magreth obako 4 others v martha wttmtcadministratrix of the estate of the late masanja milanga 3 others 2023 tzhclandd 17303 28 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA .^ / 4* (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.606 OF 2023 .f' .' (Originating from Land Case No.105 of 2021) MAGRETH OBAKO 1®^ APPLICANT ABDUL MGUMBA 2"" APPLICANT KULWA TIMOTHEO@KULWA KUKU 3"^ APPLICANT PATRICK MWASALINGE 4™ APPLICANT ELINASTO EDWARD 5™ APPLICANT

VERSUS MARTHA Wt&t'mt^CAdministratrix ofthe estate ofthe late MasanJ^.- Miianga). RESPONDENT BENI MARECHELA 2''° RESPONDENT MASONGOLO HAMISI 3*^ RESPONDENT JOSEPH KIBWINA 4™ RESPONDENT

RULING Date ofLast Order: 28.12.2023 Date ofRuling: 12.12.2023 T.N.MWENEGOHA,3 The applicants herein above, sought for an extension of time for them to file an Application for setting aside an ex-parte Judgment and Decree of this Court, dated 22"^^ June 2023, vide Land Case No. 105 of 2021. The 1 z' ,c _ rV t Application was supported by the joint affidavit, sworn by all five applicants. It is the same affidavit which form the basis of this Ruling, as it was noted to be defective by this Court. That, the deponents being four " Christians and one Muslim, all of them took oath, contrary to the Oaths and Statutory Declarations Act, Cap 34, R.E 2019. The parties were ordered to address the Court on the issue noted. Surprisingly, instead of addressing the Court on the defects noted on their affidavit, the applicants filed a supplementary affidavit, with their own motion and no Order of the Court to the effect. On the other hand, the counsel for the respondent, Mr. Shadrack Ntabaiila insisted that, the affidavit is defective. The law is clear, that Muslims must affirm while Christians must swear as given under section 4(a) and (b) of the Oaths and Statutory Declarations Act, Cap 34, R.E 2019. Therefore,the Application is incompetent for being supported by defective affidavit. Having heard the submissions of the counsel for the respondent with regard to the Issue raised by this Court,

I will proceed to determine the competence of the Application. To do so, I will refer the Oaths and Affirmation Rules, GN. No. 125 of 1967, read together with GN No. 132 of 1967 (the Rules), which provide for how to make oaths and affirmations. According to the Schedule made under the said Rules, Item 1 provides for oaths by Christians and Item 2 provides for affirmations by Muslims. That is to say,these Rules provide for what has to be done by a Christians, Muslims, and other believers as far as oaths and affirmations are concerned. In fact, the joint affidavit by the applicants above named introduced the deponents as Christians and Muslim respectively. Unfortunately, instead of making an oath for Christian deponents and affirmation for the Muslim, they just used the word 'take oath' generally for both sides (Christians and Muslim). In that regard, it is difficult for the Court to know for sure who among the deponent is a Christian and who is Muslim. This is against the law. It has already been settled that; an affidavit has to be proper and within the bounderies of the law, as stated in Phantom Modem Transport(1985)Limited vs. D.T. Dobie(Tanzania) Limited, Civil Reference No. 15 and 3 of 2005(unreported) quoted with approval by the Court of Appeai of Tanzania from the case of Uganda V. Commissioner of Prisons Ex-parte Matovu (1966) EA 514.Therefore, the joint affidavit by the applicants is incurably defective. For these reasons, I find the Application at hand to be incompetent, for bein^sup a defective affidavit. cation is struck out with no order a to costs. V .N MWENEGOHA, JUDGE, 12/12/2023