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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM REFERENCE NO. 18120 OF 2024 (Arising From Misc. Land Application No. 3916 of 2024, Land Division) HASHIMU UBWA MATOPE............................................ .....APPLICANT

VERSUS RAMADHANI YAKUBU NYAMLANI (Administrator of the Estate of the Late Yakubu Saidi Nyamlani)................................ RESPONDENT

RULING 21st to 26th November, 2024 E.B. LUVANDA, J This application is made under the enabling provision of Order 7(1),(2),(3) and (4) of the Advocates Remuneration Order, GN No. 264 of 2015, inviting this Court to determine this reference and quash the decision of the Deputy Registrar refusing an extension of time for the Applicant to file an application to set aside ruling and order in the Bill of Cost No. 175 of 2023, which was heard ex-parte after the Applicant's advocate defaulted to file a reply submission therefrom. In the affidavit in support of this application, the Applicant stated that the issue is whether the Respondent served the written submission to the Applicant or his advocate in time or at all so as to enable the Applicant to make a reply and file the same in court as per the Taxing Officer's order. He stated that the i Honorable Deputy Registrar has not established evidence to the effect that the Applicant was served with the Respondents submission in chief and failed to make a reply submission. He stated that the Respondent failed to serve the Applicant with the submission to enable the Applicant to make a reply submission and file the same in court, on that it is a sufficient to show an existence of a point of law of an illegality which in itself is sufficient for the Applicant to be granted extension of time to file an application for setting aside the

ruling in Bill of Costs No. 175 of 2023. In the counter affidavit, the Respondent stated that the Applicant has been changing reason as to why he did not file submission in the Bill of Costs No. 175 of 2023, in that in Misc. Land Application No. 3916 of 2024 stated was absent when scheduling order was set by the court, citing affidavit therefrom. That herein the Applicant stated that he was present on the date of scheduling order. That it was mutually agreed service will be via court where both parties successfully picked copies at the court premises, and therefore the submission in support of the Bill of Costs was dully served to the Applicant and if the Applicant was not served he could raise that concern at court before the decision was delivered. In the submission in chief, Mr. Stevens Kosi Madulu learned Counsel for Applicant reiterated the averments in the affidavit summarized above. He cited 2 the case of Lyamuya Construction Company Ltd versus Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010, TZCA at Arusha, to buff up his argument that there is an existence of point of law of an illegality as pleaded in the affidavit. In reply, the Respondent submitted in line of the averments in the counter affidavit, that the Applicant keep on changing stories as to why he did not file submission, for an argument that in

Misc. Application No. 175 of 2023 said because he was not present when the scheduling order was made, herein asserted that he could not file submission because he was not served with submission in chief. He submitted that the conduct of the Applicant to change stories in his sworn affidavits show that he is a person of untruth and he should not be trusted to the detriment of the Respondent. Going by the contents or averment in the affidavit in support of this reference, the Applicant deposed facts showing that the Respondent failed to serve the Applicant with the submission to enable the Applicant to make a reply submission and file the same in court, which according to him termed it as a point of law of an illegality which in itself is sufficient for the Applicant to be granted extension of time to file an application for setting aside the ruling in Bill of Costs No. 175 of 2023. 3 In the counter affidavit, the Respondent faulted the Applicant for changing reason as to why he did not file submission in the Bill of Costs No. 175 of 2023, in that in Misc. Land Application No. 3916 of 2024 stated was absent when scheduling order was set by the court, citing affidavit therefrom annexure Al. That herein the Applicant stated that he was present on the date of scheduling order. It is true that in annexure Al, the deponent asserted that the Applicant was never served after the Bill of

Costs No. 175 of 2023 was filed. He repeated the same facts that the Bill of Costs was heard and determined by the Taxing Officer without notice/summons being served to the Applicant herein. To my respective view, facts sworn in annexure Al make a total departure of what the same deponent deposed in the affidavit in support of this reference where at paragraph five the deponent deposed that on 11/10/2023 the Court ordered the Bill of Costs No. 175 of 2023 to be argued by way of written submission in the presence of both parties. The rule in practice is that, where the affidavit contains untruthful facts, cannot be acted upon to support the application. In Charles Gidanyesh vs Hanot Gidamurjang, Land Appeal No. 01 of 2022, HC Manyara, this Court speaking through Kahyoza, J ruled, 'It is dear as daylight that Charles Gidanyesh tied in his affidavit. The law is settled that an affidavit containing false information 4 cannot be relied upon by the Court to decide a matter. The Court of Appeal pronounced itself in... Kidodi Sugar Estate and 5 others v Tanga Petroleum Co. Ltd, Civil Application No. 110 of 2009, (both unreported), where it cited with approval its decision in Ignazio Messina vs Willow Investments SPRL, Civil Application No. 21 of2001 that: "An affidavit which is tainted with untruths is no affidavit at all and cannot be relied to support an application. False evidence cannot be acted upon to resolve any issue" With that remark, this reference cannot sail through. The decision of the taxing officer is upheld. 5