CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. 3.A.. KEREFU, J.A.. and NGWEMBE, J.A.^ CIVIL APPLICATION NO. 456/17 OF 2021 CHARLES CHRISTOPHER HUMPHREY RICHARD KOMBE a/c HUMPHREY .APPLICANT BUILDING MATERIALS VERSUS KINONDONI MUNICIPAL COUNCIL..........................................RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) fWambali, Mwandambo and Mashaka. JJA^ dated the 2nd day of August, 2021 in Civil Appeal No. 125 of 2016 RULING OF THE COURT 18th March & 18th April, 2024 NGWEMBE. 3.A.: This is an application for review which was lodged by Charles Christopher Humphrey Richard Kombe a/c Humphrey Building Materials. The applicant invites the Court to review its decision dated 2nd August, 2021. In the said decision, the Court dismissed the applicant's appeal with costs. Being dissatisfied with the dismissal order, the applicant preferred this application under section 4 (4) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] (the AJA) and Rules 48 (1) (2), 66 (1) (a) (d) of the Tanzania Court of Appeal Rules, 2009, (the Rules). It is noteworthy that while the notice of motion shows that the application is supported by an affidavit sworn by Charles Christopher Humphrey Richard, while the actual affidavit is sworn by Charles Christopher Humphrey Richard Kombe, who also states that he is an applicant. The application is contested by the respondent through an affidavit in reply sworn by Mr. Daniel Chacha Nyakiha, learned State Attorney. As a brief background of the application, the applicant instituted a suit which was registered as a Land Case No. 118 of 2007 at the High Court of Tanzania, Land Division, in which he claimed against the respondent for recovery of his properties worth TZS. 2,145,265,000.00. It was alleged that, the said properties were found in his business area, an open space, along old Bagamoyo Road, Kinondoni District within Dar es Salaam Region. Unfortunately, at the end of the trial, the High Court dismissed the case with costs after it formed an opinion that, the applicant herein did not prove it on a balance of probabilities. The applicant's thirst to seek justice never stopped as he appealed to the 2 Court in Civil Appeal No. 125 of 2016. However, on the 2nd August, 2021 the Court dismissed the appeal in its entirety. The applicant's dissatisfaction with the said decision prompted him to approach the Court by way of review premised on three grounds. However, we do not intend to reproduce them herein for the reason to be disclosed later on. At the hearing of the application, Mr. Robert Rutaihwa, learned advocate, entered appearance for the applicant, while Mr. Deodatus Nyoni, learned Principal State Attorney assisted by Messrs. Boaz Msoffe and Nixon Tenges, learned State Attorneys entered appearance for the respondent. Prior to the commencement of hearing of the application on merits, considering the noted variances on the names of the applicant stated above between the notice of motion and the affidavit in support of the application, we required the parties to comment on the competence of the application. In response thereon, Mr. Rutaihwa readily admitted that, while the notice of motion shows that it is supported by an affidavit of Charles Christopher Humphrey Richard, the affidavit is sworn by Charles 3 Christopher Humphrey Richard Kombe. Basically, he conceded that the name Kombe found in the affidavit is missing on the notice of motion. However, he strongly contended that the omission of the name Kombe in the notice of motion can be corrected through an amendment. In the circumstances, in terms of rule 4 (2) of the Rules, he prayed to amend the notice of motion with a view to include the name of Kombe. On the other hand, despite the deponent of the affidavit in support of the application missing the name 'Kombe' and his omission to disclose that he is a sole proprietor of the business in which he trades as Humprey Building Materials, Mr. Rutaihwa argued forcefully that, those discrepancies are minor and curable by amending the affidavit. Alternatively, he prayed to cure the defect by filing a supplementary affidavit in terms of rule 49 (2) of the Rules, which will include proper names of the applicant and description of his identity to the business of Humphrey Building Materials. He concluded his response by urging the Court to grant the prayers sought by the applicant to rectify the irregularities. On his part, Mr. Nyoni, commenced his reply by referring to rules 48 & 49 of the Rules. He argued that they are fundamental Rules which require every formal application to the Court to be in a form of notice of motion supported by an affidavit (s). He argued further that, as conceded by the applicant's counsel, there is variance on the name between the notice of motion and the affidavit, and that there is no description of the status of the deponent in relation with the applicant who is trading as Humphrey Building Materials. He maintained that, though the variances of the name can be cured by the amendment to the notice of motion, on the contrary, failure of the deponent to explain his relationship with the applicant cannot be cured by the said amendment under rule 4 of the Rules as argued by Mr. Rutaihwa. Thus, according to him, the application is incurably defective and should be struck out for having a defective affidavit. It was strongly argued by Mr. Nyoni that, it is settled in our jurisdiction that, affidavit being evidence in the form of written statement, cannot be amended, rather may be cured by filing a supplementary affidavit. However, he submitted that the nature of the defect cannot be cured by additional affidavit as the facts which the applicant wishes to introduce is not knew as it was in his knowledge. He thus, prayed that the application be struck out with costs. 