYE. J.A.. MWAMPASHI. 3.A. And NGWEMBE, J.A.^ CIVIL APPEAL NO. 406 OF 2023 THE ATTORNEY GENERAL................................................1 st APPELLANT THE TREASURY REGISTRAR............................................2 nd APPELLANT THE PERMANENT SECRETARY MINISTRY OF FINANCE ...... 3 rd APPELLANT VERSUS HARDRIAN BENEDICT CHIPETA........................................RESPONDENT (Appeal from the decision of the High Court of Tanzania (Land Division) at Dares Salaam) (De Mello. J.^ dated the 17th day of February, 2023 in Land Case No. 386 of 2015 JUDGMENT OF THE COURT 30th October & 5th November, 2024 NGWEMBE. JA.: The appellants lost to the respondent before the High Court (Land Division) in Land Case No. 386 of 2015, wherein the respondent was decreed the rightful owner of a piece of land known as L.O. 24030, L.D. number 61068, Kurasini area, Temeke District, Dar es Salaam City with certificate of title number 17359. Also, the respondent was decreed a bona fide purchaser for value of all that piece of land and was awarded general damages, interests and costs arising therefrom. Having been aggrieved by the trial court's judgment (De Mello, J), the appellants preferred this appeal

based on five grounds. For a reason to be disclosed latter on, we do not intend to reproduce them herein. When the appeal was placed before us for hearing, the appellants were represented by Ms. Lucy Kimaryo who teamed up with Mr. Gureni Mapande, both learned State Attorneys, whereas the respondent was represented by Ms. Dora Mallaba, learned advocate. It is noteworthy that, prior to the commencement of the hearing, Ms. Kimaryo moved the Court pursuant to rule 113 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), for the appellant to be granted leave to raise and argue an additional ground of appeal to wit; the trial court erred in law to rely on unsworn evidence of PW1 contrary to section 4 o f the Oaths and Statutory Declarations Act Cap 34 R.E 2019 (the Act). The application was unopposed by Ms. Mallaba and the Court granted it. In the course of hearing, Ms. Kimaryo abandoned the first five grounds of appeal lodged on 28th July, 2023 and proceeded to argue only the new additional ground. She submitted that the respondent's evidence during trial as it appears on page 126 of the record of appeal, was unsworn or unaffirmed contrary to section 4 of the Act. She stressed that PW1 was the sole witness for the plaintiff. Therefore, failure to adduce evidence under oath or affirmation by PW1 renders the whole evidence invalid and inadmissible. It also affected the defence case because the appellants

(defendants) were responding to unsworn evidence of the respondent (plaintiff). She buttressed the argument with the decisions of the Court in Bulyanhulu Gold Mines Limited vs Keneth Robert Fourie (Civil Appeal No. 105 of 2021) [2022] TZCA 460 (22 July2022) and Fortunatus Lwanyantika Masha & Another vs Ciaver Woshi Limited (Civil Appeal No. 144 of 2019) [2022] TZCA 433 (18 July 2022). She thus, implored the Court to strike out the proceedings, judgment and decree of the trial court and urged the Court to invoke its revisional powers under section 4 of the Appellate Jurisdiction Act Cap 141 R.E. 2019 (the AJA) to order retrial of the case before another judge. In response thereto, Ms. Mallaba conceded to the irregularity and added that since the respondent was the sole plaintiff's witness as it appears at pages 126 to 135, then the whole plaintiff's case was fatally irregular which should be nullified. Therefore, she joined hands with the appellants' advocate to implore the Court to invoke its revisional powers under section 4 of AJA and order for a fresh recording of the evidence of both parties. Having heard the concurrent submissions of learned counsels on this ground of appeal, it is plain that the determination of the appeal turns on whether the evidence of the respondent was unsworn, if the answer is in affirmative, the following question is; what is the effect of receipt of

unsworn evidence. To begin with, oath or swearing is defined by Black's Law Dictionary (8th Edition) to mean: "A solemn declarationaccompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect o f an oath is to subject the person to penalties for perjury if the testimony is false" (emphasis is added). As defined above, oath or swearing is a solemn appeal to God in attestation of truth of a statement which has a binding nature to the maker. It may also be known as a calling of Almighty God to witness that the testimony is true. It compels the maker to speak only truth before the court of law for judicial determination. Due to its importance, there is a specific statute dealing with oaths and affirmation prior to recording testimonies before the court of law. The requirement of taking oath or affirmation before recording any testimonies of witness is a statutory requirement in terms of section 4 of the Act which states that: "Subject to any provision to the contrary contained in any written law, an oath shall be made by- fa) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court;

