HIJARI SAIDI 2222 EDITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI CIVIL REFERENCE NO. 14684 OF 2024 (Arising from Babati District Land and Housing Tribunal taxation cause No. 249 of2023). HIJARI SAID MSUYA (Suing as an Administratix of Said Msuya).......................... APPLICANT VERSUS BAKARI SAAD.................................................................. RESPONDENT RULING 7* August & 19h September, 2024 Kahyoza, J.: Hijari Said Msuya (the applicant) filed civil reference against Bakari Saad (the respondent) seeking this court to reconsider the ruling of the taxing officer. The chairman of the district land and housing tribunal for Babati taxed the respondent's bill of costs at Tzs. 1,280,000.00 in the favour of Bakari Saad, the decree holder. Aggrieved, Hijari Said Msuya instituted the current application. Before the application was heard, Hijari Said Msuya, the respondent raised three points of preliminary objection that- (i) the reference is incompetent for contravening Order XIX rule 3(1) of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC); i (ii) the reference was bad in law on account of its jurat of attestation to the affidavit in support of the application contravened with sections 5 and 10 of the Oath and Statutory Declaration Act, [Cap. 34, R.E 2019]; and (iii) the civil reference was incompetent as it was filed without supporting documents. Mr ndonjekwa, appeared for the respondent and Mr. Samson Rumende appeared for the applicant. They argued the preliminary objection orally. Is the application incompetent for contravening Order XIX rule 3(1) of the CPC? The respondent's advocate submitted that the reference is incompetent for contravening Order XIX rule 3(1) of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC). He argued that the affidavit supporting the application demonstrates the deponent as the applicant's legal representative, one Samson Rumende and at some point, the same affidavit shows that the deponent is the applicant. The applicant's advocate conceded to the contention that the affidavit showed that both the applicant's legal representative and the applicant as deponents. However, he was quick to submit that, those were clerical errors. He added that the intention was to show that the 2 Hamisi (supra). I read both the provision of the CPC referred to by the respondent's advocate and the case the applicant's advocate cited. It was the respondent's advocate's contestation that the application contravened Order XIX rule 3(1) of the CPC. The Order XIX rule 3(1) of the CPC states that- 3. -(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted: The affidavit depicts that the applicant and his advocate are deponents but the jurat of attention depicts that only the applicant's advocate is the sole deponent. The fact that the affidavit showed at different stage that both applicant and the applicant's advocate are deponents, it is difficult to tell who between the applicant and his advocate is able to prove the facts in the affidavit. It is true that the error is clerical but with far-reaching impact of rendering the affidavit defective for not clearly demonstrating the deponent who may be called upon to prove the facts in the affidavit, if such need arises. To my view there is no affidavit in law. I agree that looking at the affidavit the deponent may have omitted the word advocate, that does not clear the affidavit from glaring defect. The applicant's advocate referred to me to the case of Alliance One Tobbaco 4 Tanzania Ltd and Another vs Mwajuma Hamisi (supra), to my view, it is distinguishable from the facts at hand. The applicant in the case of Alliance One Tobacco Tanzania Ltd and Another vs Mwajuma Hamisi and Another (Mise. Civil Application 803 of 2018) [2020] TZHC 3663 (2 October 2020) omitted to cite or cited wrong enabling provision of the law. This Court (Mlyambina JJ having borrowed a leaf from rule 48 of the Court of Appeal Rules, allowed the applicant to insert the correct provision of the law. In the present case, the omitted words are not the provision(s) of the law but they are facts. I know no law which allows an affidavit to be amended to insert omitted facts. With due respect to the applicant's advocate, I strongly hold that Alliance One Tobbaco Tanzania Ltd and Another vs Mwajuma Hamisi (supra), is distinguishable from the present case. I therefore, uphold the first preliminary objection that the affidavit is defective for not indicating properly the deponent, who may be called upon to prove the facts in the affidavit, should need arise. Is the application incompetent for being supported by an affidavit with a defective jurat of attention? The respondent's advocate submitted that the jurats attestation did not demonstrate whether the attesting officer knew the deponent or a person he knew, introduced the deponent to him. He argued further 5 that the affidavit contravened sections 5 and 10 of the Oaths and Statutory Declaration Act, [Cap. 24 R.E 2019]. He cited the case of Amani Girls Home vs Isack C kamera, Civil Application No. 18/2024 CAT to support the preliminary objection. The applicant's advocate argued that it was true that the law prescribes the format of the jurat of attestation. He argued, however, that failure to comply with the prescribed format is not a fatal defect to cause injustice to the applicant. To support his contention, he cited the case of Meis Industries Company Limited v Exim Bank Tanzania Limited (supra). There is no dispute that the jurats attestation does not indicate whether the attesting officer knew the deponent or a person he knew introduced the deponent to him. Thus, the jurat of attestation is defective. I read the cases of Meis Industries Company Limited vs Exim Bank Tanzania Limited (Civil Application No. 70 of 2014) [2015] TZCA 542 (17 February 2015) I must confess, I did not find its relevance to the present case. The Court of Appeal in Meis Industries Company Limited vs Exim Bank Tanzania Limited while interpreting rule in 83(6) of the Court of Appeal Rules, held that- "The purpose of a notice ofappeal is to inform the opposite party in a proceeding, and the Court, of an aggrieved party's intention 6 to appeal whether against the whole or part of a decision. To achieve that aim the legislator has deemed it necessary to prescribe the minimum requirements of the contents ofeach notice ofappeal. ...Soin our view, ifa