20041119 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION- No. 92 of 2003 BONIFACE HAMISI. ..... ~ ... ■ • •••••••••••••••••••••••••••••• APPLICANT Versus MANGOLA BARAZANI VILLAGE COUNCIL. ..... RESPONDENT RULING R. Sheikh, J. This is an application_ by the applicant BONIFACE HAMISI brought under section 63(1) of the Magistrate's Courts Act No 2 of 1984 for leave of this court to institute Civil Proceedings in respect of unregistered land in the court of the Resident Magistrate at Arusha. The dispute is concerning a piece of land measuring about 9 acres, situated at Mangola Barazani Village in Karatu District, Arusha Region. The respondent, MANGOLA BARAZANI VILLAGE COUNCIL strongly resisted the application and filed a counter affidavit. The applicant countered that by filing a Notice of Objection on points of Law regarding the counter-affidavit on the following grounds:- "(1) that the purported counter-affidavit having been affirmed by an unknown person is defective and legally incompetent. L .I. .'' , I 2 (2) that in the alternative and without prejudice to the ' aforegoing ground the affidavit lacks verification and not disclosing the source of the deponent's knowledge and information, hence the same is defective and legally incompetent." Regarding ground (1) of the Preliminary Objections it was contended that the counter-affidavit is incompetent as it does not state by whom the counter-affidavit was sworn, that it does not disclose the name of the deponent. It was also submitted that the counter-affidavit is incurably defective as it has not been attested by a commissioner for oaths. As regards ground (2) of the objections, it was contended that the counter-affidavit is incurably defective as it does not disclose the sources of the deponent's knowledge belief and information of his I lr alleged statement. He cited in his favour the decision of the Court of Appeal of Tanzania in Salum Foum versus Registrar of Cooperative Societies. T.L.R. (1995). The Respondent has called for dismissal of the objections for being misconceived and untenable in Law. I have carefully considered the submissions of both parties in the light of the relevant Law. 3 Order XIX Rule (1) of the Civil Procedure Code States:- "Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing ..................... " In Shapriya & Co. Ltd. vs. Bish Internationa. B.V. Civil Application No 53 of 2002 it was stated that:- "an affidavit .... as a written document containing material and relevant facts or statements relating to matters in question or issue or sworn or affirmed and signed by the deponent before a person or officer duly authorized to administer any oath or affirmation or take any affidavit." In other words, an affidavit or counter-affidavit for that matter is a written statement made by a person who swears it to be true (deponent) which can be used as evidence in a court of Law. An affidavit for use in court being a substitute for oral evidence should only contain statements of facts to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Clearly for there to be an affidavit there must be a witness who deposes to the facts stated in the affidavit. The document containing - the statements of facts to which the witness deposes must disclose who the deponent is as well as the official administering the oath. I have carefully perused the counter-affidavit and clearly it does not disclose either the name of the deponent (the witness) who deposed the statements of facts or the identity of the Commissioner for Oaths who administered the oath. For the above reasons the counter-affidavit is incurably defective and must be struck. The counter-affidavit is also incurably defective for not disclosing the sources of information relied upon by the deponent as required by the Law (See the Salim Foum case, supra) There is yet another reason which renders the counter-affidavit incurably defective under Section 8 of the Notaries Public and Commissioners for Oaths Ordinance (Cap. 12). The jurat of attestation does not state on what date the oath or affidavit was taken or made. The requirement to disclose the date is mandatory under Section 8 aforesaid, and the jurat is without doubt incomplete if it does not disclose on what date the oath or affidavit is taken (See the decision of the Court of Appeal in the Shapriya Case, supra). For the above reasons I uphold the preliminary objections and also hold that the counter-affidavit filed by the respondent is also 5 incurably defective for non-closure of the date of the oath, and it is hereby ordered that it be struck out. On the other hand, in the context of amendments of the Law relating to civil disputes concerning land the application itself cannot stand. With the coming into force of the Land Disputes Courts Act No 2 of 2002 which came into operation on 1st October 2003 (See G.N. No 223 of 2003) the Primary Courts as well as the District and Resident Magistrates' Courts have no jurisdiction to try disputes concerning land. Under Section 63(1) of the Magistrates' Courts Act 1984 as amended by Section 57 of the Land Disputes Act No 2 of 2002, it is in my view no longer necessary or proper to seek leave of this court under Section 63 (1) of the Magistrates' Courts Act for purposes of commencing proceedings concerning disputes over land, notwithstanding that the land in dispute is unregistered land. This court no longer has the discretion under Section 63 ( 1) of the Magistrates' Courts Act to grant leave to institute civil proceedings in respect of land held under Customary Law in a Resident Magistrates' Court or any other District Magistrates' Court as these courts no longer have jurisdiction in any civil proceedings relating to land. The Resident Magistrate's Court is not the right forum for instituting the intended suit (See the Land Disputes Act No 2 of 2002). 6 The application is incompetent and is accordingly dismissed with costs. K~ R. Sheikh JUDGE 18/11/2004 Ruling read in Chambers this 19/11/2004 in the presence of the applicant and in the absence of the respondent, with Mariam Bench Clerk being present. R.She~, JUDGE 19/11/2004 RS/hjm.