madeni kipande vs mkolokolo hamisi gayo another 2018 tzhclandd 471 27 august 2018

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 1057 OF 2017 (Originating from Land Appeal No. 120 o f 2017). MADENI KIPANDE................................... APPLICANT VERSUS MKOLOKOLO HAMISI GAYO & ANOTHER....RESPONDENT RULING Date o f the Ruling 27* August 2018 RJ. KEREFU, 3 The applicant herein filed this Application under Section 11(1) of the Appellate Jurisdiction Act, Cap. 141 [R.E. 2002] praying for extension of time to allow the applicant to lodge appeal against the decision of this Court issued by Hon. Mgonya, J on 19th October 2017 in Land Appeal No. 120 of 2017 out of time. The Application is supported by an Affidavit deponed by Dr. Mutabaazi Julius Lugaziya, the learned Counsel for the applicant. On the other side the respondents filed a joint counter affidavit vehemently opposing the Application. In addition they filed a point of preliminary objection to the effect that the Court is not properly moved for non-citation of the enabling provisions of the law, Rule 47 of the Tanzania Court of Appeal Rules, 2009. He as such prayed the application to be dismissed with costs. On 27th August 2018, when the matter was called for mention, the applicant was represented by Dr. Lugaziya, the learned Counsel and the respondent appeared in person, as he said their advocate is still on the way coming. Dr. Lugaziya prayed the matter to be disposed by Written Submissions. The respondent was not in a position to respond to this prayer as he said he is a lay person. However, before granting that prayer, the Court requested Dr. Lugaziya to peruse the record of the Application and address the Court if the same is properly filed before the Court and whether the Court is properly moved to grant the applicant's prayers indicated in the Chamber Summons. After perusal of the Application, the Chamber Summons and the Affidavit Dr. Lugaziya informed the Court that, the matter is incompetent before the Court for not citing the proper provisions of the law. As such he prayed for necessary orders. 2 I have perused the application before me and together with non-citation of proper provision I have further noted that the applicant's Affidavit contains a verification clause therein which is defective. The verification Clause is crafted contrary to Order XIX Rule 3 (1) o f the Civil Procedure Code, which requires a deponent to testify in the Affidavit only those matters he is able o f his own knowledge to prove. For the sake of clarity, I find it pertinent to reproduce the said provision of the law herein; "Affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory application on which statements o f his belief may be admitted'. (Emphasis added). In the case at hand, the verification clause has grouped all the paragraphs together and is captured in the following style: "AH what is herein stated, inclusive o f paragraphs 1-11 are true to the best o f my own knowledge" I wish to emphasize that, it is a principle of the law that, in the verification clause, the deponent must states what is true to the best of his own knowledge except the statement of beliefs and other information where he is required to indicate the source of the same therein. In the cases of Augustine Lyatonga Mrema & others V. Attorney General & Others 1996 TLR 273 and Uganda v Commissioner of Prisons Ex Parte Matovu, (supra) affidavit of similar nature was considered and struck out for being incompetent. In South Freight and Export Company LTD V CRDB Bank LTD, (supra) where it was held at page 5 that:- "An Affidavit can be incurably defective on account o f many aspects. It may totally be argumentative or be primarily based on information or beliefs whose source is /are not disclosed..". [Emphasis added]. Now, the next question is what is the fate of the incurably defective Affidavit? I must emphasize that, once an Affidavit is termed to contain defects it renders the entire Application incompetent, as it has no legs to stand on. Therefore, the only remaining noble duty of this Court is to strike out the said Application for being accompanied by an incurably defective Affidavit and also for non citation of proper section as clearly submitted by the Counsel for the applicant. 4 In the event and for the foregoing reasons, I declare that, the Misc. Land Application No. 1057 o f 2017 which is accompanied by incurably defective Affidavit is hereby struck out. I make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this day of August, 2018. JUDGE ) 27/08/2018 Court- The Ruling delivered on this 27th Day of August 2018 in the presence of the parties. \) a R. J^Kerefu JUDGE 27/08/2018 5