RULING PO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM CRIMINAL REVISION NO 1688 /2025 CASE Ref no 202501202000001688 [Originating from Criminal Case No. 993 of 2025, which is pending in the Resident Magistrate's Court of Dar Es Salaam at Kisutu. DR. WILBROAD PETER SLAA........................................................APPLICANT VS REPUBLIC.................................................................................RESPONDENT RULING: 24th & 24th Jan 2025. KIREKIANO J: Under Sections 372 (1) and 392A (2) of the Criminal Procedure Act [Cap. 20 R.E 2022], the applicant has brought this application, praying for the following orders. (i) That this Honourable Court be pleased to call for and examine the records of Criminal Case No. 993 of 2025 which is pending in the Resident Magistrate's Court of Dar Es Salaam at Kisutu for the purpose of satisfying itself as to the correctness, legality, propriety of any finding or order recorded or passed and regularity of the said proceedings. 1 (ii) Any other order (s) this Honorable Court will deem fit, just and equitable to grant. The application is supported by the affidavit of Emiliana Wilbrod Muchu Slaa, the applicant's daughter and contested by the respondent. The counter affidavit opposing the application noted that the deponent is neither the applicant’s counsel nor part of the case. With this note, after a brief dialogue with the parties, I invited the parties

to consider the decision in Salima Vuai Foum Vs. Registrar of Cooperative Societies and Three Others [1995] TLR 75 (CA) whether the affidavit sufficiently disclosed the source of information and is competent to support the application. Mr Madeleka, for the applicant, was of the view that no infringement was made in the affidavit, citing the very case of Salima Vuai Foum. He acknowledged that an affidavit, which does not disclose the source of information, should not be acted upon. However, the affidavit in the cited case was ruled defective because nowhere in the affidavit, either as a whole or in any particular paragraph, was it stated that the facts deposed to or any of them, and if so, which ones were true to the deponent's knowledge, or as advised by his advocate, or are true to his information and belief. This is not the case here. 2 He also cited Mohamed Wadi Vs Amir Abdallah Miscellaneous Civil Application No. 643 to the effect that the affidavit shall be based on facts the deponent can prove. Mr Mwasipu added that the source of information in the verification clause could be belief, personal information, or other Sources of the information to be named. He cited DPP V. Dodoli Kapufi Criminal Application No. 11 of 2008 on page 3 but also the case of Anatol Peter Rwebangira V. The Principal Secretary, Ministry of Defence and National Service & Another, Civil Application

No. 548/04 of 2018 that an affidavit is required to specify the facts deposed basing on the knowledge of the deponent and which are based on the belief of the deponent. In this case, the deponent states the source of information of all facts were in her personal knowledge. He argued that the deponent was competent to state the facts as long as she could prove the facts. As such, Mr Kilatu argued that this court should consider decision in Uganda v. Commissioner of Prisons, ex parte Matovu [1966] E.A. 514 and consider that since the source of information was indicated as personal knowledge, then this was sufficient unless the deponent was to be cross-examined, which would not render his deposition invalid. 3 On the part of the respondent, Mr. Katuga submitted that the deponent stated that she is the applicant's daughter. This did not make her a part of the proceedings in the proceedings and conversant with the facts. Thus, there was a problem with her knowledge as a source of information. He distinguished the decision in Mohamend Wade vs. Amiri, arguing that that decision was based on an affidavit that was not signed, hence not showing the source of information. The court went on to hold that the verification was defective. As such Miss Manja cited, Absa Bank Tanzania Limited And Another Vs Hjordis Fammestad (Civil Appeal No. 30 Of 2020) [2024] Tzca 1273 (13 December 2024), on

page 18, where, the court held that the affidavit was defective because the source of information was not disclosed. Thus, the court went on to strike out the application in want of an affidavit. In his rejoinder, Mr Madeleka submitted that the argument that the deponent must be a person who is part of the case is not the law. An affidavit is evidence, and thus, even in an oral account, not all witnesses are part of the case. 4 In this case, the fact that the affidavit stated the source of information was enough. On my part, having gone through the parties arguments, it is common ground that an affidavit which does not disclose the source of information should not be acted upon. In Mohamed Wadi Vs Amir Abdallah at page 5 this court emphasised that; Indeed, the law on affidavits, i.e. Order XIX Rule (3)(1) of the Civil Procedure Code, Cap 33 RE 2002, has put a requirement that affidavits shall be confined to facts as the deponent is able of his own knowledge to prove. Personal knowledge as a source of information was also stated in the cited case of Uganda V. Commissioner of Prisons, Ex Parte Matovu, [1966] EA 514 that an affidavit is required to contain statements of facts and circumstances to which the witness deposes either on his own knowledge or from information which he believes be true. Now the affidavit at issue at the verification clause shows thus; I, EMILIANA WILBROD

MUCHU SLAA being the Deponent herein, do hereby verify that all what is stated herein above in paragraph 1, 2,3 and 4 above, is true to the best of my knowledge. 5 I have considered Mr Mwasipu's submission on the source of information who argued to this court to look at the affidavit and consider the source stated by the deponent that is best her knowledge as sufficient. I have also revisited the decisions in Absa Bank Tanzania Limited And Another Vs Hjordis Fammestad but also the case of Salima Vuai Foum V Registrar of Cooperative, in the later case the court stated at page 78 that; The appellant’s affidavit which was an essential part of the appellant's application before the learned Chief Justice had neither the verification clause nor did it specify the source of the information deponed by the appellant. This is not the case in this application because the deponent indicated in all paragraphs that what she deponed was according to the best of her knowledge. Upon reflection, I agree with Mr Madeleka that as long as the deponent stated the source of information to be her own best knowledge. Sufficiency of her knowledge could not be tested at this stage in any case that would be a question of fact to be resolved. Based on the foregoing, I am satisfied that the affidavit is proper and competent to support the application. Dated at Dar es Salaam this 24.1.2025. 6

A J KIREKIANO JUDGE. 24.1.2025 7