gayila gesa versus elias salum 2023 tzhc 19692 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF SHINYANGA) AT SHINYANGA MISCELLANEOUS LAND APPLICATION NO. 44 OF 2022 (Appeal from the judgment of the High Court of united Republic of Tanzania Matuma J, dated on 29th July 2022 in Land Appeal No. 55 of 2021 at Maswa District Land and Housing Tribunal) GA YILA G ESA .. II. II. II ••••••••••••••••••••••••••••• II •••••• II. II ••• APPLICANT VERSUS ELIAS SALUM RESPONDENT RULING MASSAM,l: This application by the applicant Gayila Gesa is made under section 47 (2) of the Land Disputes Court Act Cap 216 R. E 2019. According to the chamber summons, the applicant prayed for leave to appeal to the court of appeal of Tanzania against the judgment and decree of the High court at 1 Shinyanga before Matuma, J dated on 29th July 2022 in Land Appeal No. 55 of 2021.The applicant's application is supported by his own affidavit and objected by the respondent who filed counter affidavit. Before hearing of this application respondent filed a notice of preliminary objection on a point of law and state that the same will be moved out to struck out the applicant's application. He said that the drawer of the application did not endorse and indicate his name contrary to Section 44 of the Advocates Act [Cap 34 R.E 2019] When the said objection was called for hearing on 3/3/2023 the applicant was represented by Mr. Phares Malengo learned counsel whilst the respondent was represented by Mr. Ijan Augustine learned counsel. By leave of the court the Preliminary objection was urged by way of written submission. Supporting his objection, the advocate for respondent submitted that after received the said application, he discovered some defects thus why he raised this objection on point of law that the drawer of the said application did not endorse nor indicate his name which is contrary to section 44 of the Advocates Act Cap 34 R.E 2019. He added that affidavit 2 of the applicant is defective for contravening Section 44 of the Advocates Act (Cap 34 R.E 2019), he said that at the end of the applicant affidavit did not indicate who was the drawer, Again he said that section 44(1) of the advocate Act cap 341 R.E 2019 concern with matters to which instrument shall be confined, it said as follows; ''Every person who draws or prepares any instrument in contravention of section 43 shall endorse or cause to be endorsed thereon his name and address and any such person omitting to do so or falsely endorsing or causing to be endorsed any of the said requirement shall be liable on conviction to a fine not exceeding two hundred shillingsN Again he said that the above section prohibit the said instrument to be accepted by any Authority as provided in section 44 (2) of the Advocates Act Cap. 341 R.E 2019 it provides as follows" "It shall not be lawful for any registering authority to accept or recognize any instrument unless it purports to bear the name of the person who prepared it endorsed thereon. N 3 Also he said that because the word used was "shall" then it is mandatory and not optional, So it not supposed to be accepted or recognized by this court as it was held in the case of Ruth Langeni Mfanga Vs. Ilemeia Municipal Council, Labour Revision No. 66 Of 2019 High Court of Tanzania at Mwanza (unreported) before Rumanyika 5.M which held that ''It is my considered opinion and finding that the application was contrary to provisions of the Advocates Act drawn by unqualified person the application is for the above stated reasons refected" Lastly he said that according to the above reasons, the application of the applicant is defective, so he pray the same to be dismissed. On his applicant reply to the respondent's submission, he concedes that the applicants' affidavit did not show the name of the person who drew it but the chamber summons shows that it was drawn by the applicant and that omission was caused by keyboard mistake. He added that despite that omission he strongly differ with the submission by the counsel for respondent that the omission is fatal 4 sufficient to dismiss the application because dismissal can only be done where the matter has been heard on merit and the said omission can be cured by the principle of overriding objective as introduced by the written law. Also applicant submitted that respondent submission he cited case the of Ruth Langeni Mfinga Vs. Ilemeia Municipal Council Labour Revision No. 66 Of 2019 High Court of Tanzania at Mwanza suggesting that since the chamber summons is drawn and filed by the applicant then he is unqualified person within the meaning of Section 44 of the Advocates Act Cap 341 R.E 2019 so what is