final ruling JULIUS ALBERT MWASE TANZLII

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI

AT MOSHI MISC. APPLICATION NO. 8889 OF 2024 (Arising from the decision of the High court of Tanzania at Moshi PC probate and administration appeal No. 5 of 2022, decision of the District court of Moshi at Moshi in Probate appeal No 3 of 2022 and originating from Moshi urban primary court Probate and Administration Cause no 169 of 2021) JULIUS ALBERT MWASE………………………………………......APPLICANT

VERSUS HAMIS OMARY MWASE………………………………………….RESPONDENT

RULING 17th October & 24th December, 2024. A.P. KILIMI, J.: By way of a chamber summons supported with affidavit, the applicant herein Julius Albert Mwase brought this application praying for extension of time to lodge an application for certificate of a point of law to the Court of Appeal. The respondent has contested this application as evidenced by his affirmed Counter affidavit. The respondent also filed three objections that the application is incompetent on the following grounds; a) It is based on fatally defective affidavit containing untruths. b) It is based on fatally defective affidavit containing defective jurat of attestation. c) It has failed to cite the relevant provision of the law. 1 When this matter was placed before me for hearing of the said objection Ms. Lilian Filemon learned advocate appeared for the respondent whereas Mr. Asubuhi John Yoyo learned advocate represented the applicant. Both agreed the same be argued by way of written submissions. Arguing in support of the Preliminary objections, Ms. Lilian submitted that the application was fatally defective as it was based on a fatally affidavit containing defective jurat of attestation. She argued that the applicant affidavit did not indicate on what date the oath or affidavit was taken or made. She referred to section 8 of the Notaries Public and Commissioner for Oaths, Cap 12 R.E 2019 on what shall be

indicated on affidavit to include name, place and date the oath or affidavit was taken or made. She also made a reference to the decision of Dpp vs. Dodoli Kapufi &Another, Criminal Application No. 11/2008 CAT at Dar es salaam on three important matters in which the Commissioner for Oaths must indicate. Submitting further, she said that in the applicant affidavit there were no dates indicated in a jurat as to when the oath was taken and no any indication as to whether the Commissioner for oaths knew the deponent or was introduced to him by another person. Thus such 2 omission, in her view renders the affidavit incurably defective as per the decision of D.P. Shapriya & Co. Ltd vs, Bish International B.V [2002] E.A 47. Ms. Lilian added that since the affidavit served to them were undated and the one filed in court was dated, still the respondent in her opinion was not properly served. She further contended that the jurat of attestation was taken out by a stranger person from the application and not the deponent as it was in the different names of Julias Labert Mwase. She argued that the different in names goes to the root of the case and the jurisdiction of the court is only to strike out the application at hand. She backed out her position with the decision of Salim Amour Diwani vs. The vice Chancellor Nelson Mandela African Institution of Science and Technology & The Attorney

General, Application No. 116/01 of 2021 CAT at Dar es salaam(unreported). Submitting on the third PO, the learned counsel was of the view that the application was fatally defective as it failed to cite the relevant provision of the law supporting the prayers sought. She said the applicant cited section 11 (1) of the Appellant Jurisdiction Act, Cap 141 R.E 2002 the law which did not exist. On the point that the affidavit contains untruths, the learned counsel submitted that the jurat and the name of the deponent was not 3 Julias Labert Mwase if at all the deponent was Julius Albert Mwase. She added that paragraph 5 was not true as it was not substantiated by any proof of the alleged notice of appeal. The learned counsel then prayed for the application to be struck out with costs. Replying to the above raised PO, Mr. Yoyo learned counsel for the applicant on the PO that the affidavit lacked date, he replied that applicant affidavit that was uploaded into the judiciary system and finally availed to the court was intact and proper. He also submitted that the jurat of attestation stated categorically that the commissioner for oaths personally knew the deponent. He further contended that the authorities cited by the learned counsel for the respondent were inapplicable for the case at hand. However, Mr. Yoyo adamantly admitted that there was one spelling error involving the names of

the applicant featuring in the Jurat as Julias instead of Julius which proves by affidavit to be one names of the applicant. To emphasis his point, he referred the decision of Dativa Nanga vs. Jibu Group Company Limited and Another, Civil Appeal No. 324 of 2020. In the end he prayed for the Preliminary objection to be dismissed so as to allow the court to deal with the merits of the application. 4 In her brief rejoinder, Ms. Lilian submitted that the affidavit which was served to the respondent was not dated as per the requirement of the law. She added that there was no indication on whether the Commissioner for oaths knew the deponent or he was introduced to him by another person contrary to the requirement of the law. She further said the cases cited were relevant to the circumstance of the case at hand and since the applicant conceded the names to be different then the court ought to consider it as irregularity. She further added that the cited case of Dativa Nanga vs. Jibu group Company Ltd and another (Supra) were distinguishable with the circumstances of the case at hand. Having keenly considered the argument by both learned counsels, the issue is whether the Preliminary Objection ‘PO’ raised is meritorious. Before going further in this case and after having perused the records at hand I have noted that on 25th March 2024 via Misc. Application No. 30 of 2023 in this

Court, I delivered a ruling where the parties (applicant and respondent herein) brought an application like the one at hand, the same was married with anomalies and met several PO’s from the respondent. Among the PO’s raised resembles with the 3rd PO at hand. After hearing both of the parties the applicant application was struck out with costs as the PO were upheld. 5 Now, after the struck out order of this Court, the applicant has brought another application i.e the application at hand (Misc. Application No. 8889 of 2024) and the same have been again met with the several objections as already mentioned above including the one on the wrong citation of the Act. Back to whether this objection at hand has merits. I had time to peruse the applicant affidavit to see whether the same is dated, signed and indicated a place when the oath was taken. Having perused, I have noted that the filed applicant affidavit in the jurat is dated, signed by deponent and has indicated a place when the oath was taken. Further the applicant has indicated the person who introduced him to the commissioner for oaths thus contrary to what Ms. Lilian argued. The fact that the documents which were served to the respondent were undated and or unsigned is misconceived under the scenario at hand as the court uses the records filed in the court and not the one served to the respondent. Further there are no any

evidence submitted to indicate that the affidavit served to the respondent were undated. Thus, in my opinion upon seeing the affidavit attached to this application and which were presented for filling on 18th day of April 2024 is signed, dated and the place where the applicant oath was taken is clearly 6 indicated, the first objection had no chance to stand and it is hereby overruled. Going to the second objection that the jurat affidavit is taken by a stranger person named Julius Labert Mwase. Upon scanning the records, it is true there are spelling error on the names of the applicant but in my view the same is a minor issue and does not go to the root of the case. Thus, by the spirit of overriding objective principle the same is hereby overruled as correctly argued by Mr. Yoyo learned advocate for the applicant. On objection that the applicant has cited the wrong provision of the law and which does not exist. In my view since the applicant have been directed in the previous ruling over the same incident that he mistakenly cited the wrong title of the legislation. It is my view since he had time to rectify and failed to do so, the same is sustained. Thus, I find this objection with merit and sustained, in the premises this application is hereby struck out forthwith. It is so ordered DATED at MOSHI this 24th day of December, 2024. 7

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JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 24th day of December, 2024 in the presence of the respondent whereas applicant is absent. Sgd; A. P. KILIMI

JUDGE 24/12/2024 8