20150508 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 208 OF 2014 ADNAN KITWANA KONDO AND 3 OTHERS ................... APPLICANTS VERSUS NATIONAL HOUSING CORPORATION ......................... RESPONDENT . {Application for Extension of time to file revision from the decision of the High Court of Tanzania At Dar es salaam) {Mgaya, J.) Dated 23 rd day of July, 2014 In Land Case No. 213 of 2014 RULING 21 st April, &15th May, 2015 Mussa, J.A.: This is an application for extension of time within which to mount revisionary proceedings against the decision of the High Court (Mgaya, J.), dated the 23 rd July, 2014 in Land Case No. 215 of 2014. The application is by a Notice of Motion which has been taken out under the provisions of Rules 10, 48 and 4(1) of the Tanzania Court of Appeal Rules, 2009 ("the 1 Rules"). The same is supported by an affidavit sworn by Mr. Thomas Mihayo Sipemba, learned advocate. The application is being resisted through an affidavit in reply sworn by Mr. Aloyce Sekule, a learned Senior Legal Officer of the respondent. In addition, the respondent has mounted a Notice of preliminary points of objections couched thus: - "(a) That the Affidavit in support of the Notice of Motion is incurably defective for being sworn by a person who is incompetent to swear matters stated therein. (b) Alternatively, the Affidavit in support of the Notice of Motion is purely hearsay without disclosing the source of information. (c) That the Applicants lack the requisite locus standi to apply for revision of the proceedings, ruling and order in Land Case No. 213 of 2014. ( d) The application is incompetent for non-Joinger of parties. ✓, 2 -. '\ t ' At the hearing before me, the applicants were represented by Mr. Gasper Nyika, learned Advocate, whereas the respondent had the services of Mr. Martin Matunda, also learned Advocate. To begin with, Mr. Matunda fully adopted the Notice of preliminary points of objection. In elaboration, the learned counsel for the respondent drew my attention to the verification clause of the affidavit in support of the application, whereof the deponent boldly averred that all what was stated in the affidavit was true to the best of his own knowledge as legal counsel for the applicant. Mr. Matunda then contended that the affidavit in support of the application was mostly based on information whose source was not disclosed. In the result, counsel argued, the affidavit sworn by Mr. Sipemba was no more than hearsay stuff and, for that matter, not worth of being a supportive document. That being so, he urged, the Notice of Motion should be struck out on account of being accompanied by an unworthy affidavit. To buttress his contention Mr. Matunda referred to me the unreported decisions of the Court in Civil Application No. 24 of 2011 - 3 '· ' Arbogast Warioba Vs. National Insurance Corporation and Civil Application No. 80 of 2002 - Lalago Cotton Ginnery and Oil Mills Co. Ltd. Vs. The Loans and Advance Realisation Trust. As regards the raised complaint pertaining to the locus standi of the applicants Mr. Matunda submitted that the High Court decree which is sought to be impugned was in respect to plots No. 697,709 and 711 which are not anyhow related to the applicant. To that extent, counsel argued, the applicants have no locus stand to challenge an order to which they have no legal interest. Coming to the last preliminary point of objection, counsel for the respondent submitted that the application falls short for non-joinder of Messrs Alex Masi Sindamiwe and Z.F. Bharimal who were defendants in the trial proceedings In reply, counsel for the applicants had a brief but refined answer: He countered that the raised preliminary point of objection are entirely bereft of merit the more so as in the first place, they do not deserve to be treated as preliminary points of objection. To fortify his position, Mr. Nyika referred to me the unreported decision of the Court in Consolidated Civil Applications Nos. 190 and 206 of 2013 Mechmar · Corporation 4 {Malaysia) Benhard (in liquidation) vs VIP Engineering and Marketing Limited and Three Others. Addressing the first and second limbs of the preliminary points of objection, I propose in the first instance, to fully extract the material averments in the affidavit in support of the Notice of Motion:- "I Thomas Mihayo Sipemba, adult Christian, Tanzanian, resident of Dar es salaam and of Post Office Box Number 72484 Dar es salaam, DO HEREBY AFFIRM and STATE AS FOLLOWS:- 1. That I am an Advocate working with IMMMA Advocates, the firm engaged to represent the Applicants in this matter and therefore I am conversant with the facts of the case and able to depone to this application. 