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The High Court in Mwanza overruled preliminary objections in a land application, holding that a request for temporary orders was not a “suit” requiring statutory notice.
The court is functus officio as the issue of supervision of revenue collection from the disputed properties was conclusively determined in prior proceedings, and the status quo to be preserved includes the respondents' supervision. The supporting affidavit is fundamentally defective for containing hearsay and a defective verification clause, rendering the application incompetent.
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The High Court held that omission of the advocate’s signature on the plaint was a curable defect, while the verification-clause objection was not a pure point of law.
The respondent lacked locus standi as the application was prosecuted by a person not properly appointed via power of attorney, and the power of attorney was not tendered and admitted as evidence; this defect rendered the application incompetent and disposed of the appeal without need to address other grounds.
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A defective verification clause is a fatal defect that cannot be cured by the overriding objective principle; each paragraph must be individually verified as required by law.
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The applicant's affidavit contained hearsay statements and lacked proper verification of sources. Expunging the defective paragraphs left no sufficient grounds to support the application for extension of time, rendering the application incompetent.
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The affidavit in support of the application was incurably defective because the advocate swore it as if he were the applicant and failed to disclose the source of information in the verification clause; such defects are not curable and render the application incompetent.
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The plaint sufficiently discloses the period when the cause of action arose and describes the disputed land, meeting the requirements of Order VII Rules 1(e) and 3. The omission to annex documents is curable and does not warrant striking out the suit. Locus standi and cause of action objections require evidence and are not pure points of law. However, as to the 2nd defendant, the suit is res subjudice due to a pending appeal on the same subject matter between the same parties, and thus cannot be entertained against him.
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An affidavit sworn by a company's manager is not defective solely because the manager was not personally involved in the underlying proceedings, provided he verifies the affidavit as manager and is presumed to have knowledge of the company's affairs. Disclosure of the source of information is not required in such circumstances. The verification clause is proper and the preliminary objection is overruled.
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The application is incompetent due to fatal defects in the supporting affidavit, including unsigned jurat clauses by several applicants and a contradiction in the number and identity of applicants, making it impossible to ascertain who the real applicants are. Such defects are not mere technicalities but go to the root of the application, warranting its striking out.
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