20140522 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM D~STRICT REGISTRY)

AT DAR ES SALAAM ' CIVIL REVISIO~ N0.45 OF 2009 I' KAHAMA MINING CORPORATION LTD ............... APPLICANT l t LUCAS B. NYANDA~ ................ L...................... RESPONDE,NT I. 1 ' Date of last Order 8/10/2013 j Date of Ruling 22/5 /20141 Ii

RULING A. Shangwa. J. On 2 nd September, 2009, the Applicant Kahama Mining Corporation filed an~ application for revision of I • the Order of the Court of the Resident Magistrate at t ' j Kisutu made on 19 th January, 2009 in .civil case NO. 1 of 2009. Its application wa~ supported by affidavit of I · one Godson Killiza who is th~ Manager there. I' 1 On 18 th Septembe~, _:2013, counsel for the Respondent Mr. Tasinga filed a Notice of Preliminary .I i ' ! '. ·' . :-- '•. ·; . ' . . .1 2 objection against the application in issue on grounds that it is incompetent as it is supported by affidavit which is defective in its jurat clause and prayed the Court to strike it out. In his written submissions, he said that the name of the attesting officer is not disclosed at the jurat clause.•_ He contended that the act of not disclosing the name of the attesting officer renders the affidavit incurably defective, and that the effect of such affidavit is to render the whole · application incompetent. In support of his contention, he cited the case of MS Bulk Distributors Limited V. Happyness Willian Mollel CAT Civil Application NO. 4 of 2008 (unreported) in which the application was struck out for being supported by an affidavit that did not disclose the name of_the attesting officer. In ·his reply submissions, learned counsel for the Applicant, Mr. Yusufu Sheikh submitted that disclosing

the name of the attesting officer in the ·-' i j 3 ' ,' \ affidavit in support of the ~pplication is not important 1 so long as the name of the commissioner for oaths is ! ' ' identifiable. He said, for m~y years in· Tanzania, the ; practice has always been fof an attesting officer to _sign ' his name and put a rubbef stamp in the jurat which I . contains his full name, adcI;ress and title. He said, the I application is not incompetpnt for being supported by I .an affidavit which does not disclose the name of the · II attesting officer. He argukd that· even if the law j '

I I I requires that the name of ~he attesting officer should l I be disclosed in the affidavJt, a failure to disclose it I • J ' l ,I cannot render the application to be st~uck out. In support of his submission, he cited the · case of phantom Modern Transpo~t (1985) Ltd V. DT Dobie ' (Tanzania) Ltd. Civil Reference NO. 15 of 2001 ,1 I (unreported) in which the dourt of Appeal of Tanzania jI ' held that· where an application is supported by an ·, I affid_avit which has defects _;that can be_. rectified, the 4 same should not be struck out, instead, the applicant should be given opportunity to file a fresh affidavit. In. this case, it is not in dispute that the name of the attesting officer in the affidavit in support of the application is not disclosed in the jurat. The question ' which has on more than one occasion taxed the mind of the Court is whether or not an application which is supported by an affidavit in which the name of the attesting officer has not been disclosed in the jurat should be struck out. In the case of Felix Mkosamali V. Jamal A. Tamim, Civil Application NO. 4 of 2012 (unreported) and in the case of MS Bulk Distributors Ltd V. Happyness Mollel, Civil Application NO. 4 of 2008 (unreported) the affidavits in support of the applications did not disclose the name of the attesting officer. Those applications were struck out by the 'I 5 " 'I ' Court of Appeal.

However, in a recent case of Samwel :I . 'I Kimaro V. Hidaya Didas, Civil Application NO. 20 :1 II of 2012 (unreported), the same Court made a 'I :, departure from its old r, decisions by holding categorically that were an application is supported by 'i an affidavit without the narp.e of the attesting officer in the jurat, it should not be struck out, instead the Applicant should always be given the opportunity to amend the affidavit by substituting it with a fresh one . •I As a matter of precedent, the above mentioned 1' i authority is binding on this· Court. Therefore, although •. ,I the name of the attesting officer is not disclosed in the • ·1 ,. jurat of the affidavit in support of the application for revision before this Court, '.:, I cannot strike it out as ,, prayed by Mr. Tasinga for tlie Respondent in his notice ' . of preliminary objection and.in his written submission. ·1 The most I can do now. is td allow the Applicant to file '' ' ' a fresh affidavit which I hereby do. The fresh affidavit 6 in which the name of the attesting officer is disclosed in the jurat should be filed within a month from today. Thus, I overrule the Respondent's preliminary Delivered in Court in the presence of Mr. Mnyesha Petro for the Applicant this 22 nd day of May, 2014 and •1 . • ·._