2. That on July 21, 2014 the Resident above filed a suit in the Land Division of the High Court against one Alex Masi Sindamiwe and Z,F, Bharmal and the suit was registered as Land Case No. 213 of 2014. Accompanying the suit was an application for orders seeking inter alia removal of structures and eviction of the Respondents in the said application form Plots No. 697, 709 AND 711 located at Kawe Beach area, Kinondoni Municipality, Dar es salaam. They are now shown to me copies of the Plaint Chambers Summons and Affidavit in Land Case 5 No. 213 of 2014 and are herewith attached collectively marked Annexure Kawe 1 to form part of this Affidavit. 3. That on July 22, 2014 the High Court, Land Division, Dar e salaam, issued an ex-parte order for inter alia eviction of trespassers from Plots No. 697, and 711 to enable clearance of the said Plots. It is now shown to me a copy of the said order and is attached herewith marked Annexure Kawe 2 and shall form part of this Affidavit. 4. As a result of the said execution of the court order the Applicants structures were demolished and possession of the land was taken over by the Respondent on Plots Nos. 629,630 and 632 owned by the Applicants. The Respondent has continued to be in possession of the said land todate. They are now shown to me copies of Plot NO. 629, 630, 631 and 632 and they are attached herewith marked Annexures Kawe 3 and shall form part of this affidavit. 5. That the right of the Applicants over the suit properties were determined without being accorded an opportunity to be heard. 6. That on August 11,2014 IMMMA Advocates on instructions from the Applicants wrote a letter to the Registrar of the High Court of Tanzania 6 {Land Division) seeking the copies of proceedings in Land in Land Case No. 213 of 2014 for purposes of applying for Revision to this Court. It is now shown to me a copy of the letter applying for copies of proceedings and it is attached herewith marked Annexure Kawe 4 and shall form part of this Affidavit. 7. That the proceedings could not be obtained despite numerous follow ups and on Octoberl, 2014 when Land Case No. 213 of 2014 was coming for mention I prayed before the court to ensure that the proceedings are supplied as requested and Hon. Mgaya J, upon the said prayer ordered that the Registrar, without any further delay should see to it that the typed proceedings are supplied. The copies of proceedings were eventually supplied on November 20, 2014. It is now shown to me a copy of the said proceedings and it is attached herewith marked Annexure Kawe S and shall form part of this Affidavit. 8. I depose this Affidavit in support of the Applicant's prayers in the Notice of Motion. VERIFICATION I Thomas Mihayo Sipemba, state that all what is stated above in paragraphs 1,2,3,4,5,6,7, and 8 7 t. above is true to the best of my own knowledge as Legal Counsel for the Applicants. Verified at Dar es Salaam this 2Efh day of November, 2014. The starting point is paragraphs 2,3,4 and 5 which are obviously based on information whose source is not disclosed. In Lalago Cotton Ginnery (supra), the court held thus:- '~n advocate can swear and file an affidavit in proceedings which he appears for his client, but on maters which are in the advocates personal knowledge only. For example, he can swear an affidavit to state that he appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings" Fortunately, in the affidavit accompanying the present application, the deponent appended the proceedings of the High Court according Coram Judice to which he (Mr. Sipemba) was not Coram Judice. As it were, Mr. Sipemba came into picture a good deal later on the 14th August, 2014 when the decision desired to be impugned had long been delivered. What is patently obvious is that the deponent did not disclose how he become seized of what transpired in the proceedings of the High Court. 8 : 1.. ,J And,. yet in the verification clause he• pegged the details on personal knowledge despite not being in attendance during the High Court proceedings. In view of the foregoing, I adjudge the referred paragraphs 2,3, 4 and 5 to be offensive for non discloser of the source of information. To that end, I uphold the first point of preliminary objection on account that the affidavit is defective and falls short of supporting the Notice of Motion,q the more so as the remaining paragraphs are merely introductory or consequential. That will suffice to dispose of the application by striking it out for incompetence with costs to the respondent. Having so found I need not decide this matter more than is necessary for its disposal, hence I will not belabor on the remaining preliminary points of objection. DATED at DAR ES SALAAM this 8th day of May, 2015. K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. REGISTRAR COURT OF APPEAL 9