20150311 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: MBAROUK,J. A., MASSATI,]. A., And MMILLA, J. A.) CRIMINAL APPLICATION NO.4 OF 2010

JUMA SAID YAHAYA ABDALLAI-I ........................................................ APPLICANTS

VERSUS THE REPUBLIC ........................................... ............................. RESPOI1DENr (Application for review from the Decision of the Court of Appeal of Tanzania, at Mwanza) (Msoffe, Mbarouk, Bwana, JJJ.A.) Dated the 5th day of May, 2010 in Criminal ADDeaI No. 114 of 2005

RULING OF THE COURT & 13 th March, 2015 loth MASSATI,J.A.: The applicants appeal against conviction for armed robbery, was dismissed by this Court on 30th April, 2010. Dissatisfied, they have lodged an application for review of that judgment on 23/8/2010. 1 The application was instituted by a Notice of Motion supported by a joint affidavit of the applicants taken out under Rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). When the application came up for hearing Ms. Mwamini Y. Fyeregete, learned State Attorney appearing for the respondent, rose to argue a preliminary objection, notice of which she had earlier on filed. Initially, the notice carried two grounds but in the course of hearing, she abandoned one and argued the remaining preliminary objection, that:- "The affidavit of the applicants is incurably defective for not having a verification clause/" It was her submission that the affidavit lacked a verification clause which was an essential element of an affidavit. Relying on the decision of this Court in DIRECTOR OF PUBLIC PROSECUTIONS VS DODOLI KAPUFI & ANOTHER, Criminal Application No. 11 of 2008 (unreported), the learned counsel submitted that the omission rendered the affidavit incurably defective and could not support the Notice of Motion in terms of 2 Rule 48 (1) of the Rules. She therefore prayed that the application be struck out. The first

applicant resisted the preliminary objection. He submitted that he was not aware of any law that required a verification clause in an affidavit. If there was any, he went on, it was a mere technicality, which this Court should not pay too much attention at the expense of substantive justice. For that he referred the Court to Article 107 (2) (c) of the Constitution of the United Republic of Tanzania, 1977. The second applicant joined chorus with his colleague, and prayed that the objection be overruled. Rule 48 (1) of the Rules requires every application to the Court to be by notice of motion supported by affidavit. By way of emphasis, Rule 49 (1) of the Rules provides:- fl49 (1) Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons 3 having knowledge of the facts." (emphasis supplied). The purpose of an affidavit therefore, is to convey to the court and the other party some facts material to the case from the best sources. It is evidence in written form. According to DODOLI KAPUFI's case (supra) the purpose of the verification clause is to show whether the facts asserted by the deponent are of his own knowledge or based on information or beliefs. With respect, since an affidavit is a substitute for oral evidence the requirement of a verification thereon goes to the root of substantial justice, and

not just a matter of form and not a mere technicality. For that reason, we reject the applicants' contention that the requirement for verification was a mere technicality that the Court could dispense with under Article 107 A (2) (e) of the Constitution of the United Republic of Tanzania 1977. In this case, the applicants have filed a joint affidavit in support of their Notice of Motion. For ease of reference it is reproduced below:-

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA CRIMINAL APPLICATION NO . .u.uu.u.u.uu.p.I OF [Application for review of Courts judgment, as arising from the Criminal Appeal No. 114 of 2005] MSOFFE, J.A., MBAROUK, J.A. And BWANA,J.A.

BETWEEN I

JUMA SAID YAHAYA ABDDALLAH .............................................APPLICANTS AND; THE REPUBLIC ......................................................RESPONDENT

AFFIDAVIT We both named here in above, males, adult of sound minds, Tanzanians and Muslims. Do HEREBY affirm and state as hereunder:- THAT; we jointly deponed to these application/affidavit for the purpose of supporting the appended NOTICE OF MOTION. THAT; the applicants seeking to be called at the hearings and prayed to argue the Court. WHERE, the applicants pray the Courtto review its judgment, which extracted on 5th May, 2010 at Mwanza, as per legal demands, the judgment here to attached. Also, we pray to be called at the hearing. 5 V DATED at MWANZA this 2 nd day of June, 2010 Signed ...............................................................1 ST APPLICANT Signed .............................................................. 2ND APPLICANT CERTIFICATION: certified that the affidavit and Notice of Motion both have been made signed by the prior named. (Sgd) Officer i/c Affirmed by the named

L JUMA SAID DEPONENT 2. YAHAYA ABDALLAH AT Mwanza this 2nd day of July, 2010 DEPONENT Signature ...................... Qualification .................. As pointed out by the respondent and admitted by the applicants, there is no verification clause in this affidavit. It is no doubt defective. On the authority of DPP VS DODOLI KAPUFI (supra) case, we have no hesitation in holding that the defect is incurable. The affidavit has to be struck off. Once the affidavit is struck off, the Notice of Motion shall have nothing to hang on. It is rendered incompetent and so ought to be struck out. (See ROBERT IBENGWE VS THE DIRECTOR HOTEL TILAPIA (1) LTD, Civil Application No. 4 of 2010 (unreported). The application thus stands struck out. Order accordingly. DATED at MWANZA this 11th day of March, 2015. M. S. MBARQUK

JUSTICE OF APPEAL S. A. MASSATI

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL I certify that this is a true copy of the original. P. WIA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL