Zuberi Mussa vs Shimyanga Town Council (Civil Application 100 of 2004) [2007] TZCA 153 (16 March 2007)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAH: LUBUVA, J.A., MROSO. J.A., And RUTAKANGWA, J.A.^ 1 1 CIVIL APPLICATION NO. 100 OF 2004 ZUBERI M USSA ............................................. APPLICANT VERSUS SHINYANGA TOWN COUNCIL..................RESPONDENT 1 1 • • 4 (Application for Review from the Decision of the Court of Appeal of Tanzania at Mwanza) (Kisanqa, 3.A., Lubuva, J.A., Lugakinaira, J.A.) dated the 16th d^y of November, 2001 in Civil Appeal No. 16 of 1999 RULING OF THE COURT 19 February & 16 March, 2007 RUTAKANGWA, 3.A.: Before us is an application for review of the decision of this I Court, hereinafter to be referred to as the Court, dated 16th November, 2001 in Civil Appeal No. 16 of 1999. This application by i 1 « , notice of motion was filed o^ 14 July, 2004 pursuant to the leave granted to the applicant by the Court on 4th July, 2004 when we struck out his earlier application for review. The said notice of

motion is supported by an affidavit sworn by Mr. M. K. Mtaki, learned Counsel for the applicant. When the application was called on for hearing Mr. Muna, learned counsel for the respondent, raised a point of preliminary objection, notice of which had objection reads thus:- earlier been filed. The ground of "That the affidavit (filed in support of the notice of motion is bad in law in that it contains a jurat o|f attestation which is incurably defective.' Submitting briefly and precisely in substantiating his ground of objection Mr. Muna asserted that the (affidavit in support of the notice of motion or the affidavit, is defe ctive in as much as it is not shown in the jurat of attestation the p^ce where the affidavit was made.

According to the learned advocate this omission offended against the I : mandatory provisions of section 8, of the Notaries Public and j Commissioners for Oaths Act, Cap. 12, Revised Laws, Edition 2002, hereafter the Act.

3 Section 8 of the Act reads as follows:- "Every Notary Public ^nd Commissioner for Oath before whom any oath or affidavit is taken or made under th s ordinance shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made" femphaiis isioursl He contended that since the provision is couched in mandatory terms, the Commissioner for Oaths the statutory obligation to state ih the jurat the place where the affidavit was made. Failure to cannot with impunity opt out of comply with this mandatory requirement of the law rendered the affidavit incurably defective, he argued. In support of his submiss on he referred us to some past decisions of the Court on the issue, the most recent being (a) Theobald Kainam v. The General Manager, K.C.U. Civil Application (unreported) and [1990] Ltd - BK No. 3 of 2002 (b) The Registered Trustees of Joy In The Harvest v. Hamza Sungura - Civil Application (unreported). No. 3 of 2003

4 In both applications the notices of motion which were supported by such defective affidavits were held to be incompetent and struck out. Mr. Muna invited us to follow suit and strike out this application with costs. Mr. Mtaki resisted the objection and put up some formidable arguments in defence of his affidavit which patently did not show in i the jurat of attestation at what place it was made, a fact he readily conceded. The anchor of his argument was that the two decisions relied on by Mr. Muna were no longer good law as they have been overruled by the decision of the charge High Court Arusha v. No. 45 of 1998 (unreported). \A the issue that was at stake ini Court in the case The Judge In- N.I.N. Munuo Ng'uni, Civil Appeal ithout addressing us particularly on that case, Mr. Mtaki invited us to accept and adopt the observation of the Court in the Munuo case i (supra) to the effect that:- "... Now, it is trit^ law that procedural irregularity should not vitiate proceedings if f no injustice has been occasioned ... we agree with the respondent chat .rules should not be i used to thwart justiqe. In fact a prominent ii judge in this jurisdiction the late BIRON, 1

said that rules of procedures are handmaids of justice and should not be used to defeat justice" pp. 2-3 of the typed judgement. The Court, went on to obse we thus:- "To clinch it all, the th irteenth Amendment to '■Hr the Constitution has promulgated Article 107A '* 1 which provides, in j sub-article 2 (e), as follows: i: (2) Katika kutoa uam uzi wa m ashauri ya m adai na iin a iikw a kuzinaatia sheria, mahakama zitafjjata kanuni zifuatazo, yaani: (a) ... (b) - (c) ... (d) ... (e) Kutenda haki bila va kufunawa kupita kias\ na m asharti ya k ifundi yanayoweza kukwamisha haki kutendeka.^

6 That can be translated as follows:- (2) In the determina ion of civil and criminal matters according to law, the courts shall have regard to the following principles, that is (a) ... (b) ... (c) ... (d) ... (e) administer to say: constrained unduly by technical requireme preventing ng justice without being its, which are capable of justice from being done" (emphasis is ours) at pp. 3-4. When the attention of Mr. Mtaki was drawn by the Court to the fact that the decision in Munuo imagination have overruled the! these were delivered on 17/07^2003 and 01/03/2005 respectively while the former decision was i' I prevaricated. He urged us then 's case could not by any stretch of ecisions relied on by Mr. Muna, as handed down on 05/05/2002, he to hold the said two decisions were given p e r incuriam and in ujjter disregard of the constitutional

