administratrix of estate of the late mtumwa selemani hawa mtumwa selemani vs the registered trustees of the evangelistic assemblies of god t kijitonyama church 2018 tz

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 268 OF 2016 THE ADMINISTRATRIX OF THE ESTATE, OF THE LATE MTUMWA SELEMANI (HAWA MTUMWA SELEMANI)................................................ APPLICANT VERSUS THE REGISTERED TRUSTEES, OF THE EVANGELISTIC ASSEMBLIES OF GOD (T) KIJITONYAMA CHURCH.................................. RESPONDENT RULING Date o f Last order: 02/11/2017 Date o f Ruling: 26/02/2018 Hon. Makuru. J. The applicant is seeking for extension of time to file an application for leave to appeal to the Court of Appeal out of time against the decision of this Court. The application has been made under Section 11(1) of the Appellate Jurisdiction Act, Cap 141 RE. 2002. It is supported by the affidavit of Hawa Mtumwa, the administratix of the estate of the late Mtumwa Selemani. In her counter affidavit, the respondent has attacked the application by raising a Preliminary Objection on a point of law that: "... affidavit supporting (sic) chamber application for extension o f time is incompetent and cannot be l acted upon by the Court as the deponent has not sworn or affirmed the affidavit". When the matter was called on for hearing the applicant was represented by Mr. Mark, learned counsel and the respondent enjoyed the legal services of Mrs. Rwechungura, learned counsel. Submitting in support of the Preliminary Objection Mrs. Rwechungura argued that, affidavits are governed by the provisions of Order XIX of the Civil Procedure Code, Cap 33 RE. 2002 and Section 8 of the Notary Public and Commissioner for Oaths Act, Cap 12 RE. 2002. She contended that these provisions of law require that affidavits should have a jurat which indicates that the affidavit has been sworn or affirmed because they are known to be written statements of facts which have been made under oath or affirmation before a competent Magistrate or Commissioner for Oaths. In line with the above cited provisions Mrs. Rwechungura stated that, in the present case the affidavit is incompetent and cannot be relied upon by the court as it is not shown in the Jurat if the affidavit was sworn or affirmed by the deponent. In reply thereto Mr. Mark contended that, there is no provision of law which requires the jurat of attestation to include the words "Sworn or affirmed at". Similarly, he argued that there is no provision which restricts the use of the words "Signed and Delivered" in the jurat of attestation. According to him, the inclusion of the said words in the jurat depends on the drafting style and nothing more. 2 In order to appreciate the nature of this Preliminary Objection, I think it is necessary to first define the term Affidavit. In the case of Chugulu and Others Vs. National Examination and Others, High Court Misc. Civil Cause No. 55 of 2005 (Dar es Salaam Registry, unreported) it was stated that: "An affidavit is a written document containing material and relevant facts or statements relating to the matters in question or issue and sworn or affirmed and signed by the deponent before a person or officer duly authorized to administer any oath or affirmation or take any affidavit" From the above cited authority, which I find to be persuasive, it is apparent that the affidavit ought to be sworn/affirmed by the deponent before the Commissioner for Oaths. It is thus, my considered view that it is important for the deponent to declare in the jurat of attestation that he/she sweared/affirmed the affidavit before the Commissioner for Oaths. Now, the issue to be determined here is whether the words "Signed and Delivered" carries the same meaning as "Sworn or Affirmed". In other words, whether these words can be used interchangeably. I am of the view that they do not carry the same meaning and cannot be used interchangeably. 3 For the foregoing, I find this affidavit to be incurable defective. I hereby struck out the application with costs. C.W. Makuru JUDGE 26/ 02/2018 Ruling delivered in court this 26thday of February, 2018 in the presence of Ms. Glory Francis, learned counsel for the Applicant and Mrs. Cresencia Rwechungura, learned counsel for the Respondent. C.W. Makuru JUDGE 26/ 02/2018 4