fortunatus nyigama paul vs permanent secretary ministry of public and security others 2009 tzhc 117 24 july 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 27 OF 2006 FORTUNATUS NYIGAMA PAUL.................................... .APPELLANT VERSUS PERMANENT SECRETARY MINISTRY OF PUBLIC AND SECURITY & 2 ANOTHER................................. RESPONDENT Date of Last Order 13/6/08 Date of Ruling 24/07/09 RULING Mwariia, J. The applicant, Fortunatus Nyigana Paul has instituted this application for orders of Certiorari and Mandamus that; 1. The decision of the 1st respondent summarily dismissing the applicant from police force be quashed. 2. The 1st respondent be ordered to treat the applicant as if he had never been summarily dismissed by the former vide his letters dated 22/10/2003 and 27/7/2005. The applicant further prayed for costs and any other reliefs that the court may deem just and/or fit to grant. As required by law, the application was brought by way of chamber summons supported by an affidavit. Before commencement of hearing of the application, the learned State Attorney, on behalf of the respondents, filed a notice of preliminary objection. In the notice, the learned State Attorney raised a point of law that; " The Applicant has no cause o f action against the Respondent" Further on 5/9/2008, a supplementary notice of preliminary objection was filed to the effect that "The Affidavit filed in support o f the application is defective in that [the] jurat does not state the place where the Affidavit was sworn" The preliminary objection was ordered to be argued by way of written submissions. In the written submissions in support of the preliminary objection, the learned State Attorney argued only the point of law that the affidavit is defective. The other ground of the preliminary objection that the applicant has no cause of action against the respondent was abandoned. Arguing that point, the learned State Attorney Stated that the affidavit sworn by the applicant Fortunatus Nyigana Paul does not state the place at which it was sworn. For that reason, it was submitted, the affidavit contravenes the provisions of S.8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12. To substantiate the submissions, the learned State Attorney cited the Court of Appeal decisions in the cases of D.B. Sharpriya & Co. Ltd V. Bish International, Civil Application No. 53 of 2002 (Dsm) (unreported) and Shabir Bhaiiee & 2 Others v. Selemani Raiabu Mizano, Civil Application No 161 of 2006 (Dsm) (unreported). Replying to the submissions by the learned State Attorney, the applicant argued substantially on the court's duty to do justice without being constrained unduly by technicalities. He cited a total of seven cases in support of his argument. 1. Bhari v Kan (1965)EA 94 2. Iron Steel Ltd. v C.W.Marty & Co. (1956) 23 EA CA 177. 3. Martha Michael Wejja v Hon A.G. & 3 others (1982) TLR 35. 4. Juma B. Kadala v Laurent Mnkande (1983) TLR 103 5. D.D.International Ltd v.Tanzania Habours Authority & Others, Civil Application No. 141 of 2001 (CA), (Dsm) (unreported) 6. D.T. Dobie (T) Ltd. v. Phantom Modern Transport (1985) Ltd (CA)(Dsm) (unreported) 7. Issaya Mwakilasa @ Wakuvwanga & Others. V East Africa television Ltd & Others, Comm. Case No. 46 of 2008 (Comm. Div) (Dsm) (unreported). In the last three cases cited by the applicant, the point in consideration was a defective affidavit, the nature of defect being lack of verification clause or lack of verification of some paragraphs of the affidavits. According to the applicant's submissions, the other first four cases concerned irregularities of which were not based on the defects of affidavits. The relevant Provision of the Notaries of Public and commissioners for Oaths Act, cap .12 RE 2002 under which the preliminary objection has been based provides as follows; " 8. - Every notary public and commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made. " According to the above provision, unlike verification clause, statement of the place at which an affidavit is made and the date on which it is made is mandatory. The applicant has submitted that failure to comply with that requirement is merely technical in nature and thus curable because although the provision cited above is mandatory, it cannot override the provisions of Art. 107 A (2) of the constitution of the United Republic of Tanzania which was applied to cure the defects of an affidavit in the D.T.Dobie Case (Supra). In my considered view that proposition by the applicant is not correct. Firstly, as said earlier the cases cited by the applicant are distinguishable in that while the requirement for a verification clause in affidavit or verification of each paragraph of an affidavit is not by law a mandatory requirement, statement of a place where the affidavit was made and the date on which it was made is a mandatory requirement by law. 5 Apart from the cases cited above by' the learned State Attorney, application of Art. 107 A(2) of the Constitution in a situation where there is specific mandatory provision of the law was a subject of decision by full court in the case of Zaberi Mussa v.Shinvanaa Town Council. Civil Application No. 100 of 2004 (CA), (MZA) (unreported). In that application one of the points of Preliminary Objection raised was similar to the present one in this application; " that the affidavit filed in support of the notice of motion is bad in law in that it contains a jurat of attestation which in incurably defenctive". It was submitted in that case that " the affidavit is defection in as much as it is not shown in the jurat of attestation the place where the affidavit was made". Upon the respondent's submission that the defect is curable under Act. 107 A (2) (e) of the Constitution, the Court of Appeal held as follows; ” There is no gainsaying that the jurat of attestation is an essessial ingredient of any affidavit. What the jurat should contain is Conspicuously Spelt out in S. 8 of the Act.... the commissioner for oaths cannot, with impunity, decide to pick and choose what to include and what to omit in the jurat... In a plethora of cases, this court has* held that an affidavit will be held to be incurably defective if in the jurat of attestation the place where the • affidavit was made is not shown." The court went further to state that, " Every affidavit\ therefore, which does not conform with the statutory requirements of S.8 o f the Act shall be treated as incurably defective.... After all article 107 A (2) (e) constrains us to administer justice in strict compliance with the requirements o f the law." In the present application the applicant did not show in the jurat of his affidavit the place where the affidavit was made. As has been demonstrated above, that is an incurable defect which renders the application incompetent. As a result therefore the preliminary objection succeeds. The application which has been found to be incompetent is therefore hereby struck out. Parties to bear their own costs. £j A.G. Mwarija JUDGE 24/7/09 24/7/09 For the Applicant - Present in person. "N For the 1st Respondent For the 2nd Respondent ^ Absent CC: Molloimet Ruling delivered. < A.G.TMwarija JUDGE 24/7/09