7 provisions. He accordingly urged us to hold that section 8 of the Act should be construed as being directory and not mandatory in nature and then hold that the omission i to article 107B of the Constitution ” ' T the jyrat is an innocuous one and proceed to dismiss the preliminary objection with costs. Mr. Muna rejoined by arguing that article 1( 07A (2) (e) should be read subject We have given due consideration to the thought provoking | submissions by both counsel. W$ have duly read all the cases and I * the constitutional provisions referred to us by the two resourceful learned advocates and we have fp However, without in anyway di$ und them of considerable interest. i regarding the great industry and effort shown by both counsel in their submissions in this matter, we are constrained to observe that we have found the case of Munuo and the two constitutional proviso) determination of the issue before m s. Of course article 107B reads ns to be of little assistance in the in Kiswahili as follows:- "Katika kutekeleza mamlaka ya utoaji haki, mahakama zote zitaku wa huru na zitalazim ika kuzingatia tu m asharti ya Katiba na yale ya sheria za n ch i."

N Rendered in English it would read: "In discharging their judicial functions, all the courts shall be independent and shall be bound only by th^ provisions of the Constitution and the laws of the land". There is, clearly, nothing in this provision which would lend support • ■ t T ' .0 Mr. Muna's proposition that artic e 107A (2) (e) of the Constitution should be read subject to the projiisions of article 107B. This latter provision only guarantees the independence of the judiciary. That is that the judiciary shall be independent of any person or authority in discharging judicial functions. Likewise, we think that Mi^nuo's case which was decided before article 107A (2) (e) featur^ in Hamza Sungura's case (supra* in our Constitution, as observed , did not do away with all rules of procedure in the administration of justice in the country. Article 107A (2) (e) of the Constitution does not i counsel for the applicant, Mr. Mt admitted that much and we think c contemplate that either. Learned d, at the prompting of the Court, i Drrectly so.

9 We wish to observe that the objection in Munuo's case, which was based on rule 87 (2) of the rules, was all the same dismissed. Furthermore, in our decided opir couched that in itself it is both ion, article 107A (2) (e) is so zonclusive and exclusive of any opposite interpretation. A purposve interpretation makes it plain that it should be taken as a guide!) 7TT ne for court action and not as an von clad rule which bars the cqurts from taking cognizance of salutary rules of procedure which I enhance the quality of justice when properly employed help to delivered. It recognizes the importance of such rules in the orderly and predictable administration of justice. The courts are enjoined by it to administer justice .1 according to law only without being unduly constrained by rules of procedure and/or technical requirements. The word 'unduly' here hould only be taken to mean "iy !rf excessively or wrongfully": See (j I I DICTIONARY, at page 1469. Or l| wrongfully or unreasonably when [h law. ore than is right or reasonable; HAMBERS TWENTIETH CENTURY e cannot be said to be acting e is executing the dictates of the

10 That not every procedural (e) was made manifest by the rule is outlawed by article 107A (2) Court in China Henan International I Cooperation Group v. Salvand K.A. Rwegasira, Civil Reference i No. 22 of 2005 (unreported)|.i! The respondent in the reference r challenged its competence on!.the ground that the Court had not i been properly moved becausej:a wrong provision of the rules had been cited. In its ruling darad 21st March, 2006 sustaining the preliminary objection, the Cojjit wrong citation of a provision application is made renders the application incompetent held that "it is now settled that of the law or rule under which the Regarding article 107A (2|) (e), the Court went on to say:- "... In this case, as already indicated, the hi circumstances are:such that we can hardly glean any element Df technicalities involved. The role of rules of (procedure in the administration of jjjstice is fundamental. As ii stated by Collins,; ^l.R. in Re Coles and ; I Ravenshear (1^07) 1 KB 1, rules of i procedure are intended to be that of i handmaids rather pjian mistresses. That is, i their function is to facilitate the administration of justice. Here,! the omission in citing the

11 proper provision of tt reference and worse st wrong and inapplicable e rule relating to a II the error in citing a rule in support of the application is not in oijir view, a technicality falling within the scope 107A (2) (e) of the matter which goes to fi matter as urged by Mr. and purview of Article Constitution. It is a the very root of the ^amugisha As already indicated earlier ^n in this ruling, this is a forma! ; application brought under the pro visions of the rules although the notice of motion is silent on the pa i provided in rule 45 of the rules tha be by notice of motion stating thei •fij further provided in rule 46 (1) as fq "Every formal applicatib, ticular provision. It is specifically all applications to the Court shall grounds of the application. It is lows:- n to the Court shall be supported by one o r 1more affidavits of the applicant or of some otfier person or persons If having personal knowledge of the facts". The function of stating the g common knowledge. It reduces the amount of time to be spent and costs by taking the place of or^j I \ affidavits (counter-affidavits inclusli ounds and supplying affidavits is evidence. On the basis of the e) the rights of the parties can be

