20140217 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., BWANA, J.A., And ORIYO, J.A.) CIVIL APPLICATION NO. 89 OF 2013 ELIAS TIBENDELANA ..••....•.•••..•.•••.....................•••••..••••••••••••••••• APPLICANT Versus 1. INSPECTOR GENERAL OF POLICE } 2. HON. ATTORNEY GENERAL ................................. RESPONDENTS (Application for review of the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Kileo, Bwana, Oriyo, JJJ.A.) Dated the 17th day of April, 2013 in Civil Appeal No. 115 of 2008 RULING OF THE COURT 6th & 26 th February, 2014 BWANA, J.A.: In a ruling of this Court dated 17th April, 2013, we dismissed an appeal filed by the applicant herein, by upholding a preliminary objection raised by the respondents. The said respondents had challenged the validity of the appeal which, it was alleged, had been lodged beyond the sixty (60) days period- prescribed by the Rules of Court, 2009. No leave for 1 • time for extension had been sought and obtained in favour of the applicant. Dissatisfied by that finding of the Court, the applicant filed this application for Review. Once again, the respondents raised a preliminary objection couched in the following words:- "The application is incompetent and bad in law for being accompanied by a defective affidavit. " In support of the above averment, the respondents filed a written submission in which it is argued that an affidavit for use in court should only contain a statement of facts and circumstances to which witnesses depose. Such affidavit should not contain extraneous matters by way of objection, prayer or legal argument. They cited several cases in support of their averment, including the Ex Parte Matovu vs Commissioner of Prisons (1966) EA 514, 520; luma S. Busiyah vs Zonal Manager (south) Tanzania Postal Corporation, Civil Application No. 8 of 2004 (unreported). It is the respondents' averment that paragraphs 3,5,6,7 and 8 of the applicant's affidavit in support of his Notice of Motion, contain 2 " legal arguments and submissions which offend the generally acceptable contents of an affidavit. When the matter came before us, Mr. Karimu Rashid, learned State Attorney representing the respondents adopted the contents of the written submissions and highlighted some areas to support his case. He, for example, stated that while paragraph 3 of the applicant's affidavit contains arguments of law (which are inadismissible) instead of facts, paragraph 5 cites Rule 83 (2) of the Court of Appeal Rules, 1979 as forming the basis for his arguments. Again, it is· claimed by Mr. Rashid that paragraphs 6, 7, and 8 contain opinions but not facts of the matters to be alleged. Mr. Rashid further argued that the format of the said affidavit does not conform to the requirements of Rule 48 (1) and Form A to the First Schedule of the Court of Appeal Rules, 2009 (the Rules). All the foregoing make the affidavit defective. Mr. Tibendelana, the applicant who appeared in person, controverted those claims by Mr. Rashid. He based his arguments on two points. 3 . First, that his Notice of Motion and Affidavit were made pursuant to the ·· provisions of Rule 66 {l) (a) (b) and (2) of the Rules - provisions that provide for Review. Second, that the State Attorney was wrong to raise a preliminary objection which is tantamount to a "cross examination of the affidavit" which is inadmissible. He did not elaborate. We have given due consideration to the arguments by both parties. We are however, of the considered view that this preliminary objection can be determined by considering two important factors namely:- First, whether the applicant's affidavit is truly defective or. not. If defective, what are the consequences. Second, whether the Notice of Motion lodged by the applicant conforms with the requirements of Rule 66 (3) of the Rules regarding setting out clearly the grounds for review. We start by examining the second factor. Rule 66 (3) stipulates thus:- "The Notice of Motion for review shall be filed within sixty days from the date of the Judgment or 4 order sought to be reviewed. It shall set out clearly the grounds for review" (emphasis provided). We would like to consider the emphasized part thereof. It is settled law, as clearly spelt out in Rule 66 (1) that a review would be entertained by the Court where it is evident that the matters enumerated under Rule 66 (1) (a) to (e) did exist. The applicant is then under obligation to clearly state his