arif mawji vs pradeep kamanuj 2011 tzhc 2170 26 july 2011

(LAND DIVISION) AT TANGA LAND CASE REVISION NO.2 OF 2011 (From the Decision of the District Land and Housing Tribunal of Tanga District at Tanga In Land Case/Land Application No.171 OO-of 2009) ARIF M A W J I ....................................................... APPLICANT VERSUS PRADEEP KAMANUJ (As administrator of the estate of the late JAGJID KAUR NIRMAL SINGH .....................................................RESPONDENT RULING Date of last order: 22/07/2011 Date of ruling 29/07/2011 Mussa, J; This matter originates from Application No. 171 of 2009 instituted in the Tanga district land and housing tribunal. In those proceedings, the respondent herein successfully sued the applicant herein for vacant possession of certain prem ises situate at Bombo area, within Tanga city. The applicant was aggrieved; w hereupon, he preferred Land Appeal N o.21 OF 2011 which is still pending in this court. In the meantim e on the 12th July, 2011; the trial Tribunal 4 • issued an eviction order against the applicant through its broker, Jupiter Action Mart. In the result; so it is alleged, the applicant was forcefully ejected from the premises on July 19lh 2011. Thus, it is against the foregoing backdrop that this application was mounted July 20lh 2011. the sam e is, obviously, a desperate effort through which the applicant seeks to move this court, first, to revise the eviction order and; second to issue an order for the maintenance of the status quo pending the determ ination of the sub-judice appeal. The application is by cham ber summons taken out under the provisions of section 41 and 43 (1) (bO of the Land Disputes Courts Act, Chapter 216 of the laws. As is custom ary, the sam e is accompanied by an affidavit; duly affirm ed 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 prelim inary 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 o f verification. At the hearing, Mr. Akaro 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 colum n at the foot of the respective docum ents running the heading: D R A W N A N D F IL E D BY: True; aside from an indication thereat that the respective docum ents were drawn and filed by M & S Law Associates whose stamp is appended; the usual endorsem ent or signature abreast the column is no show. On the premises, Mr. Akaro engaged the contention that the non-endorsem ent is not in keeping with the m andatory requirem ents 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 com pany of defective documents, this court is not properly seized of the application. To forfity his argument, learned counsel referred to unreported decision of the Court of Appeal com prised in M Z A C iv il A p p lic a t io n N o .2 o f 2 0 0 5 - A s h u ra A b d u lk a d r i V s. T h e D ir e c to r T ila p ia H o te l. In that case, it was held that "endorsem ent" enjoins the drawer of an instrum ent appending his/her signature there on. A regards the second limb of the prelim inary point of objection; Mr. Akaro's arsenal were directed at the verification clause; counsel charged, as to exactly w here the verification took place. Adm ittedly, learned counsel was at a loss to refer to any specific rule, authority or practice w here an affidavit was condem ned for not indicating the place of verification. Still, counsel urged that an affidavit with such ailm ent is not in good taste. Apparently caught napping, Mr. Mlawa had little in response. All he said with respect to the first limb of the point of objection; w as that the official stamp of the law from sufficiently satisfied the statutory requirem ent. C om ing’ to the second limb, counsel subm itted that it is not quite the law that the place of verification m ust be m anifest upon an affidavit. I should im agine that counsel sought to im press that there is not specific requirem ent with respect to affidavits; sim ilar to that obtaining in pleadings. It is notew orthy that, as regards the latter, Rule 15(3) of Order VI of the Civil Procedure Rules 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 well, Mr. Mlawa sought to suggest that much as it is not specifically required of affidavits; it is not the rule that the place of verification must be m anifest 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 rem ark that in a previous decision of my own; I was, actually, opportune to pay com plete 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 Shellukindo. Passing on, then, to the second limb of objection; apparently Mr. Akaro is not alone in detesting a verification that has no showing where it was made. Closely related, is an unreported decision, again, of Tanga Registry com prised in Misc. Civil Application No. 16 of 2007 - Ally Htibu Koroboto Vs. Mwanaukuta Zuberi. In that decision, Shayo, 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. W hen all is said and done; the present setting dovetails with the those com prised in Ashura, Robert and Ally. That being so; needless to have to drum about the obvious: that the application before me is incompetent. In the result, the same is struck out with costs. Order according. K.M, MU§§A, J; 27/07/2011 Date: 29/09/2011 Coram: Musa, J; Applicant: Present Respondent: c ° u h i. Akaro Ru l i n # ^ r ^ f t i L I>T 6 smim I '■ I N ’! r ' /> // \ '