20080704 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ,.. AT DAR ES SALAAM CIVIL CASE NO. 73 OF 2006 ARCHBISHOP ZACHARY KAKOBE ....... APPLICANT VERSUS JOHN MANYUSI LAURENTI KATONDA ... RESPONDENT Date of final submission - 6/5/2008 Date of Ruling - 4/7/2008 ".•,.RULING MIHAYO, J.: ' . This is a reference from the ruling of the Taxing Master awarding Tsh.30 million to the respondent being instruction fees. The reference has been filed by way of chamber summons made under rule 5 of the Advocates Remuneration and Taxation of Costs Rules (the Rules) Section. 95 of the CPC and "any other enabling • Ir provisions of the Law' whatever this. means. . The applicant ; is ., represented by Miriam Law Chambers and the respon8ent by;· Mr. Moshy learned counsel, who has contested the reference. 1 Rule 5 of the rules has this to say:- "5. (1) Where any party objects to a decision of the Taxing Officer, he may refer his objection for the decision of a judge of the High Court. · · - - - f - - ) · - - - - - ---- - -(2-}-Tbe_objector shall proceed by -------~- way of chamber application, supported by an affidavit to be filed within 21 days after the issue of the certified copy of the officer's decision and to be served upon all other parties who were entitled to appear on such taxation' The procedural law provides that the reference by the objector shall proceed by way of chamber application, supported by an 2 . - affidavits. The affidavit supporting such application must be an affidavit free of any defects. But as it will shortly be apparent the affidavit of Miriam Ismail Majamba is incurably defective because the jurat of. attestation is not dated. This offends the provisions of section 8 of the Notaries Public and Commissioner for Oaths, [ cap 12 R.E. 2002] (the Act) which says:- ·- "Every Notary_f?ublic~nct Commissioner for Oath before whom any Oath or affidavit is taken or made under this Ordinance shall state truly in the Jurat of attestation at what place and on what date the oath or affidavit is taken or made' (emphasis supplied) ( ) It has been long settled in this jurisdiction that such an affidavit, which is not dated does not conform with the law and is therefore defective. 3 This leaves the chamber application without support. It can only be struck out as I hereby do. The respondent shall have his costs. T.B. MIHAYO JUDGE · -r - - - Delivered-.- - Absent for applicant Masha Advocate for respondent JUDGE 4/7/2008 413 Words. 4