Fatuma

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO.8656 OF 2024 (Arising from Land Case No.8538 of2024) FATUMA MACHINGA NGOMA...................................... APPLICANT

VERSUS CRDB BANK PLC............. ............ 1st RESPONDENT ALLIANCE ACADEMY LIMITED......................... 2nd RESPONDENT

RULING Date of Last Order: 16.05.2024 Date of Ruling: 28.06.2024 T.N, MWENEGOHA, J The Ruling is in respect of preliminary objections raised by the 1st respondent against the determination of the Application as follows; - 1. The Application is untenable for being brought under wrong enabling provision.

2. The Application at hand has been accompanied by a defective affidavit.

3. The affidavit is bad in law for containing hearsay statements.

4. The affidavit is bad in law for having a defective verification clause. i The objections were heard through written submissions. Advocate Mathew Ngaga appeared for the 1st respondent while the applicant was represented by Advocate Privat Rugambwa. In his submissions, the 1st respondent abandoned the 3rd and 4th objections and remained with the 1st and 2nd objections. Arguing on the 1st objection, Mr. Ngaga insisted that, the affidavit in support of the Application contains a defective jurat of attestation. That, the deponent being a Muslim ought to have affirmed in the jurat and not swear. This is contrary to sections 4(a) and (b) and 5 of the Oaths and Statutory Declarations Act, Cap 34, R.E 2019. To cement his position, the 1st respondent's counsel cited the case of Moses Gilbert Kitime & 4 Others versus The Registered Trustees of Evangelist Assemblies of God Tanzania, Revision No.7 of 2023, High Court of Tanzania, (unreported). In reply, Mr. Rugambwa insisted on the 1st objection that, the same is devoid of merits. The affidavit in question is not defective and the affidavit is capable of supporting the Application. In his submissions the applicant's counsel relied on the case Asha Haruna versus R, Criminal Appeal No. 75 of 2005, Court of Appeal of Tanzania (unreported). Rejoining on the 1st objection, the counsel for the respondent insisted that, the jurat is defective

as stated in Zuberi Mussa versus Shinyanga Town Council, Civil Application No. 100 of 2004, Court of Appeal of Tanzania(unreported). Having heard the parties, I had to determine merit of the objections. I examined the alleged offending part of the Affidavit and my findings were that the same appears to be different from the oath administered. The 2 deponent affirmed in his affidavit, she cannot afterwords be sworn in the jurat. It looks like the deponent took two different oaths in the same document. One being administered according to Islamic religion and the other as a Christian. A peculiar fact in this case is that the applicant affirmed and swore at the same time. At this juncture I have to say I agree with the counsel for the respondent that the jurat of attestation of the applicant's affidavit is defective. The 1st objection is sustained. For these findings, I see no need to discuss the 2nd objection, as the same are capable of disposing the entire Application to its finality. In the event, the Application is struck out with costs. Ordered accordingly. 28/06/2024 3