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IN THE HIGH COURT THE UNNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM. MISC. APPLICATION NO. 4708 OF 2025 SHANANGA GROUP LIMITED......................................... APPLICANT IAN JOHN KILEO (the administrator of the late PIUS MANYWELE SHANGAMA MWACHILO)............................................... 1st RESPONDENT REGISTRAR OF TITLES........................................... 2nd RESPONDENT THE HON. ATTORNEY GENERAL.......................... 3rd RESPONDENT

RULING Date of last Order 7/3/2025 Date of Ruling 7/3/2025 LALTAIKA, J. The applicant herein SHANANGA GROUP LIMITED has moved this court under Order XXXVII Rule 1(a) and Section 68(e) of the Civil Procedure Code [Cap 33 R.E. 2019], seeking: For orders of injunctions restraining the 2nd Respondent, their agents, workmen, servants and any persons acting under their authority from changing the ownership of Plots No. P29696, Block-, and Plot No. 1002, Block 43 located at Kijitonyama, Dar es Salaam held under Titles No. DSMT1019395 No. and DSMT1019402 respectively registered in the name of SHANANGA GROUP LIMITED, to the 1st Respondent, IAN JOHN KILEO (as Administrator of the Estate of the late PIUS MANYWELE SHANGAMA MWACHILO), until the Application is heard and determined inter-partes. 1 When the application was called for mention early today, Friday 7th March 2025, representation by Counsel was as follows: Mr. Lucky Mgimba, learned Advocate assisted by Mr. Mosses Mwitete, learned Advocate appeared for the Applicant. Mr. Barnaba Luguwa, learned Advocate, appeared for the 1st Respondent. Mr. Nzumbe Machunda, learned State Attorney (SA) appeared for the 2nd and 3rd Respondents. Mr. Mgimba informed the court that the application was coming for mention and stated that all the Respondents had been duly served. He noted that, following the receipt of a counter-affidavit from Counsel for

the 1st Respondent, the Applicant sought one more adjournment. Additionally, he pointed out that Counsel for the 1st Respondent had raised a preliminary objection. Given that the application was based on a notice issued in reliance on an expired note of the Registrar of Titles, Counsel asserted, he prayed for the maintenance of the status quo. In response, Mr. Luguwa, objected to the prayer for maintenance of the status quo. He argued that such a notice was issued pursuant to a court order, a fact that the Applicant had concealed both in their application and submissions. He explained that the Registrar was merely executing a court 2 order and asserted that granting an injunction in such circumstances would be equivalent to the court issuing an order against itself. On his part, Mr. Nzumbe Machunda, the learned State Attorney, stated that his clients had been served on 4/3/2025, meaning that they were still within the statutory period for filing their reply. However, he noted that there were apparent issues that, in his view, qualified as legal issues. Among the fundamental concerns, he highlighted the incompetence of the application. Mr. Machunda forcefully submitted that the affidavit had been sworn by one Pancrasy Ereneus Mwalongo, a Principal Officer of the Applicant, who had sworn ten paragraphs. However, the verification clause bore the name of Olestusy Mwalongo, who was

the person who had verified the sworn paragraphs. The learned State Attorney further clarified that, in simple terms, the person who swore the affidavit and the one who verified it were two different individuals. He contended that this contravened Order XIX Rule 3(1) of the Civil Procedure Code Cap 33 RE 2019, which strictly required that affidavits be sworn by a person conversant with the facts in their own 3 knowledge. Given this discrepancy, he argued that the deponent lacked knowledge of the facts since they had not been properly verified. Additionally, he drew inspiration from this Courts case of ETG INPUT LTD v. DOMINIC LOGISTIC (Limited) Mise. Civil Application No. 537 of 2022 HCT Dar es Salaam, where my brother His Lordship Kakolaki J., when faced with a similar situation, at page 10, emphasized that: "The importance of verification is to test the genuineness and authenticity and also to make the deponent responsible for the allegations. In essence, verification is required to enable the court to find out whether it will be safe to act on such affidavit evidence." Relying on this precedent, the learned State Attorney argued that the application was incompetent for not being supported by a proper affidavit and, therefore, should be struck out with costs. Mr. Luguwa, also added that he had noted a discrepancy in the attestation clause, where the deponent was Pancrasy

Ereneus Mwalongo, yet the attestation clause bore the name Olestusy Mwalongo. He submitted that, given this inconsistency, the affidavit contained an incompetent attestation clause, warranting the striking out of the application with costs. 4 Counsel for the Applicant, Mr. Mgimba, responded by stating that he had taken note of the submissions made by his learned friends and conceded to the arguments raised. However, he prayed that, since the matter was coming up for the first mention, no order as to costs be issued. He further emphasized that his side had not been aggressive in the proceedings. Having heard the submissions of the learned Counsel for the parties, this Court is now called upon to determine whether the application is properly before the Court. It is trite law that affidavits form the backbone of applications and must strictly comply with the procedural requirements prescribed under the Civil Procedure Code [Cap 33 R.E. 2019]. Order XIX Rule 3(1) of the Code provides that affidavits shall be confined to facts within the personal knowledge of the deponent and must be verified accordingly. The 1st and 2nd Respondents pointed out a fatal defect in the affidavit supporting the application, specifically that the affidavit was sworn by one Pancrasy Ereneus Mwalongo, while the verification clause was signed by a different person, Olestusy Mwalongo. This discrepancy raises

a fundamental issue of authenticity and validity. 5 The importance of proper verification was emphasized in ETG INPUT LTD v. DOMINIC LOGISTIC LTD, (Supra) (HCT-DSM, Kakolaki J.), where the Court held that the verification of an affidavit is crucial in testing its genuineness and authenticity, ensuring that the deponent takes responsibility for the statements made. In the present case, the inconsistency in the attestation clause renders the affidavit defective, making it incompetent as an affidavit must be verified by the person swearing to the facts. Since the present application is founded on a defective affidavit, it is incompetent and must suffer the inevitable fate of being struck out. On whether an Order as to Costs Should Be Made, Mr. Mgimba conceded to the defectiveness of the affidavit but prayed for the Court's indulgence in not making any adverse order as to costs, emphasizing that there had been no aggression or bad faith on their part. While costs ordinarily follow the event as per Section 30(1) of the Civil Procedure Code, courts have discretion to depart from this general rule where circumstances justify such a departure. In this case, the Applicant has demonstrated candor in acknowledging the defect, and there is no 6 evidence of dilatory or vexatious conduct. Accordingly, I find it just and equitable to exercise my discretion in favor of not awarding costs. In the upshot, the application is hereby struck out for being incompetent. I make no order as to costs. It is so ordered E.L LA LTAI KA

JUDGE 07.03.2025 Court: Ruling delivered in Court Chambers this 7th day of March 2025 in the presence of Mr. Lucky Mgimba, learned Advocate assisted by Mr. Mosses Mwitete, learned Advocate, Counsel for the Applicant. Mr. Barnaba Luguwa, learned Advocate, Counsel for the 1st Respondent and Mr. Nzumbe Machunda, learned State Attorney (SA) Counsel for the 2nd and 3rd Respondents. 7