Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM . MISC.CIVIL APPPLICATION No. 8881 OF 2024 SEIF JUMA MTENGELA............... APPLICANT ''-’.''si<■*.'■.

VERSUS KIGAMBON! MUNICIPAL COUNCIL ....................... 1st RESPONDENT THE REGISTRAR OF TITLE.................................... 2nd RESPONDENT THE COMMISSIONER FOR LAND......................... 3rd RESPONDENT THE ATTORNEY GENERAL.................................... 4th RESPONDENT

RULING 30th May, 2024 L, HEMED, J„ Here is an application for mareva injunction filed in this court pursuant to section 2(3) of the Judicature and Application of laws Act [ Cap 358 RE 2019] and section 95 of the Civil Procedure Code [ Cap 33 RE 2019]7TFiie respondents herein have challenged it vide the counter affidavit of one Kajesa Minja, Principal officer of the 3rd Defendant. Alongside the counter affidavit the respondent through the service of Mr. Mkama Musalama, learned State Attorney have raised a preliminary objection in limine //Zzsthat: "...the affidavit supporting the application is incurably defective and bad in law for the jurat of attestation being attested by unqualified person " The matter was called for necessary orders on 30th May, 2024. The applicant appeared in person and opted to concede to the preliminary point of objection. He also prayed for the court not to award costs. Mr. Musalama, learned State Attorney who appeared to represent the respondents did not have objection to the prayer for waiver of costs. Having heard from the parties, I also took time to inspect the affidavit deponent to support the application and realize that: i. The deponent is one SEIFU JUMA MTENGELA, who is the Applicant in the instant matter; ii. The affidavit was affirmed on 23rd April 2024; iii. The Commissioner for Oath who administered the said affidavit is one ■ - Z

/ZZ., ELISHA C. MWINUKA, According to section 3(1) (a) of the Notaries Public and Commissioner for Oaths Act [Cap 12 R.E 2019] an advocate is entitled to practice as a notary public and commissioner for oaths in Mainland Tanzania. However, for an advocate to practice as a notary public and commissioner for oaths zzz?" 2 __ has to apply to the Registrar of the High Court for a Certificate that entitles him to practice as notary public and Commissioner for Oath. Section the Act requires for renewal of the certificate annually. It provides thus: - "(2) Every certificate shall cease to be in force after the 31st December next following the date of issue, unless it is renewed. In view of the above provision, an advocate who fails to renew his certificate after 31st December, ceases to be an active notary public and commissioner for oaths. In other words, he turns to be an unauthorized person. I managed to access the e wakili data base (ewakili.judiciary.go.tz) and I found that Mr. Elisha C Mwinuka advocate with Role No. 9694 has not renewed his license to practice as an advocate and commissioner for oaths. The e-wakili database reveals that Mr. Elisha C Mwinuka has active' since January 2024 to date. It is thus clear that when Mr. Elisha C Mwinuka was attesting the affidavit of SEIFU JUMA MTENGELA on 23rd April 2024, he was unqualified person to practice as Commissioner for

Oaths. In law the affidavit that has been attested or administered by unqualified ’T-* T ■ * person is as good as having not attested. This being the case, the affidavit ■ • • - .t- safe- ‘1 supporting the instantaneous application is defective for want of attestation. From the foregoing, the objection is sustained. The entire application is .. . hereby struck out without cost. Order accordingly. 4 ' • • . ' - ■ “rwftjtntTU