20050826 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 176 OF 2004 In the Matter of an Intended Appeal MABI AUCTIONEERS (T) LTD . ......................................... . VERSUS NBC HOLDING CORPORATION nee CONSOLIDATED HOLDING CORPORATION ............ ~. RESPONDENT (Application for extension of time to file Notice of Appeal · from the decision of the High Court of Tanzania at Dar es Salaam) (Kimaro, J.) dated the 16th day of June;-2003 in Civil Case No. 400 of 1998 . RULING MUNUO, J.A.: The applicant, Mabi Auctioneers (T) Ltd., through the services of Dr. Lamwai, learned advocate, brought the present application under Rules 8 and 44 of the Tanzania Court of Appeal Rules, 1979, • seeking extension of time to file a Notice of Appeal against the decision in Civil Case No. 400 of 1998 on 16th June, 2003, before Kimaro, J. The application is supported by. an affidavit deponed to by one Macfarlane Msechu, the Director of the applicant company. 2 Mr. Mwandambo, learned advo:e:ate for the respondent, NBC Holding Corporation, filed a Notice of preliminary objection on alternative grounds namely: (a) that the application is time barred; or (b) alternatively the affidavit in support of the application is defective for non- compliance with Section 8 of the Notaries Public and Commissioners for Oaths Ordinance, Cap. 12. In view of Dr. Lamwai's submission that the Drawn Order was issued to the applicant on the 17th December, 2004 and the application filed within time on the 22 nd December, 2004 within the fixed period of appeal sixty days so the appeal is not time barred. The first preliminary objection on the period of limitation is therefore overruled. As for the second preliminary objection counsel for the respondent bank contended that the affidavit in support of, the application lacks a date of attestation so it contravenes the mandatory provisions of Section 8 of the Notary Public and \ 3 Commissioners for Oaths Ordinance, yap. 12. Non-compliance with the provisions of Section 8, counsel for the respondent contended, invalidates the affidavit in question in the absence of which the application is rendered incompetent. He cited the cases of James Masanja Kasuka versus George Humba, Civil Application No. 2 of 1997, Court of Appeal of Tanzania (unreported); D. B. Shapriya and Co. Ltd. versus Bish International BV, Civil A~plication No. 53 of 2002 Court of Appeal of Tanzania (unreported) and Suleiman Ally Nyamalegi and 2 Others versus Mwanza Engineering Works Ltd., Civil Application No. 9 of 2002, Court of Appeal of Tanzania (unreported) in which the Court held that omissions of date and place of attestation invalidate an affidavit which in turn renders an application incompetent. Dr. Lamwai, learned counsel for the applicant, conceded that - the affidavit in support of the application lacks the date of attestation. He, however, contended that date omission is a minor and therefore curable defect so the application should proceed to hearing to avoid invoking technicalities to procrastinate the proceedings and intended appeal. It was the prayer of counsel for 4 the applicant that the preliminary obj~ction on the date omission is frivolous so the same should be overruled. The issue is whether the omission to endorse the attestation date invalidates the affidavit in support of the application. Section 8 of the Notaries Public and Commissioners for Oaths Ordinance, Cap. 12, provides inter-alia:- 8 .. · Every Notary Public and Commissioner for Oaths before whom any Oath or· Affidavit is taken or made under this Ordinance shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made. A single judge defined affidavit in the case of D. B. Shapriya, cited above, as:- Affidavit has been defined as a written document containing material and relevant facts or statements relating to the matters in question or issue and sworn by the deponent before a person or officer duly authorized to administer any oath or affirmation or take any affidavit. It follows from this definition that ,,. 5 an affidavit is governed by certain rules and requirements that have to be followed ..... The word jurat is defined in Black's Law Dictionary Seventh Edition by Bryan A. Garner, West Group, St. Paul, Mim. 1999 at Page 854 as:- Jurat - to swear. A certification added to an affidavit or deposition stating when and before what authority the affidavit or deposition. was made. A ju rat typically says "subscribed and sworn to before me this --- day of (month)(year) and the officer (usually a Notary Public) thereby certifies three things:- (1) that the person signing that document did so in the officer's presence, (2) that the signer appeared before the officer on the date indicated, and (3) that -the officer administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document. What is clear under the provisions of Section 8 of the Notary Public and Commissioners for Oaths Ordinance, Cap. 12 as well as in the above definitions of the words "affidavit" and "jurat" is that an 6 affidavit must bear the date and playe it was deponed to. In the absence of a date of attestation, place of attestation, or the name and signature, or the names and signatures of both the deponent and notary public who administered the oath or affirmed the deponent to the affidavit, an affidavit would be fundamentally defective and thence invalid. The preliminary objection on non- compliance with the provisions of Section 8 of the Notary Public ai:,d Commissioners for Oaths Ordinance, Cap. 12 is hereby sustained for" the reason that the date omission invalidated the purported affidavit in support of the a·pplication which in turn rendered the application incompetent. In view of the above, the preliminary objection on the missing date of attestation is sustained. In the result the application is struck out with costs. DATED at DAR ES SALAAM this 26 th day of August, 2005. E.N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.AMuRA) SENIOR DEPUTY REGISTRAR