the position of the respondents notice of preliminary objection and the counter affidavit filed before this honourable court on 11/10/2022 which is drawn and filed by Elias Salum the respondent, he said that that act is as what was discussed in holly bible in Mathew 7:3-5 which states "and why do you look at the speck in your brothers eye but do not consider the plank in your own eye? or how can you say to your brother let me remove the speck from your eye and look a plank is you own eye? Youhypocrite first take the plank out of your own eye and then you will see clearly to remove the speck from your own brothers eye/~ 5 Again he said that respondent has failed to demonstrate how the omission has affected him, as such he is in view that an idea of strucking out this application can not benefit any party even court as elaborated in the case of Michael Clement Juma vs Abdalah Mfaume Mdogwa and 3 others, Misc. Land Application No. 165 of 2022 Arufani J held that ''struck out the application will not benefit any of the party in application or the court but rather it will continue to delay dispensationof justice in a matter while vision of the court is dispensation of justice timetv". So he pray this court to overrule the objection with costs and proceed to determine application on merit. I have considered the urgements by the learned counsel for the applicant and respondent the issue to determine is whether the objection raised has merit According to section 44 of the Advocates Act Cap 341 provides that "every person who draws or prepares any in contravention of section 43 shall endorse or cause to be endorsed thereon his name and address and any such person omitting so to do or falsely endorsing or causing to do 6 endorsed any of the said requirement shall be liable on conviction to a fine not exceeding two hundred shillings". This court get time to peruse the end of the affidavit of the applicant and respondent counte.r affidavit and finds out that it has no different all are the same and if there was any omission in the said instrument both applicant and respondent will be liable, let us see the end of the affidavit of the applicant it says that sworn at 5hinyanga by the said Gayila Gesa who is known to me personally this 22nd day of August, 2022 Also in the chamber summons of the applicant it was written that drawn and filed by; Gayila Gesa c/o The VEO of Nyashimba village Maswa-Simiyu. Again by looking the notice of preliminary objection of the respondent at the end he wrote that drawn and filed by; Elias Salum c/o Veo of Nyashimba Maswa 5imiyu ,and his counter affidavit wrote as follows affirm at 5hinyanga by the said Elias 5alum who is known to me personally /identified to me by.....the latter known to me personally. This 10th day of October, 2022. So this court is in view that all documents from applicant and respondents are the same, 50 in case of any omission all parties conducted 7 the same, mistake so this court is in support of the submission of the applicant which came from the holy bible that "why do you look at the speck in your brothers eye but not consider the plank in your eye? in this application respondent was not supposed to file the preliminary objection against applicant application concerning that mistake/omission as he did the same mistake too in his documents. Also I agree with the submission from applicant that the said omission can be cured by the principle of overriding objectives as introduced by The Written Law (Miscellaneous Amendment) Act no. 3 of 2018 and with the held given to the case of Michael Clement Juma vs. Abdallah Mfaume Mdogwa and 3 others, in Misc Land Application No. 165 of 2022 which held that; ''Struck out the application will not benefit any of the party in the application or the court but rather it will continue to delay dispension of justice timely" Again this court is in view that if this court find the said affidavit and counter affidavit are defective and order this application to be struck out cannot be a proper remedy as it was urged in the case above that will not 8 benefit any party even the court as the party will bring another application and to the court will be the issue of change of the number of the case only, and which will delay dispensation of justice. So according to the foregone reasons, this court is granting leave to amend the affidavit supporting the application by filing in the court a fresh and properly verified affidavit to support the chamber summons, so that the application can be heard and determined on merit. This will be filed in court within 7 days from the date of this ruling. It is so ordered. R.B. Massam JUDGE 31/03/2023 9