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Tanzania Judgment

TZHC

majani tenga mboje vs republic 2023 tzhc 18941 12 july 2023

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Professional case brief

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Source document

01

Holding and result

The applicant did not personally attest to his affidavit before the Commissioner for Oaths, as evidenced by the different dates in the verification and attestation clauses, rendering the affidavit defective and the application incompetent.

Court disposition

Application struck out

Orders

  • Application is struck out due to defective affidavit

02

Material facts

Parties

Majani Tenga Mbqje

Applicant

The Republic

Respondent Counsel: Mr. Melchior Hurubano

03

Procedural history

  1. Posture

    Misc. Criminal Application / Preliminary Objection Ruling

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, as an inmate, claimed lack of knowledge and stated that the admission officer handled his documents.
Respondent
The respondent argued that the affidavit was defective due to different dates in the verification and attestation clauses, implying the applicant did not attest before the Commissioner for Oaths, rendering the application incompetent.

05

Court’s reasoning

  1. 01

    Notaries Public and Commissioner for Oaths Act [CAP 12 RE 2019], section 8

    Every Notary Public and Commissioner for Oaths must insert his name and state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made.

  2. 02

    Thabitha Mugwani vs. Pangea Minerals Ltd, Lab. Rev. No. 48 of 2014

    The identity of the deponent in supporting the affidavit must be stated truly in the jurat of attestation.

06

Ratio, limits and disposition

Ratio decidendi

The applicant did not personally attest to his affidavit before the Commissioner for Oaths, as evidenced by the different dates in the verification and attestation clauses, rendering the affidavit defective and the application incompetent.

Obiter and limits

  • The mandatory provision for attestation of affidavits of inmates before a commissioner for oaths is archaic and unjust and should be amended to improve criminal justice.
  • Technicalities related to collection of written evidence in the form of an affidavit are a heavy burden to inmates appealing their convictions.
  • Minor defects in affidavits can be rectified as per recent decisions of the Apex Court, but the long-term goal should be to do away with such requirements for prisoner appeals.

Court disposition

Application struck out

  • Application is struck out due to defective affidavit

Source and reliance status

TZHC · 12 July 2023

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Judgment text

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Source document

TZHC

Judgment· 12 July 2023

majani tenga mboje vs republic 2023 tzhc 18941 12 july 2023

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA MISC. CRIMINAL APPLICATION N0.22 OF 2023 (Originating from the District Court of Kiiwa at Masoko in Criminal Case No.24 of2022) MAJANI TENGA MBQJE............................ ...................APPLICANT

VERSUS THE REPUBLIC...................................... ........... .........RESPONDENT

RULING 12/7/2023 LALTAIKA, J. When this application came for hearing today, the Republic was represented by Mr. Melchior Hurubano, learned State Attorney, while the appellant appeared in person and unrepresented. Before proceeding further, the learned State Attorney raised a preliminary objection regarding the verification clause and attestation clause of the applicant's affidavit, which bear two different dates. The learned State Attorney averred that this implies that the applicant did not attest before the commissioner for oaths. Mr. Hurubano further argued that this anomaly renders the applicant’s affidavit defective and consequently affects the competence of the entire application. Page 1 of4 In response, the applicant stated that as an inmate, he is not knowledgeable about the matter and claimed that the admission officer was the one who handled his documents. In consideration of the arguments presented, it is important to note that the jurat of attestation is governed by the Notaries Public and Commissioner for Oaths Act [CAP 12 RE 2019] under section 8, which states: "Every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall insert his name and state truly in the jurat of attestation at what place and on whatdate the oath or affidavit is taken or made." The Labour Court Division of the High Court of Tanzania,

in the case ofTHABITHA MUGWANI VS. PANGEA MINERALS LTD, LAB. REV. NO, 48 OF 2014, stated: "The identity of the deponent in supporting the affidavit must be stated truly in the jurat of attestation. Whether the Commissioner for Oaths knew the deponent in person or has been identified to him byx, the latter being personally known to the Commissioner for Oaths, all that has to be stated truly in the jurat of attestation. That information of identification has to be clearly shown in the jurat." In the present case, the applicant attested to his affidavit without appearing before the Commissioner for Oaths, Based on the aforementioned observation, it appears that the applicant did not personally attest to his affidavit, but rather it was attested by the admission officer who appeared before the Commissioner for Oaths on a different date from the one on which the applicant had verified the affidavit. Page 2 of 4 business reengineering process ahead of the paperless court in the advent of the fourth industrial revolution stand to add value to all stakeholders, including prisoners if unnecessary procedures are done away with. All said and done, the objection is upheld, and I hereby strike out the application. Court: This ruling is delivered under my hand and the seal of this court on this 12th day of July 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney and the

applicant who has appeared in person, unrepresented. 12.07.2023 Page 4 of 4 Although I am going to strike out this application for purposes of ensuring that it decided similarly with other applications that came through this chamber earlier today, I must not allow this opportunity to pass by without indicating that the mandatory provision for attestation of affidavits of inmates before a commissioner for oaths is archaic and unjust. These are laws that must be amended to improve criminal justice in our country. The Court of Appeal of Tanzania in MUSTAPHA RAPHAEL V. EAST AFRICAN GOLDMINES LTD CIVIL APR NO 40 OF 1998 (Unreported) stated that an affidavit is not some sort of a superior evidence. I think adds nothing in what is narrated in the affidavit by an inmate. Another reason that I think this 19th century practice is unnecessary especially to a prisoner is that usually anyone mentioned in an affidavit must also swear an affidavit. See BENEDICT KIMWAGA V. PERMANENT SECRETARY, MINISTRY OF HEALTH CIVIL APPLICATION NO. 31 OF 2000 (Unreported). An affidavit that which mentions another person is considered hearsay and unless the source of information is disclosed an affidavit should not be acted upon see SALIMA VUAI FOUM VS, REGISTRAR OF COOPERATIVE SOCIETIES AND 3 OTHERS [1995] TLR 75. It goes without saying that such technicalities related to collection of written evidence in the form of an affidavit is too heavy a burden to inmates trying to appeal against their conviction and sentences while their freedom is highly restricted. I know such minor defects can be simply rectified as per recent decisions of the Apex Court, but the long-term goal is to do away with such a requirements for appeals preferred by prisoners. The ongoing Page 3 of 4

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Thabitha Mugwani vs. Pangea Minerals Ltd, Lab. Rev. No. 48 of 2014

Case cited

Mustapha Raphael v. East African Goldmines Ltd Civil Appeal No. 40 of 1998 (Unreported)

Case cited

Benedict Kimwaga v. Permanent Secretary, Ministry of Health Civil Application No. 31 of 2000 (Unreported)

Case cited

Salima Vuai Foum vs. Registrar of Cooperative Societies and 3 Others [1995] TLR 75

Case cited

Notaries Public and Commissioner for Oaths Act [CAP 12 RE 2019]

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