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IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE MISC. CIVIL APPLICATION NO. 25963 OF 2024 HAPPINESS EDIGIUS RUTINWA........................................... APPLICANT VERSUS VICTOR LAURIAN RUGAIGANISA................................... RESPONDENT RULING Date of last order: 06/12/2024 Date of Ruling: 18/12/2024 OMARI, J. This is a Ruling in respect of a Preliminary Objection filed by the Respondent, Victor Laurian Rugaiganisa against the Application brought by Happ ness Edigius Rutinwa seeking for this courts orders to extend time for her to appeal out of time. The Notice of the Preliminary Objection has three points that: 1. The affidavit of the Applicant contains false statements facts, assumptions, hearsay and opinion. 2. The affidavit in supporting the Application is incompetent for containing defective Jurat. 3. The Application is incompetent for containing defective verification clause. The preliminary objection was argued in writing, and a scheduling order was entered, and the parties complied. Mr. Gratian Mali of Adrean Law Chambers drew and filed the Respondent's submission. In his submission, Mr. Mali abandoned the third point of objection and then went to submit the remaining two points of objection commencing with the first one. He pointed out that it is a cardinal principle that an Affidavit serves as a substitute for oral evidence before the court; therefore, the facts dep used must be true. He further stated that an Affidavit that contains untruths is no Affidavit, pointing out that paragraphs 7 and 14 of the Applicant's Affidavit contain untruths. He explained that in the first statement in paragraph 7 the Applicant claims she became aware of the marriage arrangements for the first time on 29 October, 2024, when she heard an announcement in church. However, at paragraph 14, she states that she was supplied with a copy of the marriage announcement on 06 October,2024 and saw a second announcement of marriage between the Respondent and another person. Counsel argued that these two statements are false. The Applicant cannot be supplied with a copy of the marriage announcement on 06 October 2024 and remain unawa'e of the marriage until 29 October, 2024 when she heard an announcement. To augment his contention that an Affidavit that contains untruths cannot be eicted upon Counsel cited the Court of Appeal Case of Jaliya Felix Rutaihwa v. Kalokola Bwesha And Cecelia Boniface Shiyo, Civil Application No. 392/01 of 2020 which was cited in Grant of Letters of Administration Pendenteiite&j Donath Elias Mrema, Misc. Civil Application No. 7 of 2123. Mr. Mali concluded on the first point of objection stating since the Affidavit in this Application cannot be admitted as evidence for containing untrue statements thus, prayed the Application to be dismissed with costs. Submitting on the second point of the objection Mr. Mali contended that the Application is supported with an Affidavit that contains defective jurat of attestation therefore it contravenes the mandatory requirement of section 10 of the Oaths and Statutory Declaration Act Cap 34 R.E 2019. It was his submission that the Commissioner for Oath administered the oath in the applicant's affidavit and failed to ascertain how he got to know the deponent, whether he knew the deponent personally or he was introduced by Mr. Nimrod Msemwa. Hence according to him, the jurat contravenes both section 10 of the Oaths and Statutory Declaration Act Cap 34, and the decision in W iziri Bukuku v.Halima Kondo, Misc. Land Application no. 911 of 2018 where this court cited the cases of Salma Said Mang'uro v. Mohamed Amiri, Misc. Civil Application No. 776 of 2018 and Tanzania Railway Corporation and Another v. Reuben Kyengu, Labour Application No. 104 of 2021 which were also of this court. Counsel concluded his submission for the grounds of the preliminary objection praying that this court finds it reasonable to dismiss this Application with costs for being tainted with the errors and defects in the Affidavit which go to the root of the matter. And, in such circumstances, the same cannot be cure j by the principle of overriding objective. When it was his turn, Mr. Nimrod Msemwa of BWB Attorneys who drew and filed the Applicant's submission commenced his submission stating that the points raised by the Respondent's counsel are unmeritorious and deserve to be dismissed. As regards the first point of objection he argued that the Respondent did not cite any paragraph in the Applicant's Affidavit which contains assumptions, hearsay or opinion statements as he alleges rather the Respondent quoted paragraphs 7 and 14 of the Applicant's Affidavit to show untrue statements only. He went on to explain that what was meant in paragraph 7 of the Affidavit was 29 September, 2024 and not 29 October, 2024. He further explained that the first date was a Sunday thus it could not have been the second date which was actually a Tuesday. Counsel further explained that this was a slip of a pen as he went through the time various course of events including that even the Application was filed on 22 October,2024 before the 29 October 2024 which was written in the Afficavit. Counsel cited the case of Elias s/o Lucas v. Republic, Criminal Appea No. 358 of 2020 [2023] TZCA 17397 where the Court of Appeal provided for the slip of the pen rule to mean there can be at times one wanted to write something and instead wrote the other thing by mistake, as in this case. Mr. Msemwa then submitted that the cases Jaliya Felix Rutaihwi v. Ka Io koi a Bwesha And Cecelia Boniface Shiyo (supra) and Grant of Letters of Administration Pendente Ute By Donath Elias Mrema (supra) cited by the Respondent's counsel are distinguishable to the present Application due to the fact that the untrue statement explained in the cited case was that the Applicant who sworn the affidavit is not the one who verified the paragraphs in the verification clause. Furthermore, counsel argued that this court can be guided by the principle of overriding objective as articulated in section 3A and 3B of the Civil Procedure Code, Cap 33 RE 2019 and the case of Fatuma Salum Hamis v. Selum Abdallah Jogaya and two others, Misc. Civil Application No. 528 of 2021, [2021] TZHCLandD 455. Mr. Msemwa then concluded that the first point of objection is devoid of merit. Segueing to the second limb of the preliminary objection which state that the Affidavit in supporting the Application is incompetent for containing a defective Jurat, thus, offending section 10 of the Oath Statutory Declaration Act. Counsel submitted that the Jurat expressly provide that the deponent who is the Applicant was introduced to the commissioner for oath who attested the Affidavit from the introduction of Nimrod Msemwa. He argued that this cannot make the Affidavit to be incurably defective. Counsel explained that there are several cases that have resolved this issue that failure to indicate in the Jurat of attestation whether the deponent is known by the commissioner for oath or is introduced to him by another person is not fatal. He cited Linda Cosmes v. George Shida and Two Others, Civil Application No. 183/08 [2023] TZCA 17439 and Beatrice Mbilinyi v. Mabkhut Shabiby, Civil Application No. 475 of 2020 [2021] TZCA 79. Mr. Msemwa then argued that the cited cases of Waziri Bukuku v.Halima Kondo (supra) and Tanzania Railway Corporation and Another v. Reuben Kyengu (supra) are distinguishable to the present case stating they are of the High Court and this court is not bound by them while the ones he cited are of the Court of Appeal thus binding to this court. He concluded with a reference to the case of Hemed Said Amri v. Ally Amri Said, Civil Application No. 135 of 2017 [2023] TZCA 17294 wherein the Court of Appeal was of the view technicalities should not get in the way of justice. Counsel then prayed for the raised points of objection to be overruled. Having gone through the rival submission of counsel there is only one issue for this court's determination; that is whether the raised grounds of prelim nary objection are meritorious and if so what would be the way forward. As regards the first point of objection, the Respondent is asserting tha: the Affidavit supporting the Application contains untruths to this end he has identified two paragraphs that is 7 and 14. Having read the two paragretphs one can see the discrepancy in the dates written reflecting when the Applicant became aware of the Respondent's intended marriage. In the first paragiaph she refers to 29 October, 2024 and in the second one she refers to 06 October, 2024. Mr. Mswemwa has explained it as a slip of the pen and has cited the case of Elias s/o Lucas v. Republic (supra) in which the court of appeal neld that citing section 154(1) (9) of the Penal Code instead of section 154 (1) (a) amounted to a slip of the pen more so because the appellant was not prejudiced as the charge was read to him. In the present matter, the only question to ask is, to what extent the discrepancies in the dates can cause injustice or occasion failure of justice. Applying the wisdom of the Court in Elias s/o Lucas v. Republic (supra) to the current matter I am of the view that the reference to 29 October, 2024 was not intended to be a falsehood as in the same Affidavit the Appl cant annexed a copy of the bans that is dated 06 October, 2024. See also the case of f Leila Jalaludin Haji Jamat v. Shaffin Jalaludin Haji Jamal, Civil Appeal No. 55 of 2003. In that regard I find the first point of objection to be unmeritorious. The second point of objection revolves around a defective jurat of attestation in the Applicant's Affidavit in support of her Application. The Respondent is stating that by not crossing out the words "who is known to me personally/" which rendered the same to read "who is known to me personally/identified to me by Nimrod Msemwa, the latter being known personally". In the cited case of Linda Cosmas v. George Shida and Two Others(supra) when dealing with a situation where a deponent was said to have sworn and affirmed a1: the same time for one of them was not crossed had this to say: "/I reading of section 8 of the Act and the cited cases reveals that not any irregularity would have a serious effect of rendering a jurat of attestation incurably defective. In very dear terms, they are to the effect that it is only failure to show when, where and before what authority (whom) the affidavit was taken which are the only serious deficiencies which render a jurat of attestation and an affidavit as a whole incurably defective subject to be expunged. It therefore goes without saying that the defect complained of by the applicant is not one of such serious omissions. The applicant's complained omission, although its omission should be discouraged, is not fatal affecting the validity of the affidavit in reply." [Emphasis supplied] Furthermore, in the case of Beatrice Mbilinyi v. Mabkhut Shabiby (supra) the Court of Appeal was of the view that since the attesting officer did not indicate that the deponent was introduced to him by someone else, it means that he knew her personally. In this case the attesting officer indicated who introduced the dependent to him thus, by necessary implication he did not know her personally. This point of objection also fails. Consequently, the preliminary objection is without merit and therefore overruled. , Due to the nature of this matter, I make no order as to costs. It is so ordered. Ruling dated and delivered 18th December 2024 in presence of Winnie Mandele who is holding brief for Nimrod Msemwa and Revocutus Mathew advocates for the Applicant and the Respondent respectively.