registered trustees of redeemed assembles of god in tanzania ragt vs obed heziron sichembe another 2016 tzhc 2149 9 may 2016

IN THE HIGH COURT OF TANZANIA AT MBEYA MISC. LAND APPLICATION NO. 20 OF 2015 THE REGISTERED TRUSTEES OF REDEEMED ASSEMBLIES OF GOD IN TANZANIA (RAGT)......................................... APPLICANT VERSUS 1. OBED HEZIRON SICHEMBE 2. THE REGISTERED TRUSTEES v .................RESPONDENTS OF TANZANIA ASSEMBLIES OF GOD (TAG) J RULING Date o f last Order: 20/ 04/2016 Date o f Ruling: 09/05/2016 A.F. NGWALA, J. The objection that was raised by Advocate Romanus Lamwai for the Respondents is in respect of the Application for Extension of Time to Appeal to the Court of Appeal of Tanzania. The Application was filed by Mr. Mushokorwa, the learned Counsel for the Applicant. Mr. Romanu’s argued that there is no such decision dated 13th November, 2013 as stated in the Affidavit of James Kyando. The Ruling that was attached to the Application by Advocate Kyando as Annexeture A1 was delivered on 12th November, 2013. l For this reason Mr. Romanus Lamwai contended that there was no proper Application before this court. He therefore prayed for the Application to be struck out with costs. On his part, Mr. Mushokorwa admitted the mistake on the date of the decision mentioned in the Affidavit and Mr. Kyando’s Affidavit. Mr. Mushokorwa submitted that the intended appeal is against the decision dated 12th November, 2013 and not 13th November, 2013. According to him this is a typographical error, as such an error should not be given prominence at the sacrifice of justice. The case of A. Salanji vs. M. M. Pemba [1992] T.L.R. 62 was cited in support of this contention. Mr. Mushokorwa argued that if there was any misleading information it should be looked at the Ruling itself which was attached in their respective affidavits. He urged this court not to be driven by unnecessary technicalities because not every “irregularity is fatal.” The cases of Maneno Mengi vs. Farida Said [2004] T.L.R.391, Ahmed vs. Mkusa [1997] T.L.R. 54 and Article 107A (2) of the Constitution of the United Republic of Tanzania were referred to support the holding that court are enjoined not to embark on unnecessary technicalities in dispensing justice. Finally he prayed the objection to be overruled. 2 In rejoinder Mr. Romanus Lamwai submitted that a typographical error cannot be in both affidavits of two different deponents citing the same date. He distinguished the decisions cited by Mr. Mushokorwa by saying that cannot cure the situation. The only remedy was by filing a supplementary affidavit and not to seek remedy by way of Article 107A of the Constitution. It was his argument that since there is no decision on the date stated in the affidavit that Ruling is not in existence. In the case of DB Shaprya & Co. Ltd vs. Bish International BV, Civil Application 53 of 2002, the Court of Appeal of Tanzania at Dar Es Salaam an affidavit is defined as follows “An Affidavit is a written document containing material and relevant facts or statements relating to the matters in question or issue and sworn or affirmed and signed by the deponent before a person. ” In view of the definition, it is clear that both the affidavits of Mr. Mushokorwa and Mr. Kyando Advocates have stated in their respective affidavits that the intended Appeal is against the Ruling of this court dated 13th November, 2013. Having perused the records I agree with Mr. Romanus that there is no such decision in the record dated 13th November, 2013. Fortunately, Mr. Mushokorwa has agreed that it was indeed a mistake to write that the decision the Applicant is intending to appeal is against the Ruling of this court dated 12th November, 2013 in Annexeture A. Regarding his argument that the same is a 3 typographical error curable under Article 107A (2) of the Constitution where courts are urged not to embark on unnecessary technicalities as per the case of Maneno Mengi vs. Farida Said (supra) and Ahmed vs. Mkusa (supra); it is my considered opinion that the fact that there are the provisions of article 107 (A) (B) of Constitution, they cannot override other procedural laws on adjudication of cases. The affidavits sworn by both Advocates for the Applicant which contain materials and relevant facts or statements relating to the matters in question must contain correct and true information on the intended Appeal. The court must be supplied with pertinent information in the affidavit. Mr. Mushokorwa’s argument that if there is any misleading information they should be looked at in the Ruling cannot be simply overlooked in because the error does not go to the root of the matter is substantiated. I hold so. I am aware that the courts are urged to administer substantive justice without undue regard to technicalities. In this matter I cannot hardly rely on the element of typographical error in regard to the decision which is said to be delivered on 13th November, 2013 cited by both advocates for the Applicant on their affidavit whereas the decision supplied in court was delivered on 12th November, 2013. 4 It is without a doubt that the courts have been delivering decisions almost everyday on the working days. What if there was another decision over the same matter which was delivered on 13th November, 2013. This is a question which this court cannot let it slip away. The Applicant has supplied this court with two different dates of the said decision. The Applicant intends to Appeal against a decision that cannot stand as a mere typographical error. Such an error goes to the root of the Application. Article 107A of the Constitution and the cited cases by Mr. Mushokorwa cannot cure such error. I agree with learned Counsel Mr. Lamwai that there is no such decision on the date as stated in the affidavit of the applicant. Therefore this court cannot decide on the improper Application. If at all the Applicant intended to Appeal against the decision on Annexeture “A” it should be clearly stated so in the affidavit. Having said that, the objection is sustained. The Application is struck out with costs. M A.F. NGWALA ' JUDGE 09/05/2016 5 Date: 09/05/2016 Coram: A. F. Ngwala, J. Applicant: Absent 1st Respondent: Present 2nd Respondent: Present Court: Ruling delivered in court in the presence of the Respondents. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 09/05/2016 6