20170309 TZHC Arusha

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ._·.,: .. . "! [IN THE DISTRICT REGISTRY]

AT ARUSHA MISC. CIVIL APPLICATION NO.220 OF 2016 (Originating from Civil Case No.220 of 2016) OLLE OSKAR LOIOTOKI LOBULU ............................. APPLICANT

VERSUS EMMANUEL LEMAMA LOBULU ............................. RESPONDENT

RULING Date of last Order: 3/3/2017 Date of Ruling: 9/3/2017 BEFORE: S.C. MOSHI, JUDGE. This is a ruling on preliminary objection raised by the respondent that the applicant's affidavit is incurably defective as it is attested by a foreign notary Public not entitled to Practice as a Notary Public and Commissioner for Oath in Tanzania. The preliminary objection was disposed of by the way of written submission. In his brief submission the respondent's counsel submitted that the applica~ts intends to use his affidavit which he executed and affirmed in Goteborg, Sweden as evidence for purposes of judicial proceedings in Tanzania, namely the instant application. He argued that Per Backlund is not a Commissioner for Oath who is entitled to practice in Tanzania as per the provision of Section 3 of the Notaries Public and Commissioners for Oath Act, Cap.12 R.E.

2002. He said 1 , .~ on the facts appearing on the applicant's affidavit the said attesting officer r is not Commissioner for Oath in accordance with the Law of Tanzania. He ' is not an advocate whose name is duly entered as an advocate upon the Roll of advocates kept by the registrar of the High Court of Tanzania. He is neither enrolled in the Roll of Notaries Public and Commissioners for Oath nor granted the certificate which entitles him to practice as Notary Public and Commissioner nor granted the certificate which entitles him to practice as Notary Public and Commissioner for Oath in Mainland Tanzania per Section 4. He added that Section 11(1) (2) of the Act provides thus:- ( 1) Every foreign services officer exercising his function in any country or place outside Tanzania may in that country or place administer any oath and take any affidavit, and also do any notarial act which any person entitled to practice as a Notary in which Public and Commissioner for Oaths in Tanzania can do in that part of Tanzania in which he is so entitled, and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in Tanzania. (2) Any document purporting to have affixed, impressed, or subscribed on or to it the seal or signature of any person authorized by this

Section to administer an oath in testimony of any oath, affidavit, or act being administered, taken, or done by or before him, shall be admitted in evidence without proof of seal or 2 signature being the seal or signature of that person, or of the official character of that person. He said the from the above section an affidavit taken by a Tanzanian Foreign Services Officer Abroad is admissible in evidence in judicial proceedings in the Court of Tanzania. He prayed for this application to be strike out with costs. Responding to the respondent submission the applicant submitted that, Section 3 of Cap.12 provides for persons who are eligible to practice as Notary Public and Commissioners for Oath in Mainland Tanzania which is subject for being enrolled, payment of applicable fees for persons who intends to practice as Notary Public Commissioner's for Oath but the said section does not qualify or make restriction on which duly authorized foreign person of officer can administer or take oaths outside Mainland Tanzania. He added that Section 3 of Cap.12 does not prohibit the applicant from having his affidavit attested by a foreign person who is qualified in the foreign country to attest the same, he was of the opinion that the affidavit supporting the present application has complied with all the requirement of the laws. He prayed for the preliminary objection to be overruled and

the application to be heard on merit. I have considered parties submission to the preliminary objection, from the wording of Section 3 of Cap.12 it is undisputed that the affidavit supporting the present application did not comply with the requisite condition given in the above provision, as the same was attested by a 3 foreign Notary Public not entitled to practice in Tanzania,, it is trite law that I for the documents to be admitted in evidence it needs; to satisfy all the condition to make it admissible. I I Also Section 93 (c) (i) of the Evidence Act, Cap.6 R.E. 2002 states I I that in the case of a document executed in any other: place outside the I I United Republic, if it purports to be authenticated by the! signature and seal I of office of a foreign officer of the united Republi~ or a diplomatic I representative of a commonwealth country in that: place, or in the I I circumstances the preliminary objection is hereby sustaifned the application I is struck out with costs. :

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I I I S.C. Me.-

JUDGE 09/03/2017 4