misc land application no2 of 2023 2023 tzhc 23077 29 september 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA MISC. LAND APPLICATION NO.2 OF 2023 (Originating from the District Land and Housing Tribunal for Mtwara in Land Application NoJ. of2019) SALUMU SELEMANI LILANGU........ ............................ ..APPLICANT VERSUS SHAKIRA ISSA NAMATELEKA (The Administratix of the Estate of the late HASSANI ISSA NAMATELEKA) .............RESPONDENT RULING 29/9/2023 LALTAIKA, J.: The applicant herein, SALUMU SELEMANI LILANGU, is praying for this court to grant him an extension of time within which to lodge a Petition of Appeal out of time. The applicant is moving this court under section 41(2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] and any enabling provisions of the laws. This application is supported by the affidavit affirmed by the applicant. On the other hand, the application is highly resisted by the counter affidavit affirmed by the respondent. In Page 1 of 6 addition, the respondent has also filed the Notice of Preliminary Objections on point of law to the effects that:- a. That, the Applicant's Affidavit is incurable defective for containing prayers, legal arguments and hearsay. b. That, the Applicant's Affidavit is incurable defective for contravening the provision of section 10 of the Oaths and Statutory Declaration Act [Cap. 34 R.E. 2002]. . ' c. That, the Applicant's Affidavit is incompetent and bad in law for being supported by an incurably defective Affidavit having a defective verification clause. When this matter was called for a hearing both parties appeared in person and unrepresented. As the practice demands, I opted to dispose of the preliminary objections first and.parties were invited to address them. On the^part of the respondent prayed to submit orally because of her sickness. The respondent insisted that she had undergone an Operation. She submitted further that it is also getting difficult for her to pay the lawyers to write the documents. The respondent prayed that this court should have a look at the documents and decide so that they will know exactly who is right and who is wrong. In reply the 'applicant submitted that he just went to the experts who tried to help him to come up with the document. The applicant Stressed further that if the experts are not knowledgeable in law, then they will come to see it. As far as the first limb of the preliminary' objection is concerned, it is trite law that matters of hearsay and opinion are not accepted in evidence and that an affidavit being a substitute of oral evidence is bound not to include opinion and hearsay statements as per Order XIX Rule 3 (2) of the Page 2 of .6 Civil Procedure Code [Cap.33 R.E. 2019]. This position: was stated in Uganda vs Commissioner of Prisons, Expar-te Matovu [1966] 1 EA 514 and was also restated in Phantom Modern Transport (1985) Ltd vs. DT Do hie (TZ) Ltd, Civil References Nos. 15 of 2001 and 3 of 2002 (unreported) where it was held; - "As a general rule ofpractice and procedure On affidavit for use in Court being a substitute for oral evidence, it should only contain statement to which the witness- disposes either ofhis own knowledge: or such an affidavit should not contain extraneous matters by way of objection or prayer or legal argument or conclusion." More so, in the case of Sabena Technics Dar Limited vs Michael J. Luwuzu, Civil Application No. 451/18 of 2020 Court of Appeal of Tanzania at DSM (unreported) at page 11 the Court said;- "... an affidavit which mentions another person is hearsay unless that other person swears as well, likewise in Benedict Kimwaga case it was observed that an affidavit mentioned another person's, that other person must swear an affidavit, otherwise it will be hearsay...” indeed, the above legal positions have prompted this court to go through the applicant's affidavit. For the easy of reference and understanding below are extracts of paragraphs 8, 9 and 10 of the applicant's affidavit: - UB. That, I am sick to date, that rendered to be out of time, to file an appeal an appeal within 45 days stated by the law. Even. the copy ofjudgment I received on 29®December, , 2022 after directed one Mussa Ahmadi Namateieka to go at the Tribunal to collect the saidjudgement. 9. That, Since the illness problem facing the applicant it happened out of his control and not done intentionally for abusing the court process and wasted oftime, Ipray that, this Page 3 of 6 honourable court be pleased to extend time within which for the applicant to file appeal out of time. 10. That, since and under the circumstances of the case, and since my intended appeal has ali over Whelming, chances ofsuccess, justice willonly be met if the prayers sought in the chamber summons are granted." Upon reading the above contents of the affirmed affidavit by the applicant, I have realized that the contents of paragraphs 8, 9 and 10 contain hearsay, legal argument and prayer as asserted by the respondent. Based on the above finding, I am fortified that the applicant's affidavit is defective. Now, on the second limb of the preliminary objection where the respondent had asserted that the applicant's affidavit is incurable defective for contravening the provision of section 10 of the Oaths and Statutory Declaration Act [Cap. 34 R.E. 2002], The provision of section 10 provides reads; - 'TO. 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 law a form of statutory declaration is prescribed for use for the purposes of that ta w such form may be used for that purpose." More ever, it is my observation that in the jurat of attestation of the applicant's affidavit the Commissioner for Oaths did not indicate whether he knew the deponent personally or has been identified to him by another person. I am fortified that what appears in the applicant's affidavit contravenes the mandatory requirements of section 10 of the Oaths and' Statutory Declaration Act. In the case of Thomas John Paizon vs Khalid Page 4 of 6 A. Nongwa, Misc. Land Application No.954 of 2017 where the court stated that: "Under section 10 of the Oaths and Statutory Declarations Act Cap 34 R.E 2002, it is mandatory that the statutory declaration complies with the form prescribed in the schedule and it must be stated and specified in the jurat of attestation whether the deponent was known to the commissioner for oaths personally or whether he was identified to him by a person personally known to the commissioner for oaths." Furthermore, it is the cardinal principle that where the law clearly provides that the procedures must be complied courts cannot act blindly irrespective of the application of the Overriding Objective Principle. See, Mondorasi Village Council & 2 Others vs Tanzania Breweries Limited & 4 Others, Civil Appeal No. 66 of 2017 CAT at Arusha where the Court stated that: - "Regarding the o verriding objective principle, we are of the considered view that, the same cannot be applied blindly against the mandatory provisions of the procedural law which go to very foundation of the case." The jurat of attestation is one of the most important components of the affidavit which gives the affidavit a legal force. Therefore, the act pf the Commissioner for Oaths for failing to indicate whether he personally knew the deponent or identified to him by someone else who is known to him contravenes the requirement of section 10 of the Oaths and Statutory Declarations Act. As alluded earlier that the defect cannot be cured by the overriding objective principle. More importantly, the defects render the affidavit incurably defective thus, the affidavit suffers a striking out with, costs. Page 5 of 6 29,9.2023 This ruling is delivered under my hand and the seal of this court on this 29th day of September 2023 in the presence of both the applicant and the respondent who have appeared in person, unrepresented. 29.9.2023 Page 6 of 6