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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM CONSOLIDATED MISC. LAND APPLICATIONS NO.20999 & 25027 BOTH OF 2024 (Originating from Land Case No. 333 of 2023) 1st APPLICATION TAHER KUTBUDDIN TAIBALI.............................................. 15T APPLICANT MRS. SALIMA TAHER TAIBALI............................................ 2nd APPLICANT VS FIRDOS APARTMENT LIMITED............................................................... 1stRESPONDEN HITAll COMPANY LIMITED...................................................................... 2ndRESPONDENT COSMOS PROPERTIES LIMITED...............................................................3rdRESPONDENT AZANIA BANK LIMITED............................................................................ 4thRESPONDENT SEBASTIAN KITENGULE GANYAKA........................................................... 5thRESPONDENT LEAH MADATA MKABULO.......................................................................... 6thRESPONDENT WILLIAM MUHEMU................................................................................... 7thRESPONDENT MARK AUCTIONEERS AND COURT BROKERS COMPANY LIMITED.................................................................................. 8™RESPONDENT THE HONOURABLE ATTORNEY GENERAL........................ 9th RESPONDENT 2Nt> APPLICATION SEBASTIAN KITENGULE GANYAKA..................................... 1st APPLICANT LEAH MADATA MKABULO.................................................... 2nd APPLICANT 1 WILLIAM MUHEMU................ ...... ............... ..................... 3RD APPLICANT VERSUS FIRDOS APARTMENTS LIMITED...................................... 1st RESPONDENT HITAJI COMPANY LIMITED............................................. 2nd RESPONDENT COSMOS PROPERTIES LIMITED...................................... 3rd RESPONDENT AZANIA BANK LIMITED................................................... 4th RESPONDENT TAHER KUTBUDDIN TAIBALI........................................... 5th RESPONDENT MRS. SALIMA TAHER TAIBALI......................................... 6th RESPONDENT MARK AUCTIONEERS AND COURT BROKERS COMPANY LIMITED......................................................... 7th RESPONDENT THE HONOURABLE ATTORNEY GENERAL....................... 8th RESPONDENT RULING 02/12/2024&23/12/2024 GWAE, J The applicants named herein filed their respective applications for extension of time within which to file an application to set aside an ex- parte order issued on 20th May 2024 on Land Case No. 333 of 2023 still pending before the Court. The first and second respondents in both applications contested the applications by filing the counter affidavits along with the Notices of preliminary objection. In Misc. Land Application 2 No. 20999 of 2024, the preliminary objection is on three points of law to wit:- 1. The application is fatally defective for want of the affidavit of the 1st applicant; 2. That, one Mary Masumbuko Lamwai, the deponent of the affidavit, has no legal authority to swear the affidavit in support of the application and thus her affidavit is void in law; 3. That both the affidavits of Mary Masumbuko Lamwai and Mrs. Salima Taher Taibal are fatally defective for failure to disclose the sources of information. Whereas in Miscellaneous Land Application No. 25027 of 2024, the respondent's advocate canvassed the PO consisting of the following points of law:- 1. The application is bad in law for being supported by a defective affidavit which; (i) Has been sworn by a person, Stephano J. Mchome, who has no locus standi to swear affidavit as he has never acted for the applicant in the respective proceedings. (ii) Contains legal arguments and legal conclusions. (iii) It contains prayers. (iv) It does not disclose the source of information. 3 (v) It contains objection on point of law. 2. The applicants have not sworn affidavits in support of their application and accordingly the application is not supported by any affidavit. It is settled law in our jurisdiction, that, when an application, suit or an appeal is encumbered with a preliminary objection, such objection must first be resolved before hearing of the application, appeal or suit on its merit. Hearing of the preliminary objections raised by the advocates for the first and second respondents in both applications proceeded by way of written submissions. The applicants were represented by Ms. Mary Masumbuko Lamwai (Application 20999 of 2024) and Mr. Stephano Joshua Mchome (Appl. No. 25027 of 2024), both the learned advocates whereas the first and second respondents were represented by Mr. Edward Chuwa, learned Advocate. In determination of the PO raised, I will combine points 1 (i), 2 in Misc. Land Case Application No. 25027 of 2024 together with points 1 and 2 in Misc. Land Application No. 20999 of 2024. Points 1 (ii), (iii) and (v) in Misc. Land Case Application No.25027 of 2024 will be determined together. Point (iv) in Misc. Land Case Application No. 25027 4 of 2024 and 3 in Misc. Land Application No. 20999 of 2024 will also be jointly determined. Starting with point l(i), 2, 1 and 2 that Mary Masumbuko Lamwai and Stephano J. Mchome, the deponents of the affidavits, have no iegai authority to swear the affidavits in