- FULL-TIME: ATLETICO MADRID 1-0 BAYERN MUNICH
- 90'+5'With just seconds remaining, Bayern are pushing as many bodies forward as possible. Vidal picks up the ball over on the left wing and sends a great cross right on to the head of Ribery, but the Frenchman can only send his header straight into the hands of Oblak in the middle of the goal.
- 90'+3'And now Gameiro goes close! The resulting corner bounces over to the right-hand side of the box, where this time it's Gameiro who is left in space by the Bayern defenders, but his rocket of a shot ends up flying into the side-netting.
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90'+2'SubstitutionAntoine Griezmann Thomas Teye Partey
Atletico have made a late defensive change, with Partey coming on to replace Griezmann for the final few minutes of the game. - 90'+1'Chance for Godin! Atletico win themselves a free-kick midway inside the Bayern half of the pitch, which is quickly chipped over to the far post. Godin is left in far too much space by the visitors and is able to pick up the ball before unleashing a thumping volley, but it deflects off Lahm and flies over the top of the crossbar.
- 90'The fourth official has indicated that there will be five minutes of added time.
- 89'Bayern are bossing possession at the moment but just can't seem to do anything with the ball in advanced areas. Atletico have every available player camped behind the ball and are doing incredibly well to keep the visitors at bay and hold on to their slender lead.
- 87'The resulting free-kick is chipped into the middle of the Bayern penalty area by Koke, but it fails to find a red and white shirt and is easily dealt with by the visitors before they win themselves a free-kick further up the pitch.
- 86'Yellow Card Arturo Erasmo Vidal Pardo
Vidal crashes into Saul and sends the midfielder crashing to the ground with a hefty challenge 25 yards away from the Bayern goal. Both players are hurt by the coming together and look to be in serious pain, but it doesn't stop the referee from showing the Chilean a yellow card as soon as he's able to get back to his feet. - 84'Missed Penalty Antoine Griezmann
MISS! Griezmann steps up and scoops his strike straight on to the crossbar after beating Neuer. Bayern live to fight another day, but will they be able to take advantage of the Frenchman's miss with a late equaliser? - 83'PENALTY! Atletico come back once again and Luis picks up the ball over on the left-hand side of the Bayern box, but as soon as he does he clattered into by a reckless, clumsy challenge from Vidal, leaving the referee with no choice but to point to the spot. What a chance this is for Atletico to double their lead...
- 82'Luis breaks into the left-hand side of the Bayern penalty on a great run and heads towards the near post before unleashing a thumping low strike, but Martinez is just about able to throw his body in the way of the ball to stop it from testing Neuer.
- 81'Fantastic opportunity for Robben! Bayern move the ball around really nicely before Vidal and Robben link up brilliantly on the edge of the Atletico penalty area, but the Dutchman's curling strike ends up flying just past the far post. That was far better from the Bavarians!
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79'SubstitutionFernando José Torres Sanz Osvaldo Nicolás Fabián Gaitán
Atletico have made their second substitution of the night, with Gaitan coming on to replace Torres. - 77'What a chance for Lewandowski! A Bayern attacking move breaks down and Atletico immediately try to hit them on a swift counter-attack, but Torres is dispossessed by Hummels and the Bavarians push forward once again. They work the ball around patiently before a lovely cross is curled into the box by Alonso, but Lewandowski's header ends up bouncing just past the far post.
- 75'Griezmann goes close! Torres breaks into the right-hand side of the Bayern penalty area after beating Hummels far too easily and heads towards the byline before chipping a lovely cross over to the far post, but Griezmann is immediately put under pressure by Martinez and ends up sending his close-range headed effort looping over the top of the crossbar and on to the roof of the net.
- 73'It just isn't working for Bayern, who look bereft of ideas in advanced areas. After spending an age passing the ball around midway inside the Atletico half of the pitch, Hummels eventually tries to pick out Lahm with a deep cross over to the far post, but it's completely overhit by the centre-back and flies harmlessly out of play for a goal-kick.
- 72'SubstitutionYannick Ferreira Carrasco Kevin Gameiro
Carrasco receives a rousing round of applause from the home fans as he makes his way off the pitch to be replaced by Gameiro. - 70'Atletico come back once again and work the ball over to Gabi, who then thumps a lovely deep cross towards the far post. It flies over the top of the Bayern defence and almost finds Torres in front of goal, but it sails just past the outstretched foot of the striker and into the hands of Neuer.
