shose k ngowo administrator of the late costansa s ngowo v edwin paul mhende another 2023 tzhclandd 16713 31 july 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPLICATION NO. 707 OF 2022 (Originating from Land Appeal No. 97 of 2021 by Hon. Arufani. J dated 1 September 2022) SHOSE K. NGOWO (Administrator of the estate of the Late Costansa S. Ngowo)................................. ...APPLICANT VERSUS EDWIN PAUL MHENDE...................................................................... RESPONDENT MUSTAFA HARUNA KIGUFA...................................................... 2nd RESPONDENT RULING Date of last Order:26/05/2022 Date of Ruling: 31/07/2023 K.D. MHINA, J. This application was brought by way of a Chamber summons made under 47(2) of the Land Court Disputes Act, Cap 216 (R: E 2019). The applicant, Shose Ngowo (Administrator of the late Costansa S. Ngowo), is inter alia, seeking the following orders against the respondents, Edwin Paul Mhede and Mustafa Haruna Kigufa; a) That this Honorable Court be pleased to grant leave to appeal to the Court ofAppeal against the decision of this court (Arufani, J) in Land Appeal No. 97 of2021 delivered on 1st September2022. i b) Any other relief(s) this Court may deem just to grant, c) Costs of this application. The application is supported by an affidavit deponed by Raymond Wawa, the counsel for the applicant, which expounded the grounds of the application. The respondents countered the application by filing a joint counter-affidavit duly sworn by Raphael Lefi David, the counsel for the Respondents. In response to the jointly counter affidavit, the applicant raised P.O predicated on the following grounds; 1. The joint counter affidavit is defective for being signed by only one person and an unauthorised deponent. 2. The joint counter-affidavit is defective for containing matters which can not disclose the source of information. The P.O. was disposed of by way of written submission. The applicant was represented by Mr Raymond Wawa, a learned advocate, while Mr. Raphael Lefi David, also a learned advocate, represented the respondents. In supporting the first limb of preliminary objection, Mr. Wawa argued that the joint counter affidavit was meant to be signed by all the respondents, but it was signed by only one person, which does not qualify 2 as a joint counter affidavit as none of the respondents had either jointly signed with an advocate or respondents themselves. He further submitted that the deponent, an advocate for the respondents, had deposed to the facts on behalf of the respondents without an authorisation statement from the respondents or a statement contained in the counter affidavit allowing him to represent the respondents jointly. On the second limb of the objection, Mr Wawa submitted that the authorised advocate is only allowed to depose to swear an affidavit or counter affidavit on behalf of his client in the proceedings he is representing but on the matter of his own personal knowledge. On this, he quoted the verification clause, which read; "I, Raphael Lefi David Advocate, herein verify and state that what is stated in paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 as above are true to the best of my knowledge." And submitted that was a general statement which did not disclose the source of his knowledge. Whether the source was his own knowledge or from the information or the court records. The advocate only represented the respondents during the appeal at the High Court and not at the trial 3 Tribunal, so it cannot be said that he knows everything, including matters that took place at the trial Tribunal. He further submitted that the respondents' counter affidavit is incurably defective as it is based on hearsay information; no paragraph indicates that he perused the court file as he was not the trial advocate. But the advocate claimed to be conversant with facts while paragraphs 6,7, 8, 9 and 10; by their nature, the acts took place at the Trial Tribunal. He cited Uganda vs Commissioner of Prison, Ex-Parte Matovu (1966)1 EA 514 to bolster his argument. He added that as a general rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. In reply, Mr David submitted that he was the one who defended the two respondents at the High Court in Misc. Land Appeal No. 97 of 2021 and that fact is reflected in paragraph 1 of the joint counter affidavit. Further, he cited Lalago Cotton Ginnery, and Oil Mills Company Limited v The Loans and Advanced Realization Trust (LART), Civil Application No. 80 of 2002 (Tanzlii) which was cited as well in the case of Martha George 4 Kilimo v. NCBA Bank Tanzania limited and two others, Misc. Land Application No. 207 of 2022, where it was held that; 'An advocate can swear and file an affidavit in proceedings in which he appears for his client, but on matters which are in advocate's personal knowledge only. For example, he can swear an affidavit to state that, he appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings." He further submitted that the question of whether the deponent of the counter affidavit was dully instructed by the respondent was a matter of evidence and cannot be raised as a preliminary objection. On the second limb of P.O, Mr David submitted that, the High Court is the court which decides the matter upon which the applicant intends to challenge. The facts which the deponent verified were not strange to him as he dealt with the matter at hand, and so in verifying personally was right. On the second limb of the objection, he submitted that the facts which he deponed were not strange to him. The facts contained in paragraphs 6,8,9 & 10 of the counter affidavit were not new facts as they were known to him when handling and representing the respondents in Misc. Land Appeal 5 No. 97 of 2022 at the High Court. Therefore P.O. had been raised without any probable justification. In his rejoinder, briefly, Mr Wawa submitted that on the first limb of objection that their submission in chief was not controverted by the counsel for the respondent. Further, he reiterated what he submitted in the submission in chief that the respondents' advocate was not representing the respondents at the trial tribunal. So, he did not specify what information is in his knowledge and those from another source. Having considered the submission in support of the P.O, reply and rejoinder made by the parties; the issues that have to be resolved are; i. Whether the joint counter affidavit is defective for being signed by oniy one person and an unauthorised deponent. ii. Whether the joint counter affidavit is defective for containing matters which can not disciose the source of information. In deliberation and determination of the first issue, which covers the first limb of the objection, first of all, it should be noted that the alleged unauthorized one-person was the counsel for the respondents. Therefore, 6 the question is whether the counsel may sign/depone the affidavit on behalf of his clients and how (the procedure). The above-stated scenario is not a new phenomenon in our jurisdiction as it has been settled by the Court of Appeal in a number of cases, such as in Arbogast C. Warioba vs. National Insurance Corporation (T) Ltd and another, Civil Application No.24 of 2011, where the court held that; "The Court did not, therefore, lay down a general rule that advocate cannot swear affidavits in the client's cases, but in my understanding, such affidavits should not contain hearsay. In AUGUSTINE MREMA's case, again the High Court said nothing about whether or not advocates could swear affidavits, but in a way supported the position in RAJPUT's case that, whether the deponent is an advocate or not, just like other evidence, subject to scrutiny". Therefore, from the above decision, it is quite clear that an advocate may swear an affidavit on behalf of their clients as there is no law that prohibits that act. In connection with that, another point is whether an express statement in the affidavit indicates that the advocate was authorized and instructed to swear an affidavit is needed to be contained in the affidavit. 7 On this, the cited case of LaLago Cotton Ginneryand Oil Mills Company Ltd (Supra), is relevant, the Court of Appeal stressed that; "An advocate can swear and file an affidavit in proceedings in which he appears for his client but on matters which are in the advocate's personal knowledge only. For example, he can swear an affidavit to state that he appeared earlier in the proceedings for his client and that he personally knew what transpired during these proceedings." And that "From the above, an advocate can swear and file an affidavit in proceedings in which he appears for his client but on matters which are within his persona! knowledge. These are the only limits which the advocate can make an affidavit in proceedings on behalf of his client" From the above-cited case, in my opinion, once the advocate is instructed, he/she may swear/ affirm an affidavit on behalf of the client within the perimeters enunciated in LaLago Cotton Ginneryand Oil Mills Company Ltd (Supra). That means the statement of authorization in the affidavit itself is not mandatory and necessary. The position could be different if the person signed on behalf of another, was not an advocate duly instructed to represent to parties to the matter. For instance, if the first respondent was the one who only signed the affidavit, then that is fatal. The situation such as pointed out above happened 8 in Mohamed Abdillah Nur and four others vs. Hamad Masauni and two others, Civil Application No. 436/16 of 2022 (TanZlii), whereby two of the applicants did not swear the affidavit to support the application based on the argument that third and fourth respondent, who was the applicants' principal officer, could be considered as having been sworn by the first and second applicants as well. The Court of Appeal held that; ” ...a person purporting to swear an affidavit on behalf of another person who is a party to a court proceeding must do so after consultation with and obtaining instructions from the party whose behalf the affidavit is being sworn. We hasten here to emphasize that, such instructions and authorization must be presumed to the advantage ofa party who fails or neglects to file pleadings or affida vit which are of the essence of the matter before a court of law." Flowing from above, since in this application, the person who swore the affidavit is an advocate who was duly instructed to represent the respondents, the counter-affidavit is proper; therefore, the first limb of objection lacks merits. Regarding the second limb, that the counter-affidavit contains matters in which the deponent did not disclose the source of information, this should not detain me long. 9 The argument of Mr. Wawa is based on the submission that paragraphs 6,7, 8, 9 and 10 of the counter-affidavit; by their nature, the acts took place at the Trial Tribunal. Having gone through the cited paragraphs, I found that the paragraphs dealt with the facts of the case. In the Counter-affidavit, the deponent clearly stated in paragraph 1, that he represented the respondents at the High Court in Misc. Land Appeal No. 97 of 2021. This is also reflected on page 3 of the Judgment of this Court. Therefore, since he represented the respondents at the appellate stage, it is obvious he was and is conversant with the facts of the case. Therefore it was proper to verify that the facts were to the best of his knowledge. If we take into account what the counsel for the respondent had submitted, it means that the deponent represented the respondents at the appellate stage without the knowledge of the facts of the case, the issue of which I am not ready to be convinced. From the discussion above, the second limb of objection is without merits. io In the upshot, the two limbs of preliminary objection are devoid of merits, and consequently, the preliminary objections are dismissed with costs. 31/07/2023. 11