Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 19744 OF 2024 (Arising from the decision ofthe High Court ofTanzania (Sumbawanga District Registry) at Sumbawanga in Civil Appeal No. 3 of 2023) IUCN NATIONAL COMMITTEE FOR NETHERLANDS FOUNDATION............................................................................ APPLICANT VERSUS KAENGESA ENVIRONMENTAL CONSERVATION SOCIETY (KAESO)................................................................................... RESPONDENT RULING 25 March & lit April, 2025 MRISHA, J. This is a ruling in respect of the preliminary objection against the filed application for extension of time made by way of chamber summons and supported by the affidavit of Jacob Kaissy, the applicant’s advocate. The objection which was basically filed by the respondent though her advocate who is Mr. Kurwa Hezron Ngunga, learned advocate, had two points of law, but later she added another point of law to make a total of three points which allege that: 1. The application is incompetent and bad in law for being omnibus, 1 2. That, the affidavit in support of the Application is incurably defective for not being signed by the deponent, and 3. That, this honourable court has no jurisdiction to extend time within which the applicant may file an appeal to the Court of Appeal of Tanzania. Both parties are legal entities and were represented by their learned advocates. Whilst the respondent enjoyed the legal services of Mr. Kurwa Hezron Ngunga, learned Advocate, the applicant had it from Mr. Daniel B. Welwel, also learned Advocate. The objection was heard by way of written submissions following the consensus of both parties through their learned advocates. The respondent, as per the usual practice, was the one to take the floor in making his submission in chief in support of the raised preliminary objection, followed by the applicant whose rival response to her counterparty’s submission, prompted the former to file her rejoinder submission. Hence, this ruling. As indicated above, the respondent’s preliminary objection carries with it a total of three points which have to be considered and determined by this court based on the parties’ submissions. Having gone through the said points, parties’ rival submissions, the cited provisions of the laws as well as 2 the authorities referred to me by the learned counsel, I will proceed to determine whether or not the raised objection has merit. Submitting on the first limb of objection, Mr. Ngunga argued that in filing the instant application under 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA), the applicant made two prayers to the Court one being for extension of time within which to lodge a Notice of appeal and secondly, to extend time for the applicant to lodge an appeal to the Court of Appeal of Tanzania. He also argued that there is no hard and fast rule of practice developed by Courts to discourage combination of two or more distinct reliefs in one application, but what the Courts discourage, is combination of several reliefs in one application which are governed by different law with different yardstick or timelines, as it was held in the case of Tanzania Knitwear Ltd vs. Shamshudin Esmail [1989] T.L.R 48. He further argued that the law is settled that the prayers qualify to be combined in one application if they are not opposed to each other or made under different laws, the stance which was taken by this Court in Rutunda Masole vs Makufuli Motors Limited, Misc. Labour Application No. 79 of 2019, HCT at Mwanza (unreported). 3 Having cited the above authorities, the respondent’s counsel took a stand that what were made by the applicant, are two prayers completely with different timelines to wit; the determination of the second prayer which is extension of time to lodge appeal to the Court of Appeal depends on the outcome of the first prayer which, thus goes contrary to what was stated in the case of Rutunda Masole (supra) and Charles Sangabo vs. Faustine Fidelis & Another, Misc. Civil Application No. 701 of 2017 (High Court of Tanzania at Dar es Salaam (unreported). Not only that, but also it was the submission of the respondent’s counsel that determination of the second prayer which is extension of time to lodge an appeal to the Court of Appeal, depends on the outcome of the first prayer with distinct consideration in their determination. Furthermore, the learned counsel submitted that, the enabling provision of the law cited by the counsel for the applicant which is section 11 (1) of the AJA, does not provide a room for the applicant to combine two or more prayers in one application, rather it only confers the High Court with a power to extend time to give notice of intention to appeal and not extension of time to lodge an appeal to the Court of Appeal under Rule 10 of the Tanzania Court of Appeal Rules. 