Seth Japhet vs Nicholaus Mero (MSH. Civil Application No. 457/05 of 2017) [2018] TZCA 942 (9 July 2018)

S • i• m IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA MSH-CIVIL APPLICATION NO. 457/05 OF 2017 SETH JAPI-IEr ......................... ............................. APPLICANT VERSUS N ICHOI_AUS I'IERO ................................................ RESPONDEF4r (Application for extension of time to seek leave to appeal to the Court of Appeal against the decision of the High Court of Tanzania at Moshi) (Mzuna J.) Dated 24 th day of February, 2012 in Land ADDeal No. 12 of 2009 RULING 5th & 12th )uly, 2018 MBAROUK, ).A.: When this application for extension of time was called for hearing, it transpired that, the respondent, had earlier on 31 st August, 2017 filed a notice of preliminary objection to the following effect: That the ruling of 1" August, 2017 and the order extracted from it bear different dates. That the application is time barred as it appears from the heading of the app//cation. That the jurat of attestation is fatally defective. 1

IV In this application, Mr. Peter Shayo did appear and held brief of Mr. Peter M. Jonathan, the applicant's advocate, whereas the respondent appeared in person unrepresented. As per the practice of the Court, I have decided to proceed with the hearing of the point of preliminary objection first before hearing the application. Arguing in support of his preliminary objection, the respondent prayed to adopt his written submission filed earlier on 13th October, 2017. In his written submissions,,L on the first point of objection he submitted that, the ruling in Civil Application No. 1 of 2016 was made on 3rd August, 2017, but the Order extracted there from is bad as it bears two dates not relevant to the ruling. That the Order states in part that, "this application coming on for hearing this 2nd August, 2017...", yet on its bottom it read as, "Dated at Arusha this 7th August, 2017." He submitted that, as the applicant wanted to have his application be determined on the basis of the documents he himself filed in Court, he was duty bound to check to see that they were correct. With regard to the second point of objection, the respondent in his written submission had submitted that the Notice of Motion is titled:- 2

"IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA MSH. (sic) CIVIL APPLICATION NO. 10 OF 2017 IN THE MATTER OF AN INTENDED APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPAL OF TANZANIA" He submitted that, the immediate question is, whether the title as it appears shows the nature of the application before the Court. That naturally, one would think that the application being sought is for an intension to apply for leave to appeal. He added that, application for leave cannot come at this time as it will be badly barred by limitation. Arguing on the third point of objection, the respondent submitted that, the application has an affidavit which has a peculiar jurat of attestation, as it was sworn by Peter M. Jonathan who seem to be both known and identified to the Commissioner for Oaths. He added that, the deponent was identified to the Commissioner for Oaths by Elizabeth Minde, and by one James Elias. He submitted further that, the identification of deponent to Commissioner for Oaths, means that the deponent is not personally known to the Commissioner for Oaths. That, 3

the jurat tells lie as the deponent is a Senior Advocate based in Moshi for a long time and the Commissioner for Oaths is similarly a Senior Advocate in Moshi. He added that, the two havebeen conducting cases together; it is then a cheating to the Court that the two had to be identified to one another. In response to the first point of objection, the applicant submitted in his written submission that, the applicant cannot be blamed for such errors as the Order was extracted by a proper officer of the Court. He submitted further that, the Order is not an essential document for purposes of determining this application, especially as there was no. dispute in the depositions that MSH (sic) Civil Application No. 1 of 2016 was struck out on 3rd August, 2017 and copies of the Ruling and Order supplied on 9th August, 2017 and this application then filed on August, 2017. On the second point of objection, the applicant in his written submission replied that, the Notice of Motion is substantially in conformity to Form A in the First Schedule to the Tanzania Court of Appeal Rules, 2009 and that it otherwise stated unambiguously that it 4

sought for extension of time within which to apply for leave to appeal from the decision of the High Court in Land Appeal No. 12 of 2009. With regard to the third point of objection, the applicant in his written submissions conceded that there was an apparent anomaly in the jurat of attestation part of the affidavit in support of the Notice of Motion. He submitted that, the deponent is an advocate known to the Commissioner for Oaths and that there was no need for identifying the former. That, the anomaly was due to inadvertence on the part of James Elias, an assistant in the office of the deponent in purporting to also identify him to the Commissioner for Oaths. He however submitted that, the anomaly is curable and prayed for the same to be either overlooked or held to be curable by an amendment. To support his prayer, he cited the case of D.T. Dobie (Tanzania) Limited v. Phantom Modern Transport (1985) Limited, Civil Application No. 141 of 2001, (Unreported). He submitted further that, the respondent's own counter affidavit (affidavit in reply) had a similar defect in the jurat of attestation in that, the deponent though well known to the Commissioner for Oaths, was also identified to him by one Janeth Alphonce, and that the document 61,

appeared to have been presented and signed by the Deputy Registrar prior the oath was taken before the Commissioner for Oaths which is tantamount to putting the cart ahead of the horse. In his rejoinder written submission, the respondent submitted that, the applicant had conceded on the third point of objection, that there was an apparent anomaly in the jurat of attestation part of the affidavit in support of the Notice of Motion. That it was negligence on the part of the applicant advocate as he was expected to cure the error before filing the same. On this point of negligence on the part of the advocate, he cited the case of Quality Group Limited v. Peter Masau, Civil Application No. 89 of 2006 (unreported). He added that, as pointed earlier, this seemingly appears to be an objection raised in the course of answering an objection, which is in law not proper and has always been discouraged. To support his argument, he has cited the case of Frank Kibanga v. ACU Ltd, Civil Application No. 24 of 2013 and M/S Bulk Distributors Ltd v. Happiness William Mollel, Civil Application No. 4 of 2008 both (both unreported). I have seriously considered the rival submissions from both sides. The first point of objection that the ruling of 3rd August, 2017 and the

