mwa3uma ally abdallah 21 others vs elizabeth josephat kyakula 2022 tzhclandd 12478 27 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION} AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.468 OF 2022 MWA3UMA ALLY ABDALLAH APPLICANT SAID ISSA IBRAHIM 21^° APPLICANT JAMES BUTER 3'^ APPLICANT MUSA 3UMA MUSA 4™ APPLICANT NASORO IDRISA HEMED 5™ APPLICANT IBRAHIM ALLYTINDWA 6™ APPLICANT MERIKIORY WILYAM 7™ APPLICANT ISSA SADICK HUSSEIN 8™ APPLICANT MWALAMI 3UMA 303A 9™ APPLICANT CATHERINE MACHUIO 10™ APPLICANT SEVERA MARIKI MROSSO 11™ APPLICANT AMIR HOSSEN KADRI 12™ APPLICANT SHAHA ABDALLAH YUSUPH 13™ APPLICANT ROBERT RICHARD MVAMBA 14™ APPLICANT FRANK CHARLES FUNGO 15™ APPLICANT RAY MWAIHAKI KAMILO 16™ APPLICANT AHMED AYUBU MWANGA 17^" APPLICANT JEMA KONDO PEMBE 18™ APPLICANT OMAR SAID KALUWEI 19™ APPLICANT GAZO MZEE PAZI 20™ APPLICANT ALLY OMARY MKUMBA 21^^ APPLICANT MUSA SHABANI MATIGATI 22"° APPLICANT VERSUS ELIZABETH JOSEPHAT KYAKULA RESPONDENT RULING Date oflast order: 19/09/2022 Date ofRuling: 27/09/2022 T. N. MWENEGOHA,J. The applicants herein above are seeking for an order of injunction against the respondent, to restrain her from developing, alienating, dividing or disposing off any piece of land, pending determination of the main suit. The application was brought under Order XXXVII Rule 1(a) and Section 68 of the Civil Procedure Code, Cap 33 R. E. 2019 and accompanied by the joint affidavit of the applicants. The respondent on the other hand, objected the application on two grounds that; - 1. The affidavit in support of the application is defective for contravening the provisions of GN.125 of 1967 and GN 132 of 1967. 2. The affidavit in support of the chamber application is defective and bad in law for being verified by persons who have not sworn or affirmed the affidavit. Hearing of the objection was heard by way of written submissions Advocate Nereus B. Mutongore appeared for the respondent while the applicants were represented by Advocate Joseph Mandela Mapunda. In his submissions, Mr. Mutongore argued generally that, the applicants made a joint affidavit, but neither of them has stated whether they are Christians, Moslems, Hindus or pagans, contrary to items 1,2,3 and 4 of the 1^ schedule, of the Oaths and Affirmation Rule, GN No. 132 of 1967. He cited the case of Venceslaus MalasI KImarlo vs. Akilimall Abdallah Kambangwa, Misc. Land Case Application No. 199 of 2021, High Court of Tanzania, Land Division at Dar es Salaam. In this case it was observed that; - ">45 it is now, it is difficuit for the court to know for sure if the appiicant when taking the affidavit was a Christian, Mosiem, Hindu or non-beiiever Itshouid be noted that, an affidavit is a substitute oforai evidence, and it has to be a proper within the confines ofiaW He also cited the case of Justus Mazengo and 41 Others vs.Tanzania Portland Cement Pic, Misc. Application No. 2 of 2022, High Court of Tanzania, where it was held that;- ..assumptions are notpart ofiegai training. We, iawyers were trained to deai with facts and appiy them to the iaw and notassumptions. We shouid ieave assumptions to the professions which assumptionsis order ofthe daf In reply, Mr. Mapunda was of the view that, the objection is baseless. The applicants have sworn and affirmed In the opening paragraphs of the affidavit. That, the use of the word "swear" implies Christian and affirm for Muslims, and this has been reflected in the paragraph of the affidavit. Above all, the applicants have separately affirmed and sworn in the jurat which implies their beliefs. Therefore, the defects claimed does not affect the application. The court ought to invoke the provisions of Article 107A92)(e) of the Constitution of the United Republic of Tanzania, 1977. Also, the overriding objective rule, as established under section 3A of the Civil Procedure Code, Cap 33 R. E. 2019, and the case of Feruzi Mustafa and Another vs. Ngimbwa Farmers Association, Misc. Land Application No. 16 of 2020. Having gone through the submissions of the parties, the question for determination is whether the objections have merits or not. The contention is whether the affidavit is defective, owing to the absence of the missing facts, showing the religion of the deponents. The respondent's counsel did maintain that, the missing facts are crucial in administering oaths, hence, failure to include them is fatal, as provided in GN 125 of 1967 and GN 132 of 1967 and the case of Venceslaus Malasi Kimario (Supra). The applicants' counsel in fact, did not dispute the respondent's contention, rather urged the court to invoke the overriding objective rule and do away with the noted technicality by the respondent. As it has been decided in a number of authorities, an affidavit is a substitute of oral evidence. It should be free from any defect to make it useful in the court of law. The court is not allowed to assume or decode any statement or fact from the affidavit. The same should be self- explanatory. The affidavit at hand lacks this quality. It needs the court to assume that the affidavit in question has been deponed by persons of both religions, Muslims and Christians. Hence, I find the objection to be of merit and sustain it accordingly see, Venceslaus Malasi Kimario (Supra). As for the 2"^ objection, I see no need to discuss it, as the findings in the objection are capable of disposing the entire application. Eventually, the application is hereby struck out with costs. It is so ordered. o . MWENEGOHA — JUDGE 27/09/2022 *