20110727 TZHC Tnga

V ·,, I ' IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATTANGA LAND CASE REVISION N0.2 OF 2011 (From th~ Decision of the District Land and Housing Tribunal of Tanga District atTanga In Land Case/ Land Applict1tio11 No.171 O0-of 2009) ,ARIF M.AWJI. ........................................... APPLICANJ VERSUS PRADEEP KAMANUJ (As administrator of the estate of the late JAGJID KAUR NIRMAL SINGH ••• , ••• ,111,, • ••••••••••.• , . . . . . . . . . . . . . . . ·-. "· RE,SP.or~ DEf\lT . RULING Date of last order: 22/07/2011 Date of ruling 29/07/2011 Mussa, J; Tl1is matter originates from Application No. 171 of 2009 instituted in the Tan~~a district land and housing tribunal. In those proceedings, the respondent heI,ein successfully sued the applicant herein for vacant possession of certain premises situate at . Bombo area, within Tanga city. The applicant was aggrieved; whereupon, he preferred Land Appeai No.21 OF 2011 which is still pending in tt1is court. In the meantime on the 1ih July, 2011; tl1e trial Tribunal 1 • issued -an eviction or·der against tl1e applicant through its broker, Jupite1· Action Mart. In the result; so it is alleged, the applicant was forcefully ejected from the premises on July 19 th 2011. Thus, it is against the foregoing backdrop that this application was mounted July 20 th 2011. · the same is, obviously, a desperate effort thrnugh which the applicant seeks to move this court, first, to revise the eviction 01·der . an o; .,econ o to issue an 0Ld_e.Lfrn::_Jbe_1JJa.i.nt-el'ls-t:iG-e-Gf---t-Re-st~attJs-ci·t1e-pendlng-t~e · determination of the sub-judice appeal. The application is by chamber summons taken out under toe provisions of secti9n 41 arid 43 (1) (bO of the Land Disputes Courts ~ct, Chapter 216 of the laws. As is customary, the same is accompanied by an affidavit; duly affirmed by the applicant. Before me, the applicant was·· represented by Mr. Mlawa, learned advocate; whereas, on the opposite side, there was Mr. Akaro, also learned advocate. As it turned out, the latter greeted the application with scorn upon a double-edged preliminary point of objection:- (a) That the application is incompetent on ground that neither the chamber summons nor the supporting affidavit have been signed/endorsed by the drawer thereof (b) That the supporting affidavit is further detective for not showing_ the place of verification. At the hearing, Mr. Akar9 was opportune to elaborate on the raised points of grievance. It, then, came to light that on the first limb of the objection; .. counsel had in mind the column at the foot of the respective documents running the heading: DRAWN AND FILED BY: Trne; aside from an indication thereat that the respective documents were drawn and filed by M & S Law Associates whose stamp is appended; the usual endorsement. or signature abreast the column is no show. On the premises, Mr. 1\karo engaged the contention that the non-endorsement is not in keeping with the mandatory requirements of section 43 and 44 (1) of the Advocates Act, chapter 341 of the laws. To that end, he concluded, on account of being in the company of defective documents, this court is not properly seized of the application. To forfity his argument, learned 1 · counsel referred to unreported decision of.the Court of Appeal comprised in MZA Civil Application No.2 of 2005 - Ashura Abdulkadri Vs. The Director Tilapia Hotel. . In that case, it was held that "endorsement" enjoins the drawer . of an instrument appending his/l1er signature there on. A regards the second limb of the preliminary point of objection; Mr. Akaro's arsenal were directed at the verification clause; counsel charged, as to exactly where the verification took 2 i .. ,,_,,,,. ./:1~41.. ::~/ -~(}! r c> place. Admittedly, learned counsel was at a loss to refer to any specifi_c rule, authority or practice where an affidavit was condemned for not .indicating tile piace of verification. Stili, counsel urged that an affidavit with such a·Hrnent is not in 900d taste. Ap.parently caught napping, Mr. Mlawa had little in response. All he said with respect to the first limb of the point of objection; was that the official stamp of the law from sufficiently satisfied the statutor~' requirement. Comlng · to the second limb, counsel submitted that it is not quite the law that the piace of verification must be manifest upon an affidavit. I should imagine that counsel sought to impress that there is not specific requirt::ment with respect to affidavits; similar to that obtaining in pleadings. It is noteworthy that, as regarcJs U1e ratter, Rule 15(3) of Order VI of the Civil Procedure Rulc~s specifically requires the verification to be signed by the person making it with such details as to the date and place on or at which the same was signed. If I understood him \f\/eil, Mr. Mlawa sought to suggest that much as it is not specifk:ally required of affidavits; it is not the rule that the place of verification must tie manifest abreast the verification clause. Addressing the first limb of objection; I must say, with respect to counsel for the applicant; that Ashura/ cited by his learned friend, is directly on the point and tells it all. Perhaps it is well worth the remark that in a _previous decision of my own; I was, actually, opportune to pay complete homage to Ashura to which I am bound, any way. That was in the unreported Tanga Registry (PC) Civil Appeal No.5 of 2008 - Robert Mhibu vs. Joyce Shellu.kindo. Passing on, then, to the second limb of objection; apparently Mr. Akaro is not alone in detesting a verification tl1at has no showing where it was made. Closely related, is an unreported decision, again, of Tanga Registry comprised in Misc. Civil Application No. 16 of 2007 - Ally Htibu Koroboto Vs. Mwan-aukuta Zuberi. In that decision, Sllayo, J; had to grapple with an affidavit whose verification did not indicate the place and date of signature. As it were, the affidavit was found incurably detective and shown the exit door. When all is said 3 and done; the present setting dovetails with the those comprised in Ashura, Robert and Ally. That being so; needi'ess to ha'ie to drum about the obvious: that the application before me is incompetent. In the result, the same is struck out with costs. Order according. Date: 29/09/2011 Coram: Musa, J; · Applicant: Present 4