uthman madati vs tatu o farahani and another 2021 tzhclandd 367 26 july 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC, LAND APPLICATION NO. 389 OF 2020 (Arising from Misc. Land Application No. 788 of 2017) UTHMAAN MADATT (Administrator of the Estate of the Late JUMA POSANYIMADATI)..................................... APPLICANT VERSUS TATU O. FARAHANI....................................... 1st RESPONDENT SALIM MADATI............................................. 2nd RESPONDENT RULING S, M. MAG HIM BL J Before is an application containing two distinct prayers, the first prayer is for extension of time for setting aside abatement order of the this Court dated 22nd March, 2019 in Misc Land Application No.788 of 2017. The order is sought under the provisions of Section 14(1) of The Law of Limitation Act [Cap 89 R.E. 2002]. The second prayers is for setting aside an abatement order of the High court of Tanzania Land Division at Dar es salaam before Honorable Judge Masabo dated 22nd March, 2019 in Misc Land Application No. 788 of 2017. The prayer was made under the provisions of Order XXII Rule 9(2) of The Civil Procedure Code, [Cap 33 R.E. 2002]. On her part, while filing her counter affidavit, the 1st respondent also raised two preliminary points of objection namely:- 1. That the application to set aside the abatement order of the High Court of Tanzania (Land Division) at Dar Es Salaam (Hon. Madam i Justice Masabo) dated 22nd March, 2019 in Misc. Land Application No. 788 of 2017 is hopelessly time barred. 2. The Application is bad in law for being omnibus. The substance of the application was argued by way of written submissions. Mr. Joseph Kipeche, learned Advocate was for the Respondent and Mr. Daimu Halfani, learned Advocate represented the Applicant. I have given the rival submissions due consideration in line with the affidavit and reply thereto. I must point out at the onset that the applicant herein had also lodged a Misc. Land Application No. 388/2019 seeking for the identical orders, this time against the decision of this court in Misc. Misc Land Application No. 737 of 2017 before Hon. Mgonya, J. In that application, I found as I have found in this application, that the affidavit in support of the Chamber Summons contains untrue statements. For instance on para 5 of the affidavit the applicant has deponed that the late Posanyi Juma Madati had instituted a Land Case No. 17/2013 against the respondent, he attached the Pleadings as annexure "B" to the affidavit. On para 6 of the same affidavit he pointed out that the said judgment was attached as annexure ttC" collectively. I then went on to peruse the said annexure only to find out that the Judgment that was attached to the affidavit, which indeed involved the parties to this case is for Land Case No. 18/2013 and not Land Case No. 17/2013 as pointed out by the applicant. As per the records of this Court, the deponed Land Case No. 17/2013 was between Debra Wilfred Malekia Vs. Alex Mhagama and neither the late Juma Posanyi Madati nor Tatu O. Farahani were parties to it. Furthermore, on para 10, the applicant deponed of a presence of a Land Case No. 123/2013, a case 2 which had not been mentioned in the previous para and from the sequence of narrations in the affidavit, the cases mentioned in para 5 and 6 of the affidavit were Land Case No. 17/2013 which did not involve the parties herein. The said Land Case No. 123/2013 was neither annexed to the affidavit. On those observations, it is obvious that the applicant's affidavit contains some untrue statements as well as missing some evidence of the existence of the cases that the applicant seeks remedy from. The effect of an affidavit which contains untrue statements was narrated in the case of Ignazio Msina v Willow Investment CPRA, Civil Application No. 21 of 2001 CAT (unreported) where the court held: "/1/7 affidavit which is tainted with untruth is not an affidavit at all and cannot be relied upon to support an application. The rules governing the form of affidavits cannot be deliberately flouted in the hope that the court can always pick the seed from the chaff, but that would be an abuse of the court process. The only assistance the Court can give in such a situation is to strike out the affidavit." As for the affidavit in support of this application, it contains untrue statements. It is therefore incompetent and has to be struck out of this application which I hereby so do. This renders the Chamber Summons fatally defective for having no supporting affidavit. Consequently, the application is hereby struck out without costs. Dated at Dar-es-salaam this 26th day of July, 2021. JUDGE. 3