MAMBYA SINAKU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS CIVIL APPLICATION NO. 11708 OF 2024 MAMBYA SINAKU............................................................................ 1st APPLICANT PITA HUUYU.................................................................................. 2nd APPLICANT WANDIBA KAKWAYA.................................................................... 3rd APPLICANT VERSUS JUMANNE ZOMA KONGO (Administrator of the Estate of Samson Zoma Kongo)............................................................... RESPONDENT RULING OF THE COURT 21/01/2025 & 25/02/2025 Kafanabo, J.: This is an application for reference filed by chamber summons supported by a joint affidavit of the Applicants. The application is made under Order 7(1) and (2) of the Advocates Remuneration Order, G.N. No. 264 of 2015. In the chamber summons the Applicants are applying for the following substantive orders: i. This Court be pleased to grant the application for reference. ii. Costs of this application be granted. It is on record that on 23 April 2024, the District Land and Housing Tribunal for Mara at Musoma in Application No. 191 of 2023 determined the i taxation application in favour of the Respondent by upholding the preliminary objections raised, and the application was thus struck out. The Applicants being aggrieved by that decision preferred the present application for reference. However, before the application was heard on merits the Respondent raised a preliminary point of law to the effect that this Application is incompetent for being accompanied by a defective affidavit for want of proper jurat contrary to section 10 of the Oaths and Statutory Declarations Act Cap. 34 R.E. 2019 and Section 8 of the Notaries Public And Commissioners For Oaths Act Cap. 12 R.E. 2019. The matter was scheduled for hearing on 21/01/2025, and at the hearing, Mr. Ostack Mligo entered an appearance for the Respondent and Mr. Thomas Manyama Makongo entered an appearance for the Applicants. In support of the preliminary objection, the Respondent submitted that the affidavit in support of the application has a defective jurat. Section 10 of the Oaths and Statutory Declarations Act, Cap 34 R.E. 2029 (hereinafter referred to as the 'Act') provides a prescribed form of the jurat that should be complied with. It was submitted that the affidavit in support of the application before the Court did not comply with the prescribed form of the jurat. The Applicants are indicated in the jurat of attestation as introduced to the Commissioner for Oaths by Mr. Thomas Manyama Makongo. However, the jurat does not explicate if the said Thomas Manyama Makongo is known to the Commissioner for Oaths. Since the jurat does not comply with the prescribed form it contravenes 2 section 10 of the Act. The case of Commissioner General TRA v. Pan African Energy (T) Limited, Civil Application No. 277/20 of 2017 was cited to bolster the submission. It was further submitted that the jurat of attestation also requires every person to sign on a separate jurat of attestation and not to combine all the deponents in one jurat, as each deponent is sworn according to his religious faith. Also, the jurat uses the expression I and not we, citing the case of Moses Gilbert Kitime and 4 Others v. The Registered Trustees of EAGT, Revision No. 07 of 2023. The learned counsel in the end prayed that this Court be pleased to hold that the jurat of attestation is defective and strike out the application with costs. Responding to the submissions in support of the preliminary objection, Mr. Makongo submitted that the person who makes an introduction must be known to the Commissioner for Oaths. He argued that the submissions of the Respondent's counsel have relied heavily on the decision of the Commissioner General TRA (supra) which states that there are three matters which must be certified by the Court according to section 10 of the Act. In the affidavit at hand, it is indicated that Mr. Thomas Makongo Manyama introduced the deponents to the Commissioner for Oaths who signed the jurat. This means that the Commissioner for Oaths knew the person who introduced the deponents to him. Secondly, the form that was referred to by the Respondent's counsel is very clear, and missing the words 'the latter being known to me personally,' cannot make the form defective, as the major 3 options provided by the law were met. The person is either known to the Commissioner for Oaths or introduced to him by the person known to him. It was further submitted that the preliminary objection raised offends article 107A(2)(e) of the Constitution of the United Republic of Tanzania which abhors technicality and thus should be dismissed. As regards the argument that the affidavit contains a jurat combining the deponents' attestations, the learned counsel for the Applicants argued that the case of Moses Kitime (supra) which is relied upon by Mr. Mligo is distinguishable from the present case. The deponents in the said case were Muslims and Christians and that is why it was held that there should be separate jurats, which is not the case in the case at hand. In the present case, there are no deponents of mixed religion. Therefore, there was no need to have separate jurats of attestation. Finally, it was prayed that the Court be pleased to rule that the affidavit in support of the application is properly before the Court. In rejoinder, Mr. Mligo submitted that the identifier of the deponents was not known to the commissioner for oaths, and article 107A(2)(e) of the Constitution of the United Republic of Tanzania should not used where the law stipulates the form of the jurat. Section 10 of the Oaths and Statutory Declarations Act uses the word shall, and thus this is not a technicality and should be complied with. In determining the preliminary objection in question the starting point is section 10 of the Oaths and Statutory Declarations Act which reads as follows: 4 "Where under any law for the time being in force any person is required or is entitled to make a statutory declaration, the declaration shall be in the form prescribed in the Schedule to this Act: Provided that, where under any written taw a form of statutory declaration is prescribed for use for the purposes of that law such form may be used for that purpose." In light of the above provision, the statutory declaration, which includes an affidavit, is required to be in a prescribed form. Relevant to the application before the Court is the argument that the prescribed form of the jurat of attestation has not been complied with in the affidavit supporting the application. It follows that the prescribed format of the jurat of attestation in the prescribed form of the statutory declaration reads as follows: "This, Declaration is made and subscribed by the said A. B. who is known to me personally (or who has been identified to me by................... ; (Signature of the person the latter being known to me personally) - taking the declaration) this.................. day of........................... (Signature, qualification, and address of the person taking the declaration)" Considering the provision of the law above and the prescribed form of the jurat of attestation, it is clear that, as rightly argued by the Respondent's counsel, the jurat of attestation in the affidavit supporting the present application does not state if the person (Thomas Manyama Makongo) who introduced the deponents is known to the Commissioner for Oaths. The Jurat 5 of attestation is silent in that respect. Mr. Makongo argued that so long as the Commissioner for Oaths indicated that the deponents were introduced to him by someone he named, then it was obvious that the Commissioner for Oaths knew that person. It was further argued that the omission of the phrase 'the latter being known to me personally/ cannot make the affidavit defective, as the major options provided by the law were met. This Court to some extent understands the position of Mr. Makongo that the format provided in the schedule to the Act cannot be expected to apply rigidly, but mutatis mutandis depending on the nature of the oath and /or statutory declaration. That is some phrases or words or word structures may change in the said format to accommodate a particular oath or a statutory declaration, these include the introductory part and the body of facts where the deponent is given liberty to state the relevant facts. Nevertheless, it is also true that there are parts of the prescribed format that either cannot be changed at will or if changed they should convey the same meaning and purpose as intended by the prescribed format. These parts include the verification clause and the jurat of attestation because they are intended to achieve a particular purpose, especially of validating the oath, and thus a departure from the statutory form should carefully be navigated as the alteration may omit or add an expression that distorts the intended legal effect. The question now is what are the consequences of non-compliance with the prescribed form especially on the verification and jurat of attestation? In the case of Jamal Msitiri @ Chaijaba vs Republic 6 (Criminal Application No. 1 of 2012) [2017] TZCA 410 (10 July 2017) the Court of Appeal held that: "We would also wish to underscore that section 10 of the Oaths and Statutory Declarations Act, Cap. 34 RE 2002, is relevant in attestation of an affidavit. It provides, in mandatory terms, the form that statutory declarations (including affidavits) must take. Such declarations must be in the form prescribed in the Schedule to Cap. 34 (supra). The aforesaid Schedule specifically directs that the Commissioner for Oaths must indicate in the declaration either to have known the deponent personally or the deponent before him must have been identified to him by a person known to him personally. As regards the verification, it is a clause in the affidavit that shows the facts the deponent asserts to be true of his own knowledge and/or those based on information or beliefs. In other words, it shows the source of each of the facts deposed in the affidavit. It is legally accepted practice that the verification clause must be signed and dated separately by the deponent." Moreover, in the case of Commissioner General (TRA) vs