grounds for requesting a review of the Court's decision. Failure to do so not only offends the requirements of Rule 66 (3) but also is not in conformity with form A of the First Schedule. We have considered the Notice of Motion filed by the applicant. It clearly offends Rule 66 (3) by failing to state the grounds which lead the applicant to lodge a review. None of paragraphs 1 to 5 of the Notice of Motion specifically state any ground. Paragraph 1 is a mere request to the Court to review its earlier decisions. No reason is given as to why the Court should do so. Paragraph 2 is a request for clarification of a point of law. Same is paragraph 3. Paragraph 4 is a request for the respondent to bear costs of this application. And so is the concluding paragraph 5. 5 The deficiency - non compliance with Rule 66 (3) - is fat?tl. Litigation must have an end (debet esse finis litium). Review is entertained only when it is evident that grounds do exist as enumerated under Rule 66 (1) of the Rules. In the absence of grounds for review being provided, a review cannot be entertained. In the instant application, the applicant has not given grounds for his request for review. His application cannot succeed. The other point for consideration is whether the affidavit in support of the notice bf motion is defective. According to Black's Law Dictionary 7th Ed. an affidavit is:- a voluntary declaration of facts written down and 11 sworn to by the declarant before an officer authorized to administer it. " £. Essentially, it is trite law that an affidavit in,tended to be used in judicial proceedings is required to be confined to facts which the deponent is able to prove and verify (see Mantrac Tanzania Ltd vs Raymond 6 " Costa, Civil Application No. 11 of 2010 (unreported). In Ex Matovu case, supra, it is further provided that:- "....... such an affidavit should not contain extraneous matters by way of objection, prayer, legal arguments or conclusion .......... 'femphasis provided). Examining the applicant's affidavit, we do agree with Mr. Rashid that it does not conform to the general rule of practice and/or procedure. It · contains matters which are argumentative (para 3, 6, 7) legal (para 5) and conclusions (para 8 and 9). It is therefore incurably defective. The only available remedy is to strike it out as we hereby do. Having struck out the said affidavit, the applicant's notice of motion (which has already been found defective as well) has no legs to stand on. In conclusion, we would like to observe, in passing, that it is on record that the applicant filed a preliminary objection as well on 29 th August, 2013 in opposition to the one filed by the respondents on 22 nd 7 ,. August, 2013 and which forms the basis of this Ruling. The propriety of an applicant lodging a notice of preliminary objection against one filed by the respondent is unheard of. It suffices to state that the procedure is unknown to our laws of practice and whenever applicants have attempted to raise such an application over another, the Courts of law have discouraged the practice (see Hasmukh Bhagwanji Masrani vs Dodsal Hydrocarbons and Powers and Others, Civil Application No. 100 of 2013; Laurent Kavishe vs Enelly Hezron, Civil Application No. 5 of 2012 (both unreported); The University of Dar es Salaam vs Silvester Cyprian and 210 Others (1998) TLR 175; Haji Hassan Amour and 112 Others vs Managing Director, People's Bank of Zanzibar, Civil Application No. 20 of 2011 (unreported) - wherein it is stated that raising of a preliminary objection is a weapon available to the respondent, not the applicant .... an effort by an applicant to move a court of law through a preliminary objection is misplaced. In Shahida Abdul Kassim vs Mahed Mohamed Kanji, Civil Application No. 42 of 1999 (unreported) the Court held inter alia thus:- "·······'-•f-h.IS emerging practice of countering a preliminary objection by another preliminary 8 :ti objection encapsulated in some innocent, sounding phrases, should be nipped in the bud ..... " ( emphasis provided). Similar position should therefore, be taken in this matter before us. All the above considered therefore, the preliminary objection raised by the respondents herein is upheld. This application for review filed by the applicant, Elias Tibendelana, fails. It is struck out. No order as to costs. DATED at DAR ES SALAAM this 17th day of February, 2014. E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 9