- 69'And now almost an opportunity for Torres! Griezmann picks up the ball on the edge of the Bayern box and immediately flicks it over to Torres, who is in a great position over to his right, but the striker's first touch is poor and sends the ball squirming under his feet just as he's about to shoot.
- 68'Great chance for Carrasco! The Belgian, who has seen little of the ball since the half-time break, is left in a pocket of space just outside of the Bayern penalty area and is allowed to unleash a bouncing low shot, but Neuer does well to dart across his goal before pushing it away with a smart diving save.
- 66'SubstitutionThiago Alcântara do Nascimento Joshua Kimmich
Thiago has been walking a tightrope recently with some of his rash challenges, so Ancelloti has decided to replace him with Kimmich in Bayern's final alteration of the night. - 65'It's all Bayern at the moment as they patiently work the ball around the Atletico half of the pitch, but, as has been the case for the vast majority of the evening, the home side are putting them under an incredible amount of pressure as they continually make it very difficult for the visitors in advanced areas.
- 63'Ribery is caught as he tries to advance down the left wing, resulting in a free-kick for Bayern in an advantageous position 30 yards away from the Atletico goal. Alonso steps up and chips a dangerous cross into the heart of the penalty area, but Godin is there to clear the danger with a strong header.
- 62'SubstitutionJérôme Boateng Mats Hummels
Boateng has been replaced by Hummels in Bayern's second change of the evening. - 60'Big call by the referee! Thiago charges into Carrasco and catches the Belgian on the leg with a rash challenge. He's already been booked and immediately looks to the referee with a look of shock in his eyes, but the man in charge decides not to show him a second yellow card and instead just gives him a stern talking to.
- 59'SubstitutionThomas Müller Arjen Robben
Bayern have made their first substitution of the game, and it's a very interesting one, with Muller making way for Robben for the final 30 minutes of the game. - 58'Saul and Juanfran link up well just outside of the Bayern box before the latter tries to tee up the former with a poked pass into the box, but Alaba sticks out a foot and is just about able to stop the ball from finding the Atletico midfielder, who had made a great run forward.
- 56'Chance for Alaba! Ribery weaves his way down the left flank before cutting inside and teeing up Alaba, who is left in a pocket of space by the home side, but the full-back's thumping strike is sent straight at Oblak and the goalkeeper is easily able to push it out for a corner.
- 54'A poor pass from Luis gifts the ball to Lahm, who bursts forward before finding Muller over on the right wing. The forward takes a couple of quick touches before curling a low cross towards Lewandowski, who had made a good run into the Atletico penalty area, but it's unable to find the striker and is easily cut out on the edge of the box.
- 52'Alaba breaks down the left wing before winning Bayern a throw-in, which is sent short before being worked back to full-back. He then fires a volleyed cross into the penalty area and towards Muller, but Godin is there to beat the forward to the ball at the vital moment.
- 50'Free header for Muller! The corner is sent deep and finds Muller completely unmarked on the right-hand side of the six-yard box, but his diving header isn't executed cleanly enough to test Oblak, who is able to watch the effort bounce into the side-netting.
- 49'Vidal is brought down by Gabi and Bayern are awarded a free-kick in a dangerous position in the middle of the pitch. Alonso steps up and curls a cross over to the far post, but Savic is there to rise high above Martinez and head the ball out for a corner over on the left wing.
- 48'Great run from Juanfran! The right-back flies forward on a brilliant run as he weaves his way through a group of black shirts. He heads towards the edge of the Bayern penalty area and then tries to poke a through-ball into the path of Torres inside the box, but it's overhit and fails to find the striker.
- 47'Atletico immediately win the ball and push forward on a patient attacking move deep down the left wing. Koke picks up possession in a pocket of space 30 yards away from the Bayern goal and quickly curls a cross into the heart of the penalty area, but there's nobody there to meet it and the ball ends up flying into the hands of Neuer.
- 46'And we're underway once again!
- The two teams are making their way back out on to the pitch ahead of the start of the second half. Neither side have made any substitutions during the half-time break.
- Atletico head into the half-time break with a 1-0 lead and they certainly deserve to be in front. The home side have been the better of the two sides thus far thanks to a hard-working and intense performance all over the pitch. Simeone's men have done wonderfully well to put their opponents under an incredible amount of pressure with their high pressing, which has ruined the flow of the visitors' attacking moves and has made life tough for their central midfielders, who have struggled to control the game as a result.
