20130506 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA MISC. LAND CASE APPLICATION NO. 54 OF 2012 DAIMON MWANDAMBO as legal representative of ANYANDWILE MWANDAMBO ............... APPLICANT VERSUS CHARLES MWANDAMBO ................... RESPONDENT RULING Date of last Order: .13/3/2013 Date of Ruling: 06/5/2013 KARUA, J. - The applicant, Anyandwile Mwandambo, was sued by the respondent Charles Mwandambo, over a piece of land at I tete Ward Tribunal in Rungwe District and lost. His appeal at the District Land and Housing Tribunal was equally unsuccessful. The appellant felt aggrieved and hence, this appeal. On the 31 st October, 2012, the appeal was set for hearing by way of written submissions. 1 Unfortunately, the applicant did not comply with the schedule. The applicant has therefore filed the present application, under the provision of section 14( 1), of the law of limitation Act, in search of enlargement of time within which to file his written submission. The application was preferred and 1s supported by the affidavit of Mr. Mushokorwa, learned advocate on behalf of the applicant. But before it was argued, however, Mr. Mushokorwa, noted that the respondent affidavit, that was filed in opposing the application, was fatally defective, and hence raised a preliminary objection, which was also directed to be ridden of, by way of written submissions, the subject of this ruling. Mr. Mushokorwa, abandoning his complaint over the verification clause, argued that the attestation clause, however, was incurably defective as it offended the prov1s1ons of section 8 of the Notaries Public and Commissioner for Oaths Act, Cap 12, [R.E. 2002], which demands that the attestation clause should bear the place and date where and when the attestation was made. In the present case, the attestation clause misses the place where attestation was made. Mr. Mushokorwa, cited the decision of the CAT in the famous case of Ashma 2 Abdulkadri Versus The Director of Tilapia Hotel, Civil Application No. 2 of 2005 and Mohamed A. Hassein Versus Pita Kempap Ltd [2005] TLR 383. Likewise, the counsel for the applicant complained that the counter affidavit contained extraneous matters, in that it was argumentative and set up objections and prayers instead of ra1s1ng facts. According to Mr. Mushokorwa, the inappropriate matters comprised in the counter affidavit, render it bad in law and offended the requirements of Rule 3(1) of Order XIX of the CPC Cap 33 [R.E. 2002]. Mr. Mushokorwa cited Jumuiya ya Wafanyakazi Versus Shinyanga Cooperative Union (1997) TLR n. 200. With respect, I sustain Mr. Mushokorwa's submissions. That 1s, indeed, the position in law. Unfortunately I could not find anything useful coming out of the respondent's submission, apart from his insistence that the counter affidavit contains facts and is not argumentative. However, I am persuaded that the jurat in the counter affidavit offends the provisions of section 8 of Cap 12 and the cited cases are rooted in law. Besides, the counter affidavit contains improper matters. For order XIX rule 3(1) of the CPC, as expounded by Mr. Mushokorwa, requires affidavits to be confined to facts. It should not 3 contain arguments and submissions on matters of law. The flaws in the counter affidavit render it invalid. Consequently, I will struke out the counter affidavit to the extent that there exists no evidence to resist the application. Extention of time to file written submission is granted. A new schedule is set up. Mr. Mushokorwa, will present his submissions by 20/5/2013. The respondent will reply by 3/6/2013 and Rejoinder, if any, by 10/6/2013. The Judgment in the appeal will be delivered on 13.6.2013. S.V.G.KARUA JUDGE DATED AT MBEYA 6th May, 2013. Appearances: For applicant: Mr. Julius Mwandambo notifies the court that the applicant sick. For Respondent: Present in person. 4