20140211 TZCA Bukoba
- Citation
- 20140211 TZCA Bukoba
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZCA
- Decision
- 11 February 2014
- Posture
- Criminal Application / Application for Extension of Time to Lodge Review
- Language
- English
More details
- Court
- TZCA
- Decision
- 11 February 2014
- Posture
- Criminal Application / Application for Extension of Time to Lodge Review
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
An unattested affidavit is incurably defective and renders the application incompetent under Rule 48(1) of the Court of Appeal Rules, 2009.
Court disposition
Application struck out as incompetent.
Orders
- The application is struck out.
02
Material facts
Parties
Tryiphone Kabitina
ApplicantThe Republic
Respondent Counsel: Paul Kadushi03
Procedural history
Posture
Criminal Application / Application for Extension of Time to Lodge Review
04
Questions and positions
Legal issues
Whether an application for extension of time can be entertained when the supporting affidavit is not attested
Party arguments
- Applicant
- Requested the Court to consider the application without addressing the affidavit defect.
- Respondent
- Argued the affidavit was not attested, contravening Rule 48(1) of the Court of Appeal Rules, rendering the application incompetent.
05
Court’s reasoning
Legal principles
- 01
Rule 48(1) of the Court of Appeal Rules, 2009
A notice of motion must be supported by a properly attested affidavit for the application to be competent.
06
Ratio, limits and disposition
Ratio decidendi
An unattested affidavit is incurably defective and renders the application incompetent under Rule 48(1) of the Court of Appeal Rules, 2009.
Court disposition
Application struck out as incompetent.
- The application is struck out.
Source and reliance status
TZCA · 11 February 2014
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZCA
Judgment· 11 February 2014
.J
IN THE COURT OF APPEAL OF TANZANIA
AT BUKOBA CRIMINAL APPLICATION NO. 5 OF 2013 TRYIPHONE KABITINA .....••••••••..•••...•.••.•••...•••.....•.•.•••••••.••••••.••.•-~- APPLICANT
VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Application for extension of time to lodge Review in the Court of Appeal (T) at Mwanza) (RUTAKANGWA, KIMARO, AND ORIYO, JJJ.) dated the 12th day of October, 201-1 in Criminal Appeal No. 180 of 2009 ................
RULING 11th & 1th February 2015. LUANDA, l.A.: This is an application for extension of time to enable the applicant file an application for review. The application has been made under Rule 10 of the Court of Appeal Rules, 2009 (the Rules). Before hearing the application, Mr. Paul Kadushi learned State Attorney who represented the respondent/Republic rose up and informed 1 the Court that the affidavit accompaning the notice of motion is not attested at all. So, there is no affidavit to look into it for the Court to consider the application on merits. This, he went on, contravened Rule 48(1) of the Rules which requires a notice of motion to be supported by an affidavit. Since the notice of motion is not supported by an affidavit, the application is incompetent. The same should be struck out, he charged. The applicant had nothing useful to contribute apart from asking the Court to consider his application. It is true as observed by Mr. Kadushi that the notice of motion is supported by a defective affidavit in that it is not attested at all. An affidavit which is not attested by Commissioner for oath is as good as no affidavit to have been attached along with a notice of motion. In terms of Rule 48(1) of the Rules, for the application to be properly filed the notice of motion must be file along with an affidavit. Since the affidavit is incurably defective the application is incompetent. 2 '\ The same is struck out. B.M. LUANDA
JUSTICE OF APPEAL I certify that this is a true copy of the original . .M ZU
EGISTRAR
OF APPEAL 3
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