Ruling Daniel Saningo and three Others vs

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI MISC. LAND APPLICATION NO. 11608 OF 2024 (Arising from the District Land and Housing Tribunal of Moshi at Moshi in Application No. 23 of 2021) DANIEL KILEO……….………………..……………………………….1st APPLICANT KANTI THADEUS KILEO………………………………...……….….2nd APPLICANT SATORIN KITUMBWE KILEO……………………………………….3rd APPLICANT VALENTINE THADEUS KILEO..…………………………..…………4th APPLICANT VERSUS VICTORIA MOSSES SANING’O (Administrator of the estate of the late Felix January Massawe)……..……………..……………….…….RESPONDENT RULING 11th September & 10th October, 2024. A.P. KILIMI, J. This ruling is in respect of the Preliminary Objection raised by the respondent herein against the application for Revision in respect of application No. 23 of 2021 from the District and Land Housing Tribunal of Moshi at Moshi. The application is brought under section 43(1(b) of the Land Disputes Courts Act Cap. 216 R.E 2019 and section 79(1) of the Civil Procedure Code Cap 33 R.E 2019 and it is supported by the applicant’s learned counsel, Mr. Gideon Mushi. In her counter affidavit, the respondent raised a Preliminary Objection on point of law that; a) That the Affidavit deponed by Advocate Gideon B. Mushi is defective. 1 The hearing before me of this Preliminary Objection (“PO”) was argued by way of written submissions where both parties had legal representation of learned counsels. Mr Gideon Mushi appeared for the applicant whereas Ms. Elizabeth Maro Minde appeared for respondent. Arguing in support of the raised PO, Ms. Minde submitted that the affidavit in support of the application was defective as it contravened order XIX rule 3(1) of the Civil Procedure Code “the CPC” Cap 33 R.E 2019 as shown in paragraph 10 of the said affidavit. Expounding, she submitted that the Applicant’s verification sworn by the Applicant advocate from paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 all reveals that were true to the best of his knowledge and understanding. She further added that paragraph 11 of the counter affidavit contained reliefs which were court’s discretion. Ms. Minde also submitted that even the objection raised in Application No 23 of 2021 giving raise to the present Revision was itself bad in law and was overruled with costs as it based on wrong provision of law of section 45 (4) of the Written Laws Amendment) Act, No 5 of 2021. She prayed for the application be strike out and the PO be sustained with costs. In their joint reply submission led by learned counsel Mr. Gideon Mushi, they submitted that the applicant’s affidavit did not contravene 2 order XIX Rule 3(1) of the Civil Procedure Act (supra). The learned counsel submitted that such order provides that ‘Affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, thus he submitted that proving the facts on the affidavit is upon hearing of the application at hand which was not at this stage. The learned counsel submitted that what they filed in support of the application was an affidavit and not a counter affidavit as the learned counsel for the applicant depicted. Mr. Maro further argued that at paragraph 11 of the affidavit, it did not contain reliefs clause because what the deponent intended to address was on the irreparable damage which they might suffer if the prayers sought on chamber summons will not be granted. He replied that the respondent went far by submitting on the merits of the revision which the same cannot be entertained at this stage. He added that the PO raised by the respondent were not based on pure point of law thus contravenes the principles developed in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd. (1969) EA 696 while quoting the decision of A/S Noremca Construction (NOREMCO) vs. Dar es salaam Water and Sewarage Authority (DAWASA), Commercial Case No. 47/2009, High Court of Tanzania, Dar es salaam (Unreported). 3 In her brief rejoinder, Ms. Minde added that affidavit itself are evidence as they are substitute of oral evidence as it was held in the decision of Richard Mgwilanga vs. Paulina Mtandi, Misc. Criminal Application No. 55 of 2021 at page 4 (unreported). Thus reliefs stated at paragraph 11 of the affidavit were not evidence that the applicants can prove. She added that the PO raised was a point of law and that a relief clause at paragraph 11 of the applicant affidavit was founded on illegality and is bad in law and thus it vitiate the validity of the affidavit. Having considered the rival submission from both parties in support for and against the raised PO, the one issue for determination is whether the PO at hand has merits. Order XIX Rule 3(1) of the CPC provides that; “Affidavit shall be confined to such facts as deponent is able of his on know ledge to prove, except in the interlocutory applications, on which statement of his belief may be admitted provided that the grounds thereof are stated.” [Emphasis added]. The learned counsel complaint is that the applicant’s affidavit contravenes the above quoted provision. 4 Having perused the attached affidavit in support of the applicant’s application, looking from paragraph 4, 5, 6, 7 it contains arguments on what transpired at the tribunal. Further paragraph 8, 9, 10 and 11 of the affidavit, it contains arguments and legal reasoning that the inclusion of 2nd to 4th applicants who were 2nd 3rd and 4th Respondents in application No. 23 of 2021 was done properly and in conformity with the law and thereby overruled the said PO, and despite the fact that there was an order to amend the application by adding new respondents, the tribunal proceeded to issue a ruling containing only one respondent who was the 1st applicant. Further at paragraph 10 there are argument and legal reasoning that there was illegality over the said issued ruling which overruled the applicant’s Preliminary Objection which needed intervention of this court. It is by those facts deponed in the attached affidavit, the deponent intends to reveal that there was illegality in a ruling delivered in land application No 23 of 2023. As correctly submitted by Ms. Minde that affidavits are the substitute for oral evidence which under section 62 (1)(a)(b)(c) and (d) of the Evidence Act of Cap 6 which recognizes that oral evidence qualifies to be direct evidence, in my considered view what the learned counsel for the applicant did, contravenes the said rule and order of the 5 CPC as what he deponed needed to be stated by the applicants themselves. This can also be observed in The Notaries Public and Commissioners for Oaths Act [Cap. 12 R.E. 2019] which limits the advocate interference of the parties if he/she will be representing them in any proceedings, it provides that; “No commissioner for oaths shall exercise any of his powers as a commissioner for oaths in any proceedings or m atter in w hich he is advocate to any of the parties or in which he is interested.” [Emphasis added]. Further in Lalago Cotton Ginnery and OH Mills Company Limited vs. The Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002 where it was held that; "An Advocate can swear and file an affidavit in proceedings in which he appears for his client, but on m atters w hich are in the advocate's personal know ledge only. For example, he can swear an affidavit to state that he appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings” 6 [Emphasis added]. Thus, the main complaint by the counsel for the respondent is that the affidavit in support of the applicant application was defective as it was sworn by the advocate who stated that everything stated was true to the best of his knowledge, this can be revealed directly at the paragraphs of the said affidavit from paragraph one to eleven in which the applicant’s learned advocate Mr. Gideon Mushi verifies the whole paragraphs of the attached affidavit. In my view, as per the above quoted provision and principle developed in the above quoted decision, what has been done by the learned advocate do contravene the above rules and procedures as stated above. Therefore, in up short, I find the raised PO with merit and I proceed to upheld it forthwith, consequently, the application is hereby struck out with costs for want of proper supporting affidavit. It is so ordered. DATED at MOSHI this 10th day of October, 2024. X JUDGE Signed by: A. P. KILIMI 7 Court: Ruling delivered today on 10th day of October, 2024 in the presence of Ms. Juliana Mushi learned advocate holding brief of Elizabeth Minde advocate for respondent, also first, second and fourth applicants present in person. Sgd; A. P. KILIMI JUDGE 10/10/2024 8