4 With all the above in mind, the respondent’s counsel submitted that the prayers sought by the applicant ought to have been filed separately instead of being lumped in one application before this court which it to be an omnibus application. And, in regards to the third point of preliminary objection, Mr. Ngunga submitted that this court has no jurisdiction to extend the time within which the applicant in this case can lodge her appeal to the Court of Appeal as the same is only vested to the Court of Appeal under Rule 10 of the Court of Appeal Rules, 2009. To cement more on that point, the learned counsel submitted, it is a trite law that jurisdiction is a creature of the statute and in that respect, the law governing appeals to the Court of Appeal does not vest power to the High Court to extend time for filing an appeal out of time to the Court of Appeal, as it was held in the case of Meet Singh Bhachu vs Gurmmit, Civil Application No. 463/02 of 2018, Court of Appeal at Arusha (unreported) that: "...it is only applications of time outlined by the law as shown hereinabove, which should be applied in the High Court in the first instance, but thejurisdiction to determine an application for extension of time to appeal is in the Court” 5 Having submitted so, the respondent’s counsel argued that this Court has no jurisdiction to extend time to appeal to the Court of Appeal of Tanzania wherefore; he prayed to the Court to dismiss the application for want of jurisdiction and for being incompetent, as he argued in the first limb of objection. On the second limb, the respondent’s counsel submitted that the sworn affidavit in support of the application is incurably defective for not being supported by the deponent which is contrary to the requirement of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap 12 R.E. 2019 that a person must appear before the authorized officer to administer an oath. He also submitted that the affidavit in question purported to be sworn by one Jacob Kaissy in the jurat of attestation, is not signed by the deponent to evidence and confirm that the said person took an oath before the authorized officer which omission makes such affidavit incurably defective, as it was stated in the case of Director of Public Prosecutions vs Dodoli Kapufi & Another, Criminal Application No. 11 of 2008, CAT at Dar es Salaam. On the basis of the above submissions, the learned counsel urged the court to find that the present application in incompetent and struck it out with costs. Conversely, the counsel for the applicant opposed the objection by submitting in respect of the first limb of objection, that the same is misconceived because 6 the applicant’s application has only one prayer for enlargement of time within which to lodge notice of intention to appeal, which is made under section 11 (1) of the AJA. He added that the current application was not intended to be an application for extension of time for institution of an appeal to the Court of Appeal. It was also the submission of the learned counsel for the application that the argument that the instant application is duplex for containing duo prayers, is misplaced because the chamber summons filed by the applicant is only made under section 11 (1) of the AJA and not otherwise. Still on the first point of preliminary objection, the applicant’s counsel submitted that there is no specific law which prohibit the combination of more than one prayer in one application; what is discouraged by the Court is the combination of more than one application which are governed by different laws in one chamber summons. He referred the court to the cases of MIC Tanzania Limited vs Minister for Labour and Youth Development and Attorney General, Civil Appeal No. 103 of 2004 and Rutagatina C.L vs The Advocates Committee and Clavery Mtindo Ngalapa, Civil Appeal No. 90 of 2010 in order to cement his proposition. Regarding the second limb, Mr. Welwel submitted that jurat of attestation is one of the essential ingredients of any valid affidavit, as it was stated in the 7 case of Director of Public Prosecutions vs Dodoli Kapufi (supra) which set four ingredients of a valid affidavit including the statement or declaration of facts by the deponent, a verification clause, a jurat and the signature of the deponent and the person who is authorized by law either to administer the oath or affirmation. It was thus, his submission that the affidavit in support of the applicant’s application has all the essential ingredients of a valid affidavit as stipulated in the case of Dodoli Kapufi (supra), save for the deponent’s signature against the jurat of attestation. Despite that, the applicant’s counsel submitted that the omission complained of, is not fatal to the extent of affecting the validity of the affidavit in question because not every defect in the jurat of attestation has the effect of