Pan African Energy (T) Limited (Civil Application No. 277/20 of 2017) [2018] TZCA 457 (5 February 2018) the Court held that: "It is a common understanding therefore that affidavits contain statements or declarations of facts in a written form affirmed or sworn before an officer having authority to administer oath or affirmation. In 7 that respect, therefore, an affidavit must comply with the provisions of section 10 of the Act in that it must be in the form prescribed in the schedule to the Act which mandatorily requires the Commissioner for Oaths to indicate in the declaration (in the present case, the jurat) either to have known the deponent personally or the deponent before him have been identified to him by a person known to him personally. As section 10 of the Act is couched in mandatory terms, failure to comply with it is fatal." In the said case of Commissioner General (TRA) vs Pan African Energy (supra) the Court also held that: '"Given the above legal position and the fact that compliance with the provisions of section 10 of the Act is mandatory, failure to indicate in the jurat of attestation whether the deponent was personally known to the attesting officer or was introduced to him by a person known to him, is fatal. That renders the affidavit fatally defective. The affida vit is in valid. ” Reverting to the present case and having reviewed the law on proper jurat, and upon further review of the affidavit in support of the application this Court is of the view that the jurat of attestation of the affidavit supporting the application is incurably defective because of the following reasons: i. The jurat of attestation mentions the person who introduces the deponents to the Commissioner for Oaths, but does not state 8 that the person who introduced the deponents is known to the Commissioner for Oaths; ii. The jurat of attestation has jumbled up three deponents in one jurat of attestation but does not state who, specifically, amongst the three deponents is introduced to the Commissioner for Oaths. iii. The jurat of attestation does not state whether all three deponents were introduced to the Commissioner for Oaths by one person known to the Commissioner for Oaths personally. In an attempt to demonstrate that the failure to state whether the person who introduced the deponents was personally known to the Commissioner for Oaths was a mere technicality, the Applicants' learned Counsel sought refuge under article 107A(2)(e) of the Constitution of the United Republic of Tanzania 1977 as amended because it abhors technicality in favour of substantive justice. However, as rightly argued by the Respondent's counsel the article should not be used to defeat the clear rules of procedure which are handmaidens of justice. This Court finds comfort in the case of Commissioner General (TRA) vs Pan African Energy (supra) when discussing the import of Article 107A(2)(e) of the Constitution and the rules of procedure, held that: "It is now settled position of the law that Article 1O7A (2) (e) of the Constitution did not do away with or outlawed all the rules of procedure in the administration ofjustice. The Court, in the case of Zuberi Mussa v. Shinyanga Town Council, Civil 9 Application No. 100 of2004 (unreported) had this to say in respect of that Article: "...article 107A(2)(e) is so couched that in itselfis both conclusive and exclusive of any opposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for Court action and not as iron dad rule which bars the courts from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality ofjustice delivered... One cannot be said to be acting wrongly or unreasonably when he is executing the dictates of law/' (Emphasis added). In yet another case of China Henan International Cooperation Group v. Saivand K.A. Rwegasira, Civil Reference No. 22 of2005 (unreported) the Court stressed: "The role of rules of procedure in administration of justice is fundamental... that is, their function is to facilitate the administration ofjustice." In light of the foregoing, it is crystal clear that the Applicants affidavit had to conform with the requirements of the law which, in this case, it did not for failure to state in the jurat of attestation that the person who introduced/identified the deponents to the Commissioner for Oaths was personally known to the Commissioner for Oaths. This means that the jurat of attestation of the affidavit in support of the application was attested in contravention of section 10 of the Oaths and io Statutory Declaration Act and the schedule thereto. The defect renders the affidavit in support of the application incurably defective and thus invalid. It follows that the chamber summons before the Court has no valid affidavit for it to stand as an application. Therefore, the application is incompetent for want of a valid affidavit and is hereby struck out. Given that this was an application for reference as regards a taxation cause, each party shall bear their costs. It is so ordered. The ruling was delivered in the presence of the Applicant, and in the presence of Mr. Ostack Mligo, Advocate for the Respondent. K. I. Kafanabo Judge 25/02/2025 11