5 In a brief rejoinder, Mr. Rutaihwa reiterated his submission in chief and insisted that, the defects are minor and capable of being corrected as they do not go to the substance of the application. Having carefully considered the submissions made by the counsel for the parties and examined the record of the application before us, the issue for our determination is whether this application is competent and capable of being determined on merits. It is not contested that, according to the judgment of this Court in Civil Appeal No. 125 of 2016, the subject of the application for review, the applicant, then appellant, is identified as Charles Christopher Hum phrey Richard Kombe t/a Hum phrey Buiiding M aterials, while in the present application, the applicant's name is Charles Christopher Humphrey Richard Kombe c/a Humphrey Buiiding M aterials, However, at the end of the notice of motion, it is clearly stated that: nthis application sh all be supported b y the affidavit o f Charles Christopher Humphrey R ic h a rd Surprisingly, the affidavit of Charles Christopher Humphrey Richard is not attached to support the notice of motion. On the contrary, what is attached bears the name of Charles Christopher Humphrey Richard Kombe. The name 'Kombe' has been added. We note that 6 though the applicant's counsel has conceded to the anomaly, he has prayed to be allowed by the Court to correct it by amending the notice of motion so as to be consistent with the name in the affidavit. Upon perusal of the affidavit, specifically in paragraph one, we further note that the deponent, Charles Christopher Humphrey Richard Kombe avers as follows; "That, I am the applicant above nam ed and I am conversant with the facts I am about to depose as herein under” Unfortunately, throughout the affidavit, the deponent has not disclosed his relationship with Hum phrey Building M aterials a trade name as appears in the impugned judgment On this point, the learned advocate for the applicant merely admitted and stated that, it is a minor error curable by filing a supplementary affidavit, and prayed to be allowed to lodge a supplementary affidavit, in terms of rule 49 (1) of the Rules, to include the missing information that he is the sole proprietor of the applicant. Admittedly, though the Court is empowered to order amendment of the notice of motion to reflect the other name of the deponent, the issue is whether by amending the notice of motion, the affidavit will disclose the relationship between the applicant and the deponent? At this juncture, we deem it appropriate to reproduce the provisions of rules 48 and 49 of the Rules: "Rule 48. -(1) Subject to the provisions o f sub - ruie (3) and to any other ruie allow ing inform al application, every application to the Court sh a ll be by notice o f motion supported by affidavit and sh a ll cite the specific ruie under which it is brought and state the ground fo r the re lie f sought: Provided that where an application om its to cite any specific provision o f the iaw o r cites a wrong provision, but the jurisdiction to grant the order sought exists, the irregularity o r om ission can be ignored and the Court m ay order that the correct iaw be inserted. (2) A notice o f m otion sh a ll be substantially in the Form A in the F irst Schedule to these rules and sh a ll be signed by or on beh alf o f the applicant (3) The provision o f th is ruie sh a ll not appiy- (a) to applications made in the course o f hearing, which m ay be made inform ally; or (b) to applications made by consent o f a il parties, which m ay be made inform ally by fetter/' "Ruie 49.- (1) Every form al application to the Court sh a ll be supported by one o r more 8 affidavits o f the applicant o r o f som e other person o r persons having knowledge o f the facts" (2) An applicant m ay with the leave o f the Court or with the consent o f the other party, lodge one o r m ore supplem entary affidavits and o r application fo r such leave m ay be made inform ally " The two rules provide different modes of application before the Court. The applicant opted to make a formal application for review, which must be supported by a valid affidavit. Nonetheless before we deal with the prayer by the applicant to lodge a supplementary affidavit, it is pertinent to know what is an affidavit. According to Black's Law Dictionary (8th Edition), an affidavit is a voluntary declaration o f fact written down and sworn to by the declarant before an officer authorized to adm inister oaths, such as a notary public. Yet in Mulla, commentary on the Indian Code of Civil Procedure, 2002, 16th Edition, at page 2341, an affidavit is defined as a sworn statem ent in w riting made especially under oath o r on affirm ation before an authorized officer." Moreover, Mulla in the Code of Civil Procedure 17th Edition, at page 849 discusses essential ingredients constituting a valid affidavit as follows: - 9 "The essential ingredients o f an affidavit are that the statem ent o r declaration made by the deponent is relevant to the subject m atter and in order to add