12 conclusively determined beyond j any reproach. The important point to be observed here is that the affidavits being contemplated here are those made in strict compliar Act before a Commissioner for recognized in the Constitution in submitted the Commissioners for* i to pick and choose what to includ • ! must duly conform with the reqi plethora of cases, this Court has e with the provisions of s. 8 of the Oaths. Such affidavits are even rticle 151 (1). There is no gainsaying ttiat the jurat of attestation is an essential ingredient of any affiday conspicuously spelt out in s. 8 t. What the jurat should contain is f the Act. As Mr. Muna correctly Daths cannot, with impunity, decide 2 and what to omit in the jurat. He rements of the law or else, as was held by this Court in the two cases relied to by Mr. Muna. In a leld that an affidavit will be held to be incurably defective if in the |jrat of attestation the place where the affidavit was made is not showri. We wish to emphasize here that this is not a mere incantatii law as reflected in the decisions q In D. B. Shapriya and Co B.V., Civil Application No. 53 n of lawyers. This is now settled the Court in the following cases: fipany Ltd. v. Bish International f 2002 (unreported) a ground of

preliminary objection identical wjth the one under scrutiny was 'I raised. The Court was of a firm co the jurat the place where the oath was taken was indispensable, and I ! * this cannot be substituted by the ncime of the place in the advocate's !! ^ rubber stamp. After all such rubber stamp ‘is never part of the jurat 1 1 of attestation. In similar vein thelfourt resolutely so held in the case of Theobald Kainami v. The G.M. K.C.U. (1990) Ltd. (supra). pclusion that the need to show in In Kainami's case (supra); follows:- the Court unambiguously held as in "Unfortunately for the i.< this country do not he applicant the courts in ve the kind of leeway the courts in England have. The requirement , ! jjl i in this country that tnfe place where the oath is made or affidavit taken h^s to be shown in the jurat of attestation is statutory and must 7M ] be complied with" (erj|phasis is ours). 'I 1 I The affidavit which had only the; rubber stamp of the advocate and the place where the affidavit wa: taken missing in the jurat was held to be incurably defective and the'application was struck out.

14 When the Court was faced Registered Trustees of Joy In (supra), it notably observed with an identical problem in The The Harvest v. Hamza Sungura "The issue of omissi i where the jurat was the administration | Court". E'f As the issue was aptly described that the decisions on the legal co 1 1 from such a defect are not only The Court after leading itself to t n to specify the place executed is not new in justice before this held that since the impugned aff the oath was made or taken, it'iwas incurably defective. The notice of motion was struck out. Agai Abdulkadiri v. The Director, No. 2 of 2005 struck out the no Many other similar decisions t t it abound. Indeed the list is inexhE r F more neatly and seriously put thqf o be not new, we shall quickly add sequences for an affidavit suffering consistent but are now legendary, nese legendary decisions ultimately javit did not show the place where this Court and the High Court on 14/03/06 the Court in Ashura ilapia Hotel, MZA Civil Application ce of motion for identical reasons. ustible. We think that it cannot be n by simply asserting with a tone of finality that all these cases constitute a line of recent decisions of

15 Y convincing authority on the iss that the principle laid down irp requirement in this country tha: an oath or affidavit is taken or attestation is a statutory one w dispensable technical requirerji jurisprudence. Every affidavit' . We are unhesitatingly of the view these cases to the effect that the the place where and the date when lade must be shown in the jurat of I ■ jjch must be complied with and not a |;nt is now deeply rooted in our jiherefore, which does not conform i ' » with the statutory requirementsj j>f s. 8 of the Act shall be treated as incurably defective until such tn ie when the courts will be given a statutory leeway, as the courts all article 107A (2) (e) constra compliance with the requiremen We would like to concluc England, to hold otherwise. After s us to administer justice in strict of the law. k this issue with this unavoidable observation. We have reached this conclusion while alive to the i salutary caution sounded abput one hundred years ago that precedents should be used as principles and not as halting d stepping stones in search of new aces. For this reason, we wholly subscribe to the observation by :Benjamin N. Cardozo who said:-

16 "... we must spree no gospel that will chobsing at every s precedents seem to conclusions, at wa law assumes the asjh divorced from the junctures, judges, before them as a I methods is theirs judgements" in THE We are confident that from wj to demonstrate above, we ha’i: conclusion. With the current s time is not yet ripe for makinc already firmly settled. We sf the, gospel that there is I ^ave us from the pain of p. There are times when lead to harsh or bizarre with social needs. The set of scholastic exercises ealities of life. In such I vould do well to keep fng faith that a choice of n the shaping of their GROWTH OF LAW, p.65. would call irrefragable reasoip Such reasons are patently wart ng here. Having so held and obse; i uphold the preliminary objecfti hereby struck out with costs. t we have with profundity attempted not led ourselves to such a bizarre te of both statutory and case law the f a u-turn on the issue as the law is |ll need strong, cogent and what we to convince us to hold otherwise. ed, we find ourselves constrained to ion. The application is accordingly

DATED at MWANZA this 16th |a y of March, 2007.