(b) any person acting as interpreter o f questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that, where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating, as the ground o f such objection, either that he has no religious belief or that the making o f an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead o f making an oath and such affirmation shall be o f the same effect as if he had made an oath" The above provision was thoroughly interpreted in various decisions of the Court, but all meet in one conclusion that the evidence taken without swearing in or affirmation cannot survive a slightest move to have it expunged from the record. See: Capital Drilling T. Limited v. Alex Barthazali Kabendera (Civil Appeal No. 370 of 2019) [2022] TZCA 426 (14 July 2022); Bulyahulu Gold Mines Ltd v. Keneth Robert Fourie (supra); and Fortunatus Lwanyantika Masha (supra); and SNV Netherlands Development Organization Tanzania v. Anne Fidelis (Civil Appeal No. 198 of 2019) [2022] TZCA 427 (14 July 2022). In the latter case, the Court posed a general rule of law that: "This Court has repeatedly emphasized the need o f every witness who is competent to take oath or affirmation before the reception o f his or her

evidence in the trial court including the CMA. I f such evidence is received without oath or affirmation > it amounts to no evidence in law and thus it becomes invalid and vitiates the proceedings as it prejudices the parties'case." That, position of law, remain the same a!! along to date. Therefore, in respect of this appeal, it is a glaring irregularity vividly seen in the record of appeal at page 126 of the record of appeal that the sole witness for the plaintiff testified without prior taking oath or affirmation, contrary to section 4 of the Act and the above cited cases. Since the law is clear that witnesses must either be sworn or affirmed before giving evidence before any court of law or tribunal, then doing otherwise is a fatal irregularity. We have quoted the relevant section 4 of the Act which requires mandatorily to administer oath or affirmation in judicial proceedings, otherwise, failure to do so renders the unsworn evidence invalid with no evidential value as it was so decided in the above cited decisions and in the case of Nestory Simchimba v. Republic (Criminal Appeal No. 454 of 2017) [2020] TZCA 155 (1 April 2020). It is now a settled position of the law that taking an oath or affirmation by the witness before testifying in court is a mandatory requirement which if transgressed, vitiates the proceedings. See: Catholic

University of Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase (Civil Appeal No. 257 of 2020) [2020] TZCA 1890 (11 December 2020); Joseph Elisha v. Tanzania Postal Bank (Civil Appeal No. 157 of 2019) [2021] TZCA 518 (24 September 2021) and Iringa International School v. Elizabeth Post (Civil Appeal No. 155 of 2019) [2021] TZCA 496 (20 September 2021). In the former case, which was followed by the subsequent cases, it was held inter alia: "Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties." Being guided by the above quoted provision of law and several decisions of this Court, we find the evidence of the respondent who testified as PW1 during trial deserves to be discarded as the same was recorded without oath. In the circumstances and having discarded that evidence, nothing remains in the record of appeal in respect of the testimony of the respondent. We therefore, agree with the learned State Attorney that even the evidence of the appellants at trial cannot stand because they were stamped in nullity plaintiff's evidence. Consequently, we allow the appeal and nullify all the proceedings and the decision of the trial court. In the event, and for the interest of justice,

we remit the case file to the trial court for the parties to be heard de novo from where the respondent (PW1) commenced his testimony. The retrial shall be heard expeditiously before another trial judge. In the circumstances, we make no order as to costs. DATED at DAR ES SALAAM this 4th day of November, 2024 R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of Ms. Lucy Kimaryo, learned Senior State Attorneys for the appellants and in the absence of the respondent, is hereby certified as a true copy of the original. / JLU DEPUTY REGISTRAR COURT OF APPEAL