support of the applications. Thus, their affidavits are void in law. Consequently, making the affidavits in support of their fatally defective for want of affidavits of the applicants. It was submitted by Mr. Chuwa that, Ms. Lamwai and Mr. Mchome who purported to swear affidavits have not been authorised by the applicants except the second applicant in Misc. Land Case Application No. 20999 of 2024 since they have never represented the said applicants in Land Case No. 333 of 2023 before the Court, since the matter proceeded ex-parte against their clients, therefore, they have no legal authorities to swear affidavits on the behalf of the present applicants. To support his argument, Mr. Chuwa cited the case of ABSA Bank (T) Limited & Another vs. Hjordis Fammestad, (Civil Application No. 695/16 of 2022) [2024] TZCA 246 (26 March 2024). Mr. Chuwa further submitted that where there is more than one applicant, there must be affidavits of all applicants to support the applications, failure of which renders the application defective. He stated 5 that, the applicants except the second applicant in Miscellaneous Land Application No. 20999 of 2024 did not swear an affidavit and accordingly the applications are defective. He referred to the case of Registered Trustee of St. Anitha Greenlands Schools (T) and 6 Others vs. Azania Bank Limited, Civil Application No. 168/16 of 2020 to support his argument. In their replies, it was submission by Ms. Lamwai and Mr. Mchome that, they are the applicants' advocates who have been duly authorized by them to swear the affidavits on their behalf. Ms. Lamwai stated that, she participated in proceedings in Land Case No. 333 of 2024 by appearing in court session when the matter was called on and Mr. Mchome submitted that, he deciphered after being personally served with a notice of date of hearing, chamber summons and affidavit on Misc. Application No. 20999 of 2024 between Taher Kutbuddin Taibar & Another vs. Firdos Apartment Limited & 8 Others. They added that, they made officials perusal of the court's proceedings on behalf of the applicants. To support their arguments, they cited the case of Kellen Rose Rwakatare Kuntu (As Legal Representative of the late Rev. Dr. Getrude Lwakatare) & 3 Others vs. Zithay Kabuga, Misc. Land Application No. 89 of 2023, TZHCLandD, where Hon. Arufani, J, 6 cited with authority the decision of the Court of Appeal in the case of Lalago Cotton Ginnery and Oil Mills Company Limited vs The Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002 CAT at DSM and Said Salim Hamdun & 2 Others vs. The Administrator General, Misc. Civil Application No.267 of 2022) [2022] TZHC 14099. I have gone through the submissions by the learned counsel for the parties and both applications and found that, the basis of the instant point of objection emanates from the affidavit sworn by Ms. Mary Masumbuko Lamwai, who swore the affidavit on behalf of the first applicant unlike the 2nd applicant who personally affirmed her affidavit and Mr. Stephano Joshua Mchome, who swore an affidavit on behalf of all three applicants. The deponents introduced themselves as advocates for the applicants who are duly instructed and authorized to swear the affidavit on their behalves. It is Mr. Chuwa's contention that, the deponents have no legal authority to swear the affidavit on behalf of the applicants on the reason that, they never represented the applicants before this court in Land Case No. 333 of 2024 and that, the applicants except Mrs. Salima Tareh 7 Taibali did not swear or affirm the requisite affidavits and accordingly the application is fatally defective. It is a settle law in our jurisdiction that advocates have a privilege to swear and file affidavits on behalf of their clients. This position was articulated in the case of Kellen Rose Rwakatare Kuntu (As Legal Representative of the Late Rev. Dr. Getrude Lwakatare) & 3 Others vs. Zithay Kabuga (Supra), the Court (Hon. Arufani, J) while citing the decision of Court of Appeal (T) in Lalago Cotton Ginnery and Oil Mills Company Limited vs. The Loans and Advances Realization Trust (LATR), Civil Application No. 80 of 2002 CAT at DSM, observed 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." From the above legal position, the question that needs to be determined is, whether Ms. Lamwai and Mr. Mchome had personal knowledge on the matters for them to swear affidavits on behalf of the applicants. As I went through their affidavits, I found that, both had personal knowledge on the matters even if they did not appear representing the applicants in Land Case No. 333 of 2023. I 8 consequently find distinction of the facts in these applications and the one cited by the counsel for the 1st and 2nd respondents in Registered Trustees of St. Anita Greenlands Schools (T) and 6 others vs. Azania Bank Limited, Civil Application No. 168/16 of 2020 (unreported) where it was stated; ".... there were no affidavits on behalf of the fifth and sixth applicants and the court observed thus. The ailment of the application not being supported by the affdavit of the fifth and sixth applicants renders the application incompetent." I am decisively hold that view that, the affidavits in the former matter before the Court of Appeal of Tanzania in Registered Trustees of St. Anita (supra) are distinguishable from the affidavits in the present applications since the advocates have sworn affidavits on behalf of all present applicants save the 2nd applicant in Misc. Land Application No. 20999. For instance, Ms. Lamwai stated in her sworn affidavit that, on 19th August 2024, while at this court she heard the names of the applicants in Misc. Land Case Application No. 20999 of 2024 who are their retainer clients being called through the court speaker in Chambers 9 before me and she entered appearance in Land Case No. 333 of 2024 and she came to realize that, there was an order of the Court that Land Case No. 333 of 2023 to proceed ex-parte against her clients now the applicants. Thereafter, she requested for perusal of the court file and obtained all the information regarding the proceedings that resulted into the grant of ex-parte order. On his part, Mr. Mchome argued that, he became aware of the existence of Land Case No. 333 of 2024 after being served with a notice of the date of hearing chamber summons and affidavit on Miscellaneous Land Application No. 20999 of 2024 and upon perusal of the Court file, he became knowledgeable that the hearing of the land to ordered to proceed ex-parte against the applicants. (See paragraph 3 of his sworn affidavit). In the foregoing, I therefore find that Ms. Lamwai and Mr. Mchoma, had personal knowledge acquitted with what transpired in respect of Land Case No. 333 of 2023. Hence, they had locus stand to swear affidavits on behalf of the applicants. Regarding the objection that, the applications are bad in law for being supported by a defective affidavits which contain legal arguments, legal conclusions, prayers and contain objection on point of law; It is submittion by Mr. Chuwa that, in Misc. Land Application No. 25027 of io 2024, paragraphs 8 (b), (c), (d) and (e) are legal arguments and conclusions while paragraph 9 of the affidavit is a prayer. He stated that, affidavits for use in court are substitute of oral evidence. Thus, in his opinion, it should contain statements of facts and circumstances to which the witness deposes of his or her own knowledge. He added that, the affidavits are not supposed to contain extraneous matters by way of objections, legal arguments, conclusions or prayers. To embrace his argument Mr. Chuwa urged the Court to refer to the case of Uganda vs. Commissioner of Prisons Ex Parte Matovu (1966) E.A 514 and Juma Busiyah vs. The Zonal Manager, (South) Tanzania Post Corporation), Civil Application No. 8 of 2004 (unreported, Court sitting at Mbeya). In his reply, Mr. Mchome submitted that, paragraph 8 (a), (b), (c), (d) and (e) of the affidavit contains grounds or reasons to be relied upon by the applicants on their application for extension of time to file an application to set aside an ex-parte order and paragraph 9 is not prayer. Mr. Mchome submitted further that, in case this court finds paragraph 9 of his sworn affidavit is legally offensive, the remedy is to expunge it. He referred to the case of Jamal S. Nkumba & Another ii vs. Attorney General, Civil Application No. 240 of 2019 [2021] TZCA 756. It is a settled law in our jurisdiction that, the affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove or information which he or she receives from any other person. It follows therefore, matters of law, evidence, conclusions and arguments are not allowed in an affidavit. Thus, only statement of facts and circumstances are allowed in affidavits and not otherwise. In the case of Uganda vs. Commissioner of Prisons Exparte Matovu (Supra), the Court observed that:- "The affidavit sworn by the counsei is also defective. It is clearly bad in law. Again, as a general rule of practice and procedure, an affidavit for use in court, being a substitute of oral evidence, should only contain statements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information to which he believes to be true. Such affidavit must not contain extraneous matter by way of objection or prayer or legal argument or conclusion.” Also Order XIX Rule 3 of the Civil Procedure Code, Cap 33, Revised Edition, 2019 provides that: "3.1 Affidavits shall be confined to such facts as the deponent is ab/e of his own knowledge to prove, except 12 on interlocutory applications, on which statements of his belief may be admitted." Having gone through the affidavit sworn Mr. Mchome, I noted that, paragraph 8 (b), (c) and (d) are legal arguments and conclusions. I further noted that, paragraph 8 (e) contains statements purporting to be grounds on which the application is based (Points of law to be relied if Misc. Application 25027 of 2024 is granted) and paragraph 9 of the affidavit contains the statement emphasising existence of issues purporting to be grounds to be raised and grant of the prayers sought in the chamber summons. The question to be addressed is whether such an omission is fatal or curable. In the case of Phantom Modern Transport (1985) Limited vs D.T Dobie (Tanzania) Limited, Civil Reference No. 19 of 2001 (unreported) the Court of Appeal held that:- "Where the defects in an affidavit are inconsequential, those offensive paragraphs can be expunged or overlooked leaving the substantial parts of it intact so that the court