Order extracted there from bear different dates, I think this issue need not detain me much. The said ruling and order has nothing to do with this application. The ruling in Civil Application No. 1 of 2016, which is challenged by the respondent that it bears different date from that on the extracted order, was struck out by this Court on ground that the applicant had failed to state in the Notice of Motion the grounds for application. This was a different application from the present one. This point of objection lacks merit and is hereby overruled. On second point of objection, the applicant stated that the Notice of Motion is substantially in conformity to Form A in the First Schedule to the Court of Appeal Rules, 2009 and that it otherwise stated unambiguously that it sought for extension of time within which to apply for leave to appeal from the decision of the High Court in Land Appeal No. 12 of 2009.1 agree with the applicant that the Notice of Motion in this application is substantially in the conformity to Form A in the First Schedule to the Tanzania Court of Appeal Rules, 2009. The Court may waive certain non-compliance, which are deemed trifling or insignificant and where the waiver causes no prejudice to the opposite party. VA

The Notice of Motion in this matter substantially complied with the requirements under Rule 48 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) despite the defect pointed out. Rule 48 (2) the Rules above does not provide that a notice of motion must strictly conform to Form A in the First Schedule. It is sufficient if the notice is in compliant with most details, even if not completely. See: Said Nassor Zahor & 4 Others v. Nassor Zahor Abdallah El Nabahany & Another, Civil Application No. 278/15 of 2016 (Unreported). The second point of objection is also overruled for lack of merit. With regard to the third point of objection; the respondent contested that, the jurat sworn by Peter M. Jonathan who seem to be both known and identified to the Commissioner for Oaths, was defective. Further that, the identification of deponent to Commissioner for Oaths, means that the deponent is not personally known to the Commissioner for Oaths. That, the jurat tells lie as the deponent is a Senior Advocate based in Moshi for a long time and the Commissioner for Oaths is similarly a Senior Advocate in Moshi. The central point for determination is whether the affidavit not clearly indicate whether the deponent is known to the attesting officer

by himself or was identified to him by another person is fatally defective. Att:estation of affidavits is governed by the Notaries Public and Commissioners for Oaths Act, Cap. 12 R.E. 2002. (the Act). Section 8 of the Act makes it clear that a jurat should show when, where and before what authority (whom) the affidavit was made. The authority who is usually a Notary Public and/or Commissioner for Oaths (See Section 10 of the Oaths and Statutory Declarations Act, Cap. 34 R.E. 2002), has to certify three matters, namely: That the person signing the document did so in his, presence. That the signer appeared before him on the date and at the p/ace indicated thereon/ and That he administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document. (See: The Court decision in the case of Director of Public Prosecutions Vs Dodoli Kapufi and Another, Criminal Application No. 11 of 2008 (unreported).

In the light of the stated position of the law, I am in agreement with the respondent that the applicant's affidavit is defective. The applicant stated that the defect is curable and supported his position by citing the case of D.T. Dobie (Tanzania) Limited v. Phantom Modern Transport (1985) Limited (supra). However, in D.T. Dobie case, (supra), the affidavit was defective in the verification clause and it contained some argumentative paragraphs in which the Court ordered for amendment. In this present application, the issue is different where the jurat suffers the defect that the deponent, though having been personally known to the Commissioner for Oaths, yet was introduced to her by one James Elias. In such a situation, the case of D.T. Dobie (Tanzania) Limited v. Phantom Modern Transport (1985) Limited is distinguishable. As the law stands, the respondent having taken an objection to the competence of the present application, it will be wrong to entertain a prayer for amendment, the effect of which would be to defeat the objection and, of course, Rule 107 of the Rules which permits objections, would be negated. See: MIS Bulk Distributors Ltd v. Happiness William Mollel, (supra). The jurat in this application, failed to clearly show whether the Commissioner for Oaths knew the deponent personally or the deponent 10

before him has been identified to him by a person known to him personally. The applicant was, as correctly submitted by the respondent, negligent, for failing to cure the defect before filing the application. If the applicant had taken few seconds or minutes of his time to read the document carefully he would, no doubt, have noticed the error apparent in the jurat. See: Quality Group Limited v. Peter Masau, (supra). As regards the issue that the applicant when he replied to the respondents third point of objection, raised another objection in relation to the defect in the jurat of attestation of the respondent's affidavit in reply, I agree with the respondent that, one cannot raise objection in the course of answering an objection as it will tantamount to pre-empting the preliminary objection. See: Frank Kibanga v. ACU Ltd, (supra). It is a common understanding therefore that affidavits contain statements or declarations of facts in a written form affirmed or sworn before an officer having authority to administer oath or affirmation. In that respect, therefore, an affidavit must comply with the provisions of section 10 of the Oaths and Statutory Declarations Notaries Act, Cap. 34 R.E. 2002, in that it must be in the form prescribed in the schedule to 11

the Act, which mandatorily requires the Commissioner for Oaths to indicate in the declaration (in the present case, the jurat) either to have known the deponent personally or the deponent before him have been identified to him by a person known to him personally. As section 10 of the Act is couched in mandatory terms, failure to comply with it is fatal. (See: Commissioner General (TRA) v. Panafrican Energy (T) Limited, Civil Application No. 277/20 of 2017 (unreported). In the upshot, I find that the first and second points of preliminary

• objections raised have no merit. But the third one is sustained which renders the application incompetent and the same is hereby struck out with costs. It is so ordered. DATED at ARUSHA this gth day of July, 2018 M.S.MBAROUK )USTICE OF APPEAL that this is a true copy of the original. rr4.\ 'N * 12