notice of appeal is in the prescribed form and contains the requisite information demanded in Rule 83(3), is lodged within the prescribed time, dated and signed by or on behalf of the intended appellant, that notice must be deemed to have substantially complied with Form D. The Court of Appeal held in Meis Industries Company Limited vs Exim Bank Tanzania Limited (supra) that a notice of appeal, which contains minimum information is deemed to confirm with the law. It reached that conclusion based on the law which was under consideration. The Court of Appeal was interpreting rule 83(6) of the Court of Appeal Rules, which provides the format of a notice of appeal but it did not demand total compliance with the format. It demanded substantial compliance. It reads - ”83(6) A notice of appeal shall be substantially in the Form D in the First Schedule to these Rules and shall be signed by or on behalf of the appellant We think that the catchword in this rule is "substantially”. According to the New Oxford Advanced Learners Dictionary (at p. 1531) that word means among others "...mainly, in most details, even if not completely..." 7 Section 10 of the Oaths and Statutory Declarations Act has wording different from rule 83(6) of the Court of Appeal and it does not for provide for substantial compliance with the format of the jurat of attestation. I wish to emphasis that Meis Industries Company Limited vs Exim Bank Tanzania Limited (supra) has no bearing to the case under consideration. It has been a position of this Court that parties must comply with section of 10 of the Oaths and Statutory Declarations Act. This Court held in Thomas John Paizon v. Khalid A. Nongwa, Mise. Land Application No. 954 of 2017, H.C. Land Division at DSM stated- "Under Section 10 of the Oaths and Statutory Declarations Act Cap. 34 R.E. 2002 it is mandatory that the statutory declaration complies with the form prescribed in the schedule and it must be stated and specified in the jurat of attestation whether the deponent was known to the Commissioner for Oaths personally or whether he was identified to him by a person personally known to the Commissioner for Oaths." I am alive of the position of the law that in a fit circumstance a court may allow the applicant to amend the affidavit to rectify the jurat of attestation. Thus, a defective jurat toes not render, the affidavit fatally defective. It may be amended. I will determine whether to allow the amendment or not at the end. 8 Is the application incompetent for want of necessary documents? The respondent's advocate submitted that the application was defective for want of necessary documents. He argued that the applicant did not attach a copy of the ruling or the order sought to be challenged. Referring to Jaabil Swalejhe Koosa and 4 Others v The Registered Trustee of the Islamic Solidarity Centre, Civil Ref No.08 of 2021, the respondent's advocate prayed the application to be dismissed. Mr. Samson Rumende, the applicant's advocate replied that the application was filed under order 7 of the Advocates' Remuneration Order 2015 G.N. No. 2015. He submitted that the order provides that a person aggrieved by the decision of the taxing officer, shall file an application for reference by way of chamber summons supported by an affidavit. The law is clear as to what documents must be annexed. He argued that the applicant complied with the law and that, the case cited by the respondent's advocate does not apply as the law is express. I had a quick glance at order 7 of the Advocates Remuneration Order 2015, which provides how to institute a reference. The order states in no uncertain term that the reference will be filed by an affidavit and supported by chamber summons. It does not state any other document to be annexed in support of the application. For clarity's sake, I quote it- 9 7.-(l) Any party aggrieved by a decision of the Taxing officer, may file reference to a judge of the High Court. (2) A reference under order (1), shall be instituted by way of chamber summons supported by an affidavit and be filed within 21 days of from the date of the decision. (3) The applicant shall within seven dear days of filing reference save copies all parties entitled to appear on such taxation. (4) For purpose of service under sub order (3), it shall be sufficient if the chamber summons has been endorsed and stamped by the Registry Officer. (Emphasis added) I am not prepared to hold the applicant accountable for failure to annex any document not provided for under law. I am aware of a fact that my brother Judge held that a person applying for reference must attach a ruling or the order he seeks to challenge. With due respect, I do not share the same views. I know the rules of procedure in our jurisdiction have put in a very simple procedure for filing a reference. The Court of Appeal Rules for instance allows an applicant to institute the application orally by praying to the Registrar after delivering the ruling to refer him to the Justice of Appeal or by filing a letter. I, therefore do not think, there is any need to make the procedure of filing the reference to this Court complicated. io It is for the above reason, with all due respect, I find myself not persuaded by the decision of my brother Judge in Jaabil Swalejhe Koosa and 4 Others v The Registered Trustee of the Islamic Solidarity Centre, (supra). I believe we ought to keep the procedure of filing the reference to this Court simple. There is no need to require the applicant to annex a copy of the ruling or the order sought to be challenged by way of the reference as it will be found in the court record. I overruled the third point of preliminary objection. Having upheld two points of objection, I do not find the order for amendment suitable to grant. The applicant's advocate ought to follow the laid down format when drafting legal instruments or else there is no meaning of providing the formats in the law. I am aware of the requirement of the principle of overriding objective as provided in our laws, however, in the present case where no one cannot tell who is a deponent, I will not invoke the principle to salvage the wrecking ship. For that reason, I strike out the application with costs. 11 Court: Ruling delivered in the absence of the parties and their advocates who could not connect to the virtual court. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 19. 9.2024 12