20190221 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (OAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO 517 OF 2017 (Originating from Matrimonial Appeal No. 7 of 2017 of Morogoro District Court and Civil Case No 4 of 2017 at Chamwino Primary Court)

BETWEEN JAMILA AMER ...........................................................APPLICANT AND SIASA OMARY ........................................................ RESPONDENT

RULING Date of last Order: 6/12/2018 Date of Ruling: 19/2/2019 Munisi,J The Applicant, Jamila Amer was the wife of one Siasa Omary up to 30/06/2017 when the District Court of Morogoro declared the said marriage dissolved and issued a divorce to the parties. Initially, the Applicant instituted Matrimonial proceedings at Chamwino Primary Court seeking divorce and other consequential reliefs. Upon hearing the evidence presented by the parties the said court made a finding· that the relationship between the respective parties did not constitute a valid marriage and declared the alleged 1 marriage a nullity. Surprisingly, despite such finding, the court proceeded to make an order for the distribution of Matrimonial assets. Aggrieved by the decision, applicant appealed to the District court which allowed her appeal partially by finding that the relationship between the parties constituted a valid marriage consequent of which it issued a divorce and varied a bit the distribution order. It appears the applicant was still dissatisfied with the success yielded hence desirous to pursue a 2nd appeal, however, due to the delay in instituting the appeal timely, the instant application has been preferred to obtain court's leave. She has moved the court under the provisions of section 14 (1) of the Law of Limitation Act and section 95 of the Civil Procedure Code Cap 33 R.E 2002 (CPC) upon being served with the application, the Respondent opposed it through a counter affidavit in addition of which he lodged a Notice of Preliminary objection to the effect that: - 1. That, the application is bad in law for citing wrong provisions of law.

11. That, the affidavit is totally defective for lack of proper attestation. Before the hearing, it transpired that the Respondent had passed away. After seeking court's leave, the appointed administrator was duly impleaded in the proceedings and took over from the deceased. Regard being heard to the status of the applicant who is lay and had no representation, on 6/12/2018 the court granted 2 leave to parties to argue the preliminary objection through written submission. Both sides filed their written submission within the time frames set by the court and I thank them for that. From the submission filed by the parties; it is the Respondent's strong submission that the Court has not been moved as the provisions of the Civil Procedure Code cited by the applicant in her chamber summons are inapplicable to Matrimonial proceedings. In that regard, the learned counsel for the Respondent argued that by citing the provisions of section 95 of the CPC, the court has not been clothed with the requisite jurisdiction. On her part the applicant opposed the objection arguing that the provisions she cited are proper and they vest the court with jurisdiction. With regard to the 2nd point of objection, the Respondent's counsel argued that the applicant's affidavit is defective due to improper attestation bf the jurat of attestation. On her part the Applicant argued that the affidavit is proper

because the rubber stamp on the jurat of attestation is not part of the affidavit. I have closely considered the two points of objection raised by the Respondent; in my view the 1st point of objection is devoid of merit because the Applicant has cited the provisions of section 14 { 1} of the Law of Limitation Act which moves the court to issue the order sought. In my view since the proper provision has been cited, the court has been properly moved, I am thus entitled to ignore the 3 '1'. other provision cited which is superfluous. The 1st ground of objection is thus without merit and is hereby overruled. With regard to the 2nd ground of objection, having scrutinized the Applicant's affidavit, it is glaring that the jurat of attestation bears a rubber stamp signifying only that the document is a true copy of the original. The same does not bear the rubber stamp of the commissioner for oaths/notary public who attested the said affidavit. The same bears the name of one Khadija Shaban Juma who has put her name as the commissioner for oath. From the contents of the jurat as they appear on the applicant's affidavit, it is correct to say that there is nothing on it to establish the authenticity of the attesting officer as a notary public or commissioner for oaths. The Court of Appeal while deliberating on the import of section 8 of the Notaries Public and Commissioner for Oaths Act

Cap 12 RE 2002 as amended in the case of Seth Japhet Vs. Nicholaus Mero, Civil Application No. 457 of 2017 (Unreported) made the following pertinent observation: - " ... Section 8 of the Act makes it clear that a jurat should show when, where and before what authority (whom) the affidavit was made. The authority who is usually a Notary Public and/or Commissioner for oaths ... " (emphasis supplied) 4 From the above authoritative principle, I am satisfied that in the absence of the appropriate stamp authenticating the name and authority of the person who attested, the affidavit is defective and it falls short of meeting the requirements of section 8 of Cap 12 (supra). The 2nd ground of the preliminary objection is thus meritorious and I uphold it. In the event the 2nd ground of preliminary objection has merit and is upheld. Consequently, the application is struck out. Due to the nature of the proceedings which arise from matrimonial proceedings, I make no order as o costs. A. J 21/ Ruling delivered in Chambers in the presence a Cypriano Silungwe, learned counsel for the ent and in the presence of the Applicant, this 21/2/2019. 5