Samwel Kimaro vs Hidaya Didas (Civil Application No. 20 of 2012) [2013] TZCA 2349 (11 October 2013)

.o C) • IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A., KIMARO, ).A., And JUMA, J.A.) CIVIL APPLICATION NO. 20 OF 2012 SAMWEL KIMARO ........................ APPLICANT VERSUS HIDAYA DIDAS .................................. RESPONDENT (Application to strike out notice of appeal arising from the Judgment of the High Court of Tanzania) (Longway, J.) dated the 5th day of August, 2008 In High Court Land Appeal No. 9 of 2006 RULING 5" August, & 11 " October, 2013 JUMA, iA.: The question whether the name of an attesting officer, is a mandatory requirement under section 8 of the Notaries Public and Commissioners for Oaths Act, Cap 12 (the Act) has anguished my mind ever since we heard the parties on preliminary point of objection. Such was my anguish that at first, I agreed with my. sister Kimaro, J.A. that the name of the Notary Public or Commissioner for Oaths before whom an oath is made must not only show the date and place where attestation took place, but must also indicate the name of the Notary Public or Commissioner for

Oaths. Later, I revisited the scope of the wording of section 8 of the Act and also the provisions of the law governing matters over which courts take judicial notice. My position changed and coincided with the reasoning and conclusion contained in the draft Ruling of my brother, Msoffe, J.A. This Ruling serves to illustrate, albeit briefly, my opinion that the name of an attesting officer is not a mandatory statutory requirement under section 8 of the Act to render the jurat so defective that it can sustain a preliminary' point of objection. Section 8 reads as follows: "Every Notary Public and Commissioner for Qath befOre whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made "(Emphasis is added). It seems to me that the intention of the legislature is clearly to render an affidavit defective if it fails to state in the jurat of attestation, "at what place and on what date the oath or affidavit was taken or made." That is as far as the mandatory language of section 8 extends. The law only demands the signatures of the deponent and the person who in law is authorized to administer the oath or affirmation. This person whom the law 0 2

authorizes is merely referred to as either as an advocate or a magistrate or as any other person specifically mentioned under the Act as a Notary Public or Commissioner for Oaths. If looked at closely, sections 3 and 10 of the Act, identifies any of the following as authorized persons who can administer oath/affirmation- an advocate; or a person entitled to practise as a notary public in England, Scotland, Northern Ireland or the Republic of Ireland; or any person employed by the Government of the United Republic and who, under the provisions of section 3 of the Advocates Act, is entitled to practise as an advocate of the High Court; or the Registrar of the Court of Appeal, the Registrar of the High Court and every Deputy Registrar; or a magistrate; or an Administrative Officer in the service of the Government of the United Republic; etc Sections 3 and 10 do not specifically demand the individual names of the above Notaries Public/Commissioners for Oaths to be part of the jurat. The law under section 8 of the Act in mandatory terms only requires that 3

any of the above-mentioned Notaries Public/Commissioners for Oaths should specify in the jurat "the place and the date the oath or affidavit was taken or made." I would as a result hesitate to impose an extra requirement over and above the place and the date the oath or affidavit was taken or made and take it up as a pure point of law so as to strike out the present application as being defective. For our present purposes, it was a magistrate who was the attesting Notary Public/Commissioner for Oaths; Under section 10 (1) (d) of the Act, a magistrate is an authorized judicial officer vested with powers of a notary public and commissioner for oaths. Just like section 8, the above-cited section 10 (1) (d) does not impose any additional requirement for the name of that magistrate to be identified in the jurat. It seems to me that where, as in present application, the individual name of a Notary Public/Commissioner for Oaths is not a statutory requirement, no pure point of law can arise. It is my further opinion that if there is any doubt about the genuineness of the Magistrate before whom the applicant swore the affidavit, then the matter cannot be disposed of as pure point of law since it would require proof on merit, of the competence of the Magistrate as a Notary Public/Commissioner for Oaths. V 0 4

•_ 1 I - 4.' 0. The duty imposed upon courts by section 59 of the - Evidence Act, Cap. 6, to take judicial notice of "titles, functions and signatures of the persons holding any public office in any part of the United Repub/ic' is yet another reason which makes me hesitate to sustain the preliminary point of objection without going into the merits of the application. Section 58 of the Evidence Act lays down the law that no fact of which a court takes judicial notice need be proved. Section 59 goes further to bind the courts to take judicial notice of specified facts like the accession to office of a magistrate, names, titles, functions and signatures of the persons filling for the time being any 5ublic office, which includes in my opinion, judicial office. It seems to me that where a jurat is signed and stamped by a magistrate, then this Court should take judicial notice of the fact without seeking to find the name of the magistrate concerned. Section 59 states: 59-(1) A court shall take judicial notice of the following facts- I F (d) all seals of all the courts of the United Republic duly established and of notaries public, and all, seals which any person is authorised to use by any written law;

• • law capable of disposing of the application without hearing the parties on merit. I accordingly dismiss it. I make no order with regard to costs. DATED at DAR ES SALAAM this 11th day of October, 2013. I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. AA VA