rendering the whole jurat incurably defective, rather it is only serious defects which may cause the jurat of attestation to be incurably defective. To bolster his position, the learned counsel cited the case of Linda Cosmas vs George Shida & Others (Civil Application No. 183/8 of 2020) [2023] TZCA 17439 (21 July 2023). Finally, the learned counsel for the applicant submitted that the applicant’s application is competent before the court and the preliminary objection raised by the respondent is unfounded. Hence, it was his prayer to the court that the 8 said objection be overruled with costs and the instant application be heard on merits. In rejoinder, Mr. Ngunga first reiterated on what he submitted in chief in support of the preliminary objection and secondly submitted that the argument raised by the applicant on the first point of preliminary objection is misconceived and unfounded as it is certain that literally, the applicant’s chamber summons entails that the applicant is praying for this court to extend time within which to lodge a notice of appeal and an appeal to the Court of Appeal of Tanzania out of time, as it appears at item (i) of the chamber summons which forms the application at hand. The learned counsel also submitted that the argument by the applicant’s counsel that the instant application was not intended to be an application for extension of time to institute an appeal to the Court of Appeal is an afterthought because the applicant intended to have only one prayer, the same should have been reflected in the applicant’s chamber summons. The learned counsel thus, maintained that the applicant’s application contains two distinct prayers which are not only governed by different provisions of the law, but also are granted by different courts which makes the application at hand to be omnibus, hence incompetent. To cement that position, reference 9 was made to the decision of this court in William Kipe v. Specioza Majura, Misc. Land Application No. 27 of 2022, HCT at Sumbawanga, unreported. Not only that, but also the respondent’s counsel submitted that this court has no jurisdiction to extend the time within which the applicant can lodge the appeal to the Court of Appeal. Thus, since the same has been prayed through the applicant’s application, it was his prayer that the court be pleased to struck out the said application with costs. Further to that, it was the submission of the learned counsel that since the applicant’s counsel did not dispute the fact that the jurat is not signed by the deponent, he does not agree with the former’s stance that failure of the deponent to sign in the jurat of attestation does not render the affidavit under scrutiny incurably defective. Likewise, he submitted that the cited case of Linda Cosmas George Shida & Others (supra) is distinguishable to the case at hand as the complained defect in the said case was that the applicant did take an oath instead of affirmation, while the one referred in the affidavit under discussion, is on failure of the deponent to sign the jurat of attestation. He added that the position of the law as stated in the case of Director of Public Prosecutions vs Dodoli Kapufi (supra), is that although not every defect in the jurat of attestation renders the affidavit incurably defective, total absence of the jurat, or omission to show the date and place where the oath 10 was administered or the affirmation taken, or the name of the authority and/or the signature of the deponent against the jurat of attestation, renders the affidavit incurably defective. Based on the above authority, the counsel for the respondent submitted that the omission to sign the affidavit by the deponent means that the oath was not taken by the deponent to certify what is stated in the said affidavit. Having so submitted, the learned counsel humbly prayed to this court to struck out the applicant’s application with costs. Starting with the first point of preliminary objection, it is a trite law that lumping two or more unrelated prayers in one application renders the application to be omnibus. (See; Mohamed Salimin versus Jumanne Omari Mapesa, Civil Application No. 103 of 2014 (CAT) and Amos David Kassanda versus Commissioner for Lands and Another, Misc. Land Application No. 457 of 2020 HC-DSM, (all unreported). Despite that, the contentious issue between the parties here is whether the application at hand contains two prayers with distinct provisions of the law and consideration, as claimed by the respondent’s counsel. To be in a good position, I will let the relevant part of the application to speak by itself, as hereunder: 11 “'CHAMBER SUMMONS (Made under section 11(1) ofthe Appellate Jurisdiction Act Cap 141 R.E 2019 and any other provisions of law) LET ALL PARTIES CONCERNED appear before the Honourable Judge...sitting in Chamber..at the High Court of Tanzania, Sumbawanga District Registry at Sumbawanga, on the...at..O'deck in the forenoon, or soon thereafter as the Counsel for the Applicant shall be heard on the application by the Applicant for the following orders: - i) This Honourable Court may be pleased to extend time within which the Applicant can lodge Notice of Appeal and an Appeal to the Court of Appeal of Tanzania out of time against the Judgment and Decree of the High Court of Tanzania in Civil Appeal No. 3 of2023...” By a quick look, especially on item i) of the said excerpt, it appears that there are two prayers fronted by the applicant; one, is intended to please the court to extend time within which the applicant can lodge Notice of intention to appeal to the Court of Appeal of Tanzania, and; two, to enable the applicant to lodge her appeal to the higher Court. However, I am of the view that that is not what the applicant intended to bring to this Court because first; had she intended to mean she has two 12 prayers to be determined by this court, she would have also cited the provisions of Rule 10 of the Court of Appeal Rules, 2009 which however, is not applicable to the applications before this court because application to extend time of appealing to the Court of Appeal, is in the exclusive jurisdiction of the Court of Appeal. (See; Henry Muyaga vs Tanzania Telecommunication Company Ltd, Civil Application No. 8 of 2011. In the present application, it is only section 11 (1) of the AJA which has been cited by the Applicant as the enabling provision of the law. Hence, the argument that the instant applicant is duplex for containing two prayers with different provisions of the law, is unfounded. Also, I have gone through the written submission of the applicant and found nowhere it is indicated therein that apart from seeking an order of this court to grant her extension of time within which to file a Notice of intention to appeal to the Court of Appeal, the applicant also prays to this court to grant her extension of time to appeal to the Court of Appeal. What I have captured from the present application, is that the applicant has just expressed her ambition to file her appeal with the Court of Appeal in the event her application to file a Notice of intention to Appeal to the Court of Appeal, is allowed by this court. 13 I say so because in terms of Rule 90 (1) of the Court of Appeal Rules, it is a Notice of Appeal which initiates an Appeal to the Cout of Appeal and the same has to be filed by the aggrieved party within sixty days of the date when the notice of intention to appeal was lodged. Being aware that she is late and cannot automatically lodge her Notice of intention to appeal to the highest Court, the applicant opted to file with this court an application under section 11 (1) of the AJA in order to be allowed to lodge a Notice of Intention of appeal to the Court of Appeal out of time. This means that up to this moment, the applicant cannot be said to have delayed to appeal to the Court of Appeal to necessitate her to apply for extension of time to appeal thereto because as her counsel has correctly submitted, the time within which to appeal to the Court of Appeal is reckoned from the date when the notice of appeal was lodged. It is due to the foregoing reasons, that I find the first limb of the respondent’s application to be unmerited. This takes me to the next stage of determining the merit or otherwise of the second legal point. The respondent’s counsel has attacked the affidavit in support of the present application for being incurably defective due to the fact that the jurat of attestation in that affidavit, has not been signed by the deponent. To the counsel for the applicant, while admitting that the said part of the 14 affidavit has truly not been signed by the deponent, he is of the view that such defect is curable. On my part, I have examined the said affidavit and found that it does not bear the signature of the deponent against the jurat of attestation, as the counsel for the respondent has submitted. The only question that comes to the focus, is whether such defect may render the said affidavit incurably defective. The general rule as per the case of Director of Public Prosecutions vs Dodoli Kapufi (supra), is that total absence of the jurat, or omission to show the date and place where the oath was administered or the affirmation taken, or the name of the authority and/or the signature of the deponent against the jurat, renders the affidavit incurably defective. However, as I gather from the decision of the Court of Appeal in Linda Cosmas (supra), not any irregularity would have a serious effect of rendering a jurat of attestation incurably defective. In amplifying more after reading section 8 of the Notary Public and Commissioners for Oaths Act, together with the authorities referred in Dodoli Kapufi’s case (supra), their lordship Justices of Appeal had the following to say: “...not any irregularity would have a serious effect of rendering a jurat of attestation incurably defective. In very clear terms, they are to the 15 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 ofattestation 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 is mine] Guided by the above authority, I am of the view that the omission to append the signature of the deponent against the jurat of attestation, although such omission should be discouraged, is not a fatal defect which renders the jurat of attestation and the affidavit as a whole incurably defective. The reasons for holding so are not farfetched. First, looking at the decision of the Court of Appeal in Linda Cosmas (supra), it is apparent that failure to show when, where and before what authority (whom) the affidavit was taken which are the only serious deficiencies. The affidavit under scrutiny clearly shows that the same was taken on 5th day of August, 2024 at Dar es Salaam before Ms Kavola Semu, learned Advocate (the Authority). This 16 means therefore, that none of the serious deficiencies, as outlined in the case of Linda Cosmas (supra), can be found in that affidavit. Secondly, the complained omission in this case is only on the deponent’s failure to append his signature against the jurat of attestation, but as I have pointed out before, that omission is not one of the serious deficiencies which may render the said affidavit to be incurably defective. Also, in order to have a good understanding, it is important to draw a line/distinction between the words “And” and “And/or”, as the same have different meanings. The word “And” means a conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first. It also entails a conjunction used to join two words, phrases, parts of sentences, or related statements together. (See: Black’s Law Dictionary, 8th Edition., at page 112 and Cambridge Advanced Learner’s Dictionary, 4th Edition). On the other hand, the word “And/or” is normally used to mean that either one of two things or both of them is possible. Looking at the meanings of those words, one may find that the latter does not necessarily mean that two things must go together as opposed to the former in which two referred things must go together. 17 In Dodoli Kapufi’s case (supra), it was stated inter alia that: “Total absence of the jurat, or omission to show the date and place where the oath was administered or the affirmation taken, or the name ofthe authority and/or the signature ofthe deponent against the jurat, renders the affidavit incurably defective.” From the above excerpt, is apparent that by using the words “And/or”, the affidavit may still be valid if it shows the name of the authority before which the same was taken, although the omission to show the signature of the deponent need be discouraged by those administering oaths or taking affirmations. I am fortified in that position by the case of Linda Cosmas (supra) in which it was stated that: "In very clear 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 defciencies which render a jurat of attestation and an affdavit as a whole incurably defective”[Emphasis is mine] Reverting back to the case at hand, since the omission complained of is not one of the serious deficiencies mentioned in the case of Linda Cosmas 18 (supra), it is my firm view that such defect cannot render the affidavit incurably defective. The foregoing therefore makes the second point of preliminary objection to crumble. In the third legal point, the respondent’s counsel has submitted that this court has no jurisdiction to extend time within which the applicant may file an appeal to the Court of Appeal. In my opinion, that point cannot labour me much because as I have alluded earlier while deliberating on the first legal point, the applicant’s application contains only one prayer which is for extension of time within which to lodge a Notice of intention to appeal to the Court of Appeal. Also, throughout his submission, the counsel for the applicant has not told the court that his client prays for extension of time within which to lodge an appeal to the Court of Appeal. It has to be recalled that it is only the Court of Appeal which has jurisdiction to extend time of appeal from decision of the High Court in terms of Rule 10 of the Court of Appeal Rules, 2009. Thus, based on the foregoing reasons, it is my view that the third point of preliminary objection must also fail for want of merit. 19 In the premises, I am of the settled view that the present application is competent before the court and, the preliminary objection raised by the counsel for the respondent is without merit. Hence, I overrule it with costs. It is so accordingly ordered. A.A.Mrisha Judge 11.04.20 DATED at SUMBAWANGA this 11th day of Mris Judge .04.2025 20