- HALF-TIME: ATLETICO MADRID 1-0 BAYERN MUNICH
- 45'Ribery is involved in a good Bayern move once again and this time tees up Muller, but the German's attempted flick over to Lewandowski fails to find the striker and Atletico are able to hold on to their slender lead with just a few more seconds left to play of the first half.
- 43'Ribery picks up the ball on the edge of the Atletico box and immediately threads a deft pass into the path of Alaba. The full-back meets it well over on the left wing before firing a low cross towards the near post, where Lewandowski is waiting, but the Poland international is unable to make decent contact with the ball and Oblak can cut out the danger.
- 42'Atletico quickly win back possession and push forward again before winning themselves a throw-in deep down the right wing. It fails to come to anything, however, and Bayern are able to break away on a counter-attack that's brought to a premature end by a clumsy challenge on Lewandowski by Godin.
- 40'Yellow Card Jérôme Boateng
Boateng becomes the third Bayern player to receive a booking after catching Saul with a late challenge over on the right wing. A wonderful curling free-kick is sent into the heart of the penalty area, where it almost finds Godin, but the centre-back is penalised for pushing as soon as he jumps into the air. - 38'Golden opportunity for Ribery! The Frenchman cuts inside from the left wing and plays a smart one-two with Lewandowski before winning the ball back. Godin falls backwards at the worst possible moment and allows the Bayern winger to strike the ball, but he scuffs his shot slightly and sends it bouncing agonisingly wide of the near post. He really should have got that on target!
- 37'Atletico hit Bayern on a similar counter-attack after picking up the ball in the middle of the pitch, and this time it's Torres who's presented with a chance to shoot. He darts towards the edge of the Bayern box before looking to unleash a strike, but he's out-muscled by Martinez at the vital moment to stop him from doing so.
- 35'Assist Antoine Griezmann
Griezmann did well to pick out Carrasco after Alonso made an error in the build-up, but great pressing from Atletico is what made that goal possible. Bayern look slightly rattled in the middle of the pitch and haven't been anywhere near as effective as they would have wanted to be. - 35'Goal Yannick Ferreira Carrasco
GOAL! Atletico have taken the lead! The home side win back possession in the middle of the pitch before embarking on a quick counter-attack through Carrasco. He flies forward on an excellent run before penetrating the penalty area, and he then fires a lovely low shot past the outstretched limbs of Neuer and into the back of the net via the far post. - 34'Torres hits the side-netting! A lovely through-ball from Saul flies through the middle of the Bayern back line and into the path of Torres, who is in a great position over on the left-hand side of the box, but he can only send his strike into the side of the net after beating Neuer with a thumping shot.
- 33'Yellow Card Thiago Alcântara do Nascimento
The throw-in fails to come to anything after a poor pass is well dealt with by Luis. The Brazilian then cuts inside before embarking on a marauding run towards the halfway line, but he's cynically tripped by Thiago, who receives the latest yellow card as a result. - 32'It's all Bayern at the moment as they continue to boss possession inside the Atletico half of the pitch. The ball eventually finds its way to Ribery, who is in a good position deep down the left flank, but he's unable to beat Juanfran and has to settle for a throw-in near to the corner flag.
- 30'Vidal clatters into Koke and brings the midfielder crashing to the ground, resulting in a free-kick for Atletico in a dangerous position over on the left flank. The set-piece is curled into the middle of the Bayern penalty area, where six red and white shirts are waiting, but it's overhit and fails to find any of them before bouncing into the hands of Neuer.
- 28'Alaba picks up the ball in a pocket of space over on the left wing, but his swinging cross fails to find Lewandowski. The ball bounces out to Lahm, however, and the Bayern captain is more successful with his ball into the box, but, despite doing well to meet it, Lewandowski can only send his headed effort straight into the hands of Oblak in the middle of the goal.
- 26'Yellow Card Philipp Lahm
After a nervy few moments, Bayern are able to get on the ball once again as they patiently work their way into the Atletico half of the pitch. Lahm receives possession deep down the right wing and tries to take on Luis, but his foot is slightly raised and ends up catching the full-back on the nose, resulting in a yellow card. - 24'Almost another chance for Torres! Griezmann drifts out to the left channel and picks up the ball unopposed before swinging a low cross into the heart of the Bayern box, but it ends up rolling just a yard or two past Torres, who darted in to the penalty area in an attempt to reach the ball.
- 22'Torres hits the post! The corner is whipped towards the near post, where it deflects off Lewandowski and over to the far post. Torres is in a pocket of space just a few yards away from goal, but somehow he sends his headed effort straight into the woodwork instead of the back of the net. He really should have done better with that golden opportunity!