sanctity to it, he sw ears o r affirm s the truth o f the statem ent made in the presence o f a person who in law is authorized either to adm inister oath or accept the affirm ation," A valid affidavit therefore, must contain the truth which is within the deponent's knowledge. It is in this regard that, the deponent must appear before a person authorized to administer an oath or affirmation. The deponent thus signs as evidence that he took the oath. Having completed the whole process, such affidavit is appended to the notice of motion which makes completeness of the application before the Court [see Samwel Kimaro vs. Hidaya Didas, Civil Application No. 20 of 2012 (unreported]. From the foregoing, the crucial questions still remain; one, whether in view of anomaly pointed out in the affidavit, even after the amendment of the notice of motion there is a valid affidavit in support of the application and, two whether the anomaly in the affidavit may be cured by filing a supplementary affidavit 10 There is no doubt that in terms of rule 49 (2) of the Rules, an applicant may, with the leave of the Court or with consent of the other party lodge a supplementary affidavit. It is also clear that such an application may be made informally. However, it is important to understand the meaning, essence and context of a supplementary affidavit. Notably, a supplementary affidavit is similar to a regular affidavit, but it is made to support or supplement an existing valid affidavit not otherwise. It is intended to add more details by providing additional information or evidence to support a case in a legal matter. For example, if a person who has filed an affidavit and later discovers new facts or evidence, he may file a supplementary affidavit to include new information. This can be helpful in supplementing the case or defending a motion. The supplementary affidavit therefore must provide good and sufficient reason as to why the information was not presented earlier. (See https://www.isd.law visited on 26th March, 2024). It must also be appreciated that an affidavit is made under oath that what a person is saying is the truth and must be according to his knowledge or information. In the application at hand, the question is whether an apparent defect in the applicant's affidavit can be cured by granting leave to file a supplementary affidavit as prayed by the learned counsel for the applicant. Considering the nature of the information which is sought to be provided in the supplementary affidavit, we are of the considered view that, it is not a new matter as it was within the knowledge of the deponent. Thus, the failure of the deponent to state his relationship with the trading business name of Humphrey Building Materials is not a new information to be provided in the supplementary affidavit. On the contrary, it is a fact which was in the deponent's knowledge when he deposed the initial affidavit. Therefore, failure to include that crucial information renders the affidavit incurably defective as it cannot support the application even if the notice of motion is amended to include the last name (Kombe) of the deponent which is missing. As we have intimated above, the prayer by Mr. Rutaihwa to file a supplementary affidavit must be backed by good and sufficient reason on why the information sought to be included was not stated in the initial affidavit and that the said information has been discovered later by the applicant. It is in this regard that, though the same is made informal, it is subject to the leave of the Court or the consent of the other party as 12 provided for under rule 49 (2) of the Rules. Faced with a similar request of lodging a supplementary affidavit, in The Registered Trustees of St. Anita's Greenland Schools (T) & Others vs. Azania Bank Limited, (Civil Application No. 168/16 of 2020) [2022] TZCA 334 99th June, 2022, TANZLII, the Court stated, among others, thus: - "It is our considered view that, (ike its name, supplem entary affidavit; can oniy be file d to supplem ent a proper existing affid avit..." The deponent of the applicant's affidavit was bound to state clearly that he carries on business with a business name of Humphrey Building Materials and that he is the sole proprietor of the business. In the circumstances, considering the nature of the defects in the applicant's affidavit, we are settled in our minds that this is not a proper matter in which we can exercise our discretion in terms of rule 49 (2) of the Rules to grant leave to the applicant to lodge a supplementary affidavit to cure it as prayed by the counsel. In the result, we find that the application is supported by an invalid affidavit as it does not disclose the crucial information on the identity of the deponent in relation to the applicant. Such a defect in an affidavit cannot be simply ignored as an affidavit is not a document to be treated lightly by the Court as it is based on the sworn statement by the deponent. For the foregoing reasons, we strike out the application. In the end, we order each party to bear his/her own costs. DATED at DAR ES SALAAM this 17th day of April, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL R. KEREFU JUSTICE OF APPEAL P.J. NGWEMBE JUSTICE OF APPEAL This Ruling delivered on 18th day of April, 2024 in the presence of Mr. Protace Kato Zake, learned counsel for the Applicant and Mr. Boaz Albany Msoffe, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14