can proceed to act on it. If however substantial parts of an affidavit are defective, it cannot be amended in the sense of striking off the offensive parts and substituting thereof correct averments in the same affidavit. But where the court is minded to allow the deponent to remedy the defects, it may allow the 13 deponent to remedy the defects, it may allow him or her to file a fresh affidavit containing correct averments." Guided by the above position, I find merit on the instant points of objection and I would proceed to strike out paragraph 8 (b), (c), (d), (e) and paragraph 9 of the affidavit in Miscellaneous Land Application No. 25027 of 2024, the rest of paragraphs would remain intact. I am of such holding as the said paragraphs are defective whose consequential order is to strike them out for the reason, which shall be apparent herein under; Regarding the objection that the affidavits are fatal defective for failure to disclose the source of information. In Misc. Land Application No.25027 of 2024, it was submitted that in the verification clause, Advocate Mchome did not disclose the source of information save for paragraph 2 in which he verified that it is the information he received from "all the applicants" while the paragraph shows that "the 1st applicant received the call from...". He added that, paragraph 2, 3, 4, 5, 6, 7 and 8 (a) are all information not of his own knowledge because he had never been in conduct of Land Case No. 333 of 2023. Therefore, he 14 does not have legal authority to verify as being of his own knowledge let alone swearing the affidavit. Similarly, in Misc. Land Application No.20999 of 2024, Mr. Chuwa submitted that, the verification clause in the affidavit sworn by Ms. Lamwai does not disclose the source of information. He added that, Ms. Lamwai never appeared in Land Case No. 333 of 2023 for the applicants. Accordingly to Mr. Chuwa, all the averments in her affidavit are not based on the knowledge of Ms. Lamwai as emphasized in the case of ABSA Bank Tanzania Limited vs. Hjordis Fammestad (Supra). Mr. Chuwa additionally submitted that, Salima Taibal verified all facts based on her own knowledge. However, paragraphs 3, 4, 5 and 6 are facts based on information received she received from Ms. Lamwai and her husband, the first applicant. Mr. Stephano Joshua Mchome responded to the submission by Mr. Chuwa by stating that the 1st applicant received a call from the Court Process Server is in itself presumptive more than a fact since the applicants were together when the first applicant received a call. Thus, it is his view that all applicants had personal knowledge of that pleaded fact. 15 Mr. Mchome further submitted that, in case this Court concludes that, the verification clause is defective for non-disclosure of the source of information, he prayed to amend the affidavit. He cited the case of Jamal S. Nkumba & Another vs Domina Kagaruki & Others, (Civil Reference No. 14 of 2019) [2021] TZCA 600 (20 October 2021). With regard to the defectiveness of the verification clause in the affidavit sworn by Ms. Mary Masumbuko Lamway, it was submitted by Ms. Lamwai that, she is the advocate of the High Court of the United Republic of Tanzania capable to swear an affidavit on behalf of her clients and the first applicant instructed and authorised her to represent him. She added that, being authorized by the first applicant is enough proof that the affidavit deponed by her represents correct facts that were to be exhibited by the first applicant in support of the application thus made the said affidavit to be that of the first applicant. Ms. Lamwai further argued that, she appeared and was recorded in the court proceedings on 19th August 2024 after hearing her retainer clients' names being called through the court speakers and she made official perusal as exhibited by annexture Al as deponed in paragraph 4 of the affidavit. To buttress her argument, Ms. Mary Lamwai referred to the case of Lalago Cotton Ginnery and Oil Mills Company Limited 16 vs. The Loans and Advances RealizationTrust (LART), Civil Application No. 80 of 2002 CAT. As envisaged from the affidavits and the submissions of the parties' counsel, it is vivid that, some facts were on the deponents' own knowledges and some were exploited from other sources, which the deponents are obliged to disclose their sources. For instance, part of paragraph 2 of the facts in the affidavit deponed by Mr. Mchome were the information obtained from the first applicant in the said application. However, in the verification clause it was verified that the said information was given by the applicants, something which is absolutely not true as the source of the information was from the 1st applicant only. For sake of clarity, paragraph 2 of the affidavit sworn by Mr. Mchome is reproduced "2. That, on 23/09/2024, the 1st applicant received a call from phone number +255 759613 123, the peron on the other end of the phone introduces herself as a Court Process Server and was calling with intention of serving summons to the 1st applicant...Soon, after the said Conversation, the 1st applicant sent to the Court Process Server's phone number to his advocate" VERIFICATION 17 I STEPHANO JOSHUA MCHOME, the deponent hereby verify all what is stated