john marungi vs ushashi ginneries company ltd 2010 tzhc 211 21 september 2010

IN TJHE HIS COURT ORF THE UNITED REPUBLIC OF

TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA CIVIL APPEAL NO. 25 OF 2007 (Originating from the district Court of Bunda at Bunda in Civil Case No. 2 OF 2004) JOHN MARUNGI.................................. APPELLANT

VERSUS USHASHI GINNERIES COMPANY LTD... RESPONDENT

RULING 21 / 09/2010 NYANGARIKAJ. The applicant unsuccessfully filed a suit against the respondent for a claim of his terminal benefits at the district Court of Bunda at Bunda (hereinafter referred to as the trial court). Dissatisfied by the decision of the trial court, the appellant preferred the above appeal which was struck out by my sister Sumari, J. on 17th February, 2009 for being in competent. On 20th February, 2009, the appellant filed an application for extention of time to appeal out of time, but, on 16.6.2009 the Respondent filed a notice of Preliminary Objection, which is the subject of this ruling. When the matter came for hearing, the applicant appeared in person and the respondent was represented by Mr. Makowe, Learned Counsel. Mr. Makowe, submitted on the first objection that the jurat of the Affidavit supporting the application does not show the place where the Affidavit was attested in contravention of section 8 o f the Notaries Public and Commissioner o f oath Act (Cap. 12 R E 2002) and therefore it is defective. He referred me to the case of Ashura Abduikar Versus Director o f Tiiapia Hotel (CA), Civil Application No. 2 of 2005, Mwanza Registry (Unreported). The Learned Counsel for the respondent, also, told me that I cannot disregard the defect on the ground that the it is merely a technicalities than justice and referred me to the case of Registered

Trustees o f Joy in harvest Versus Hamza Sungura (CA) Civil Application No. 3 o f 2003, MZA Registry Unreported). Secondly, the Learned State Attorney submitted that the name of the commissioner for oath who attested the Affidavit has not be disclosed apart from the signature whose name cannot be easily detected by vision. He insisted that the defect is serious and also contravenes the provisions of section 8 of the Notaries Public and Commissioner o f oath Act (Cap 12 RE 2002). The Learned Counsel emphasized that the word "before whom"\n that Act connotes that the name of the commissioner for oaths has to be disclosed which is different from the word "who"where it was enough only to show the "title or status or designation of the Commissioner for oath. Further, he said that such requirement is essential taking into account that there are so many Magistrates at the court of resident magistrate. The Learned Counsel also referred me to the case of Fares Munema Versus Asha Munema (CA) Civil Application No. 9 OF 2003, DSM Registry, (Unreported) to support his argument. Mr. Makowe, insisted very strongly that this court should hold that the Affidavit supporting the application is incurable defective because the place and name of the magistrate is not indicated in the jurat. He said that once I find that the application is not supported by a proper affidavit, I should also rule out

that there is no application before this court as 3 mandatory provided for under Order XLIII rule 2 o f CPC and strike out the application with costs. In his short rejoinder, the applicant told this court that if the defect alleged is real, then he be allowed to correct it. Section 8 o f the Notaries Public and Commissioner for Oath Act (Cap 12 R E 2002) reads: "Every notary Public and Commissioner for oath before whom any oath or Affidavit is taken or made under this act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made" It is therefore vividly clear that the jurat of the Affidavit of the applicant, one John Marungi, supporting the chamber summons filed on 20.2.2009 does not state or show the date and before whom is was sworn. I agree with the Respondent's Counsel that the Affidavit is incurable defective, and sustain the objection raised by striking it out with no orders as to costs as the matter eminates from a labour dispute. However, considering that the applicant is a layperson and was not represented, I allow him if he still wishes, to bring a fresh application which complies with the law. <-ST"Application struck out.

31. M. Afijangdtika

JUDGE At Mwanza 21/ 9/2010 Date : 21/ 9/2010 ■ Coram : Hon. Nyangarika, J. Applicant: Present in person Respondent: Makowe - Adv. B/C : Rose