- 20'Luis drives down the left wing on a brilliant run and penetrates the penalty area before chipping a cross towards Griezmann, but Alonso sticks out a foot and is just about able to clear the ball out for a corner before it can find the striker in front of goal.
- 18'Chance for Carrasco! The Belgian weaves his way towards the Bayern penalty area on a great run before firing a low shot past Martinez and towards the bottom right-hand corner of the net, but Neuer gets down well and pushes the strike away from danger with a smart save. The game is starting to open up a bit more now and both sides are enjoying themselves in front of goal.
- 17'Juanfran gets himself in a pocket of space deep down the right wing and tries to take on Alaba, but the left-back stands tall and does well to knock the ball out for a throw-in. It's sent short and worked over to Saul, but the midfielder is quickly closed down by both Juanfran and Thiago before being dispossessed on the edge of the box.
- 15'Yellow Card Saúl Ñíguez Esclapez
Saul fails to control the ball on the edge of the Atletico penalty area and instead sends it bobbling out to Vidal, who is then clattered into by the midfielder, resulting in a free-kick in a dangerous position. Alaba takes the set-piece and unleashes a thumping shot from it, but it deflects off the wall of red and white shirts before sailing out for a corner. - 13'Fantastic stop by Oblak! Atletico look slightly nervy at the back and are unable to fully clear the danger after Bayern push plenty of bodies forward. It allows Thiago to pick up the ball unopposed before chipping a beautiful pass on to the outstretched foot of Muller, but Oblak is there to deny the forward with an excellent diving save from point-blank range.
- 11'Great chance for Torres! The Atletico striker breaks into the right-hand side of the Bayern penalty area and does well to take advantage of sloppy play by Martinez, but the defender redeems himself with a strong tackle at the vital moment before the striker can get a shot away. He appeals for a penalty, but the referee isn't interested and waves play on.
- 9'Alaba breaks down the left flank nicely before swinging a dangerous cross into the Atletico penalty area, where it almost finds Lewandowski. However, the Polish striker is pounced upon by red and white shirts and is unable to reach the ball as a result.
- 7'Bayern have seen the majority of the ball thus far but, unsurprisingly, Atletico have been hassling them with incredible effect. The Bavarians haven't been given a chance to settle on the ball and it's meant that they haven't been able to string together a decent series of passes yet.
- 5'Vidal brings Griezmann crashing to the ground with a crunching challenge that results in a free-kick for Atletico. It's sent short and worked over to Juanfran, who then tries to tee up Saul, but his pass is overhit and rolls out of play for a goal-kick.
- 3'A lofted pass is thumped into the Atletico box, where Godin is put under pressure by Lewandowski and forced into heading the ball out for the first corner of the night. It's curled towards the near post but fails to beat the first man and Atletico are comfortably able to deal with the danger.
- 2'Bayern move the ball around nicely in the opening stages of the game before a curling cross is flung towards Lewandowski. It finds the striker on the edge of the Atletico penalty area but his first touch is slightly too heavy and sends the ball to Savic, who then clears it with ease.
- 1'And we're off! Atletico get us underway, attacking from left to right.
- The two sides are making their way out onto the pitch, with just a few minutes to go until kick-off. The atmosphere inside the stadium is electric, with both sets of fans in fine voice.
- Meanwhile, Bayern boss Carlo Ancelloti has also made four alterations to the team that featured against Hamburg in their last outing, with Mats Hummels, Joshua Kimmich, Renato Sanches and Kingsley Coman making way for Jerome Boateng, Arturo Vidal, Xabi Alonso and Franck Ribery.
- Diego Simeone has decided to make four changes to the Atletico side that started the 1-0 victory against Deportivo de La Coruna on the weekend, with Stefan Savic, Gabi, Saul Niguez and Fernando Torres coming into the starting line-up to replace Jose Gimenez, Nicolas Gaitan, Augusto Fernandez and Angel Correa, respectively.
- Bayern Munich substitutes: Ulreich, Rafinha, Hummels, Sanches, Kimmich, Robben, Coman.
- Bayern Munich XI (4-3-3): Neuer; Lahm, Boateng, Martinez, Alaba; Vidal, Alonso, Thiago; Muller, Lewandowski, Ribery.
- Atletico Madrid substitutes: Moreira, Vrsaljko, Lucas, Thomas, Gaitan, Correa, Gameiro.
- Atletico