in paragraphs 1, 3..... Is true to the best of my knowledge and under paragraphs 2 and part of paragraph 4 is in accordance with the information given by the applicants Similarly, paragraph 4 of the affidavit is not the information that advocate Mchome was given by the applicant but the same is in accordance with his knowledge after perusal of the records in Land Case No. 333 of 2024. Regarding part of paragraph 2 and paragraphs 3, 4, 5 6, 7 and 8 (a) I find that the statement of facts therein are in the deponent's own knowledge he obtained on 24th September 2024 after receiving the notice of hearing, the chamber summons and affidavit on Misc. Land Application No. 20999 of 2014 and upon his perusal of the Court file in Land Case No. 333 of 2023. As to the affidavit sworn by Ms. Lamwai, I find that she became aware of the existence of Land Case No. 333 of 2023 on 19th August, 2024, when she heard the names of the applicants (her retainer clients) being called and requested to enter in my chamber and entered appearance and later on made official perusal of the court file regarding 18 an ex-parte order entered against the applicants in Land Case No. 333 of 2023. However, it is my findings that, part of paragraph 13 of the affidavit of Ms. Lamwai contains information that, she obtained from the first applicant regarding his flight from Dar es Salaam to Mumbai and his tight schedule and that, she was supplied with flight routing by him. Therefore, the said paragraph was on the deponent's own knowledge in regard to supply of flight routing to him, which in accordance with the verification clause as opposed to the fact that, the first applicant had tight working schedule. According to Salima Taibali's verification, I find contents in the paragraphs 3, 4 and 7 are the lucid information that, the 2nd applicant obtained information from Ms. Lamwai and the second applicant, which is not as per her personal knowledge. It is my considered view, the second respondent's verification is therefore defective as she ought to specify the paragraph or paragraphs which are based on her knowledge or belief and those on information. As a general rule of practice and procedure, an affidavit for use in our courts, being a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes 19 either of own personal knowledge or from information which he believes to be true. In the case of Director of Public Prosecutions vs. Dodoli Kapufi and Patson Tusalile, Criminal Application No. 11 of 2008 (unreported), the Court of Appeal with approval of Taxmann's Law Dictionary D.P Mittal at page 138 stated I quote; a statement in the name of a person/ called deponent by whom it is voluntary signed or sworn to or affirmed It must be confined to such statements as the deponent is able of his own knowledge to prove but in certain cases may contain statements of information and belief with grounds thereon." It therefore follows that, an affidavit has to show which facts are true as to the deponent's own knowledge and which facts are obtained from another source. The deponent has to disclose the source of information as correctly done by the 2nd applicant. However, the second applicant's affidavit is at variance with her verification as in her verification she stated that all facts in the paragraphs 1 to 7 are true to her best knowledge while the information which she receives from her husband and her advocate. In the case of Salima Vuai Foum vs. Registrar of Cooperatives TLR [1995], the Court of the Court of Tanzania stated: 20 "1. Where an affidavit is made on information it should not be acted upon by any court unless the sources of information are specified. 2. As nowhere in the affidavit, either as whole or in any particular paragraph it is stated that the facts deposed to or any of them/ and if so which ones, are true to the deponent's knowledge, or as advised by his advocate, or are true to his information and belief, the affidavit was defective and incompetent, and was properly rejected by the ChiefJustice" The same position of the laws was equally stressed in the case cited by Mr. Edward Chuwa of ABSA Bank (T) Limited & Another vs. Hjordis Fammestad, (supra) where the Court of Appeal at page 14 of the judgment stated;- The 2nd applicant is a natural person. It is unknown how did he authorize Mr. Pesha, a stranger to the case to depose the facts on his behalf. Again, Mr. Pesha verified all facts deposed therein as true to the best of his own knowledge. See also a jurisprudence in Anatol Peter Rwebangira vs. The Principal Secretary of Defence and AG, Civil Application No. 548/04 of 2018 (unreported) Judgment delivered on 13th May 2019, when the Court of Appeal encountered with the similar situation 21 It is common ground that, the source of information must always be disclosed followed by a proper verification of the facts pleaded by the deponent as opposed to the applications at hand In the upshot, I sustain preliminary objections raised by the 1st and 2nd respondents on the defective verifications in both applications as opposed to other points of law. I consequently proceed to strike out the applicants' applications. The applicants shall bear the costs of the applications It is so ordered. DATED at DAR ES SALAAM this 23rd December 2024 22