20050504 TZCA Mbeya

,,------.... . IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CIVIL APPLICATION NO. MBY 8 OF 2004 JUMA S. BUSIYAH .................................................. APPLICANT VERSUS THE ZONAL MANAGE~ . (SOUTH) TANZANIA POST CORPORATION ............. ·RESPONDENT (Application to restore appeal from the ruling of the High Court of Tanzania at Mbeya) (Mackanja, J.) dated the 17 th day of January, 2002 · in Misc. Civil Appeal No. 21 of 1998 RULING MUNUO, J.A.: · The applicant, Juma S. Busiyah, through the services of Mr. Mushokorwa, learned advocate, seeks: (a) Extension of time to appeal to the Court of Appeal of (;..· ;i \, I Tanzania out of time; (b) Leave to appeal to the Co~rt of Appeal of Tanzania against the decision __ in Miscellaneous Civil Appeal No. 21 of 1998 in the High Court of Tanzania at Mbeya; and ( c) Costs of the application. Mr.· Mwakolo, learned advocate for the Respondent, filed a preliminary objection on a point of law contending that the affidavit 2 in support of the application is incurably defective in that it contains extraneous matters by way of legal arguments so the application should be dismissed with costs. At the hearing, Mr. Mwakolo specified that paragraph 7 of the affidavit in support of the application is bad in law because it contains matters of law instead of deponing to facts. Counsel for the applicant cited the case of Uganda versus· Commissioner of <) t) Prisons Ex Parte Matovu 1966 E.A. 514 at Page 520 wherein the then Eastern Africa Court of Appeal observed: "The affidavit sworn to by counsel is also defective. It is clearly bad in law. Again, as a · gene_ral rule of practice and procedure, an affidavlt for use in court, being a substitute of oral evidence, should only contain statements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information to which he believes to be true. Such affidavit must not contain extraneous matter by way of objection or prayer or legal argument or ·- -- - ..:: - ..:: conclusion. The affidavit by counsel in this matter contravenes O.17. r. 3 of the Rules of this Court and should have been struck out." Mr. Mwakolo submitted that the said 017.r.3 I is in pari materia with the provisions of Order 19 Rule 3 of the Code of Civil Procedure, 1966 which states: Order XIX Rule 3: Affidavits 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: CJ' Provided that the grounds thereof are stated. (\ The provisions of Order XIX Rules 3 of the Code of Civil Procedure, 1-966, are similar to the provisions of Order 19 Rule 1 of the Indian Code of Civil Procedure Act V of 1908. Mulla, The Code of Civil Procedure 10 th Edition Pages 665 to 666 reflect the same . ..:: 4 Mr. Mushokorwa, l~arned advocate for the Respondent, resisted the preliminary objection. He. conceded that paragraph 7(a) and (e) of the affidavit in support of the application relate to matters of law: He nonetheless, contended that pleading points of law has not offended any law so the court should strike out para 7(a) and (e) only and let the application be determined on merit instead of striking it out with costs. In the alternative, counsel for the applicant argued, the court should allow the applicant to amend the pleadings in order to rectify the defective affidavit. He contended that even in the above Ex-pa rte . Matovu case, the court did not strike out or dismiss the case which indicated that the defective affidavit was a minor irregularity which is curable. He cited the case of Salima Vuai Fourm Versus Registrar of Cooperative Societies and Three o·thers ( 1195) TLR 75 to support his argument that the defective affidavit is curable by way of amendment or striking out the defective clauses. With respect, the case of Salima Vuai Foum is distinguishable from the present case because in Salima's case the issue was one of ) a defective verification of the affidavit in that the verification clause did not disclose the source of the deponent's knowledge and - ..::: -· information. In that case the court held that where an affidavit is made on information, it should not be acted upon by any court /,. unless the sources of information are,,5pecified. Here the issue is not ... , .}~~· · defective verification. The issue ·befor~ me is one of pleading matters of law instead of deponing to facts. Is such a defect incurable? The definition of the word "Affidavit" has some clue to the (!) (?) above issue. Osborn's Concise Law Dictionary, 6th Edition by John Burke, Sweet and Maxwell at Page 20 states:- "Affidavit: A written statement ;,·in the name of a person, called the deponent, by whom it is voluntarily signed and sworn to or affirmed. It must be confined to such statements as the deponent is able of his own knowledge to prove, but in certain cases it may contain statements of information and belief with the sources and grounds thereof. The parties to civil proceedings may agree that their case be . tried upon affidavit and the court may order (l that any particular facts, or the evidence of 1-..; any particular witness, shall be proved by affidavit. Affidavits are of infinite y2i'riety." From the about definition of affidavit, it i_§.;Clear that a deponent . ·f- . :• to an affidavit depones to facts, that is evidence, not matters or points of law. My view is fortified by Order XIX Rule 1 of the Code of Civil Procedure, 1966 which states: "1. Any court may at any time for sufficient reason order that any particular fa.ct or facts -~:~ may be proved by affidavit, - .- or · that the ,.~•· -. affidavits of any witness may :P.e read at the •• : ~ .!~" • hearing, or such conditions as tbe• court thinks reasonable: (: Provided that where it appears to the court · that eith.er p·arty bona fide · desires the· production of a witness for cross-examination', and such witness can be produced an order shall not be made authorizing the evidence of such witness to be given by affidavit." - ..::: In view of the above definition of 'affidavit' and the provisions of Order XIX Rules 1 and 3 of the Civil Procedure. Code, 1966, an . affi~,?vit is essentially, facts, and therefore evide~i~, not points of ?. ;.,:·. ~1.t:.,•..;,~· .;,.:. lawJ9'r legal arguments .as pleaded at paragraph it~fan that respect, "l_1{/.· ' "=-•• ,:. :· .~✓.-. the ·~:~-Parte :' . Matovu ca?e cited supra is in line withii,the .... provisions of -.~ Order XIX Rule 3 of the Code of Civil Procedure Code, 1966. Under the circumstances the affidavit in support of th~ application is ,~:-, & ·.:-. fi' incurably defective and thence renders the application incompetent. tfor the reasons stated above the preliminJty -~-. . ;· ,. objection is sustained. . .J; The application is accordingly struck qpt\NJth -...;...,.... . costs . ,· f( :.;~--~ -.~ -::;-·_ --..... ·-; bATED at MBEYA this 4th day of May, 2005. E.N. MUNUO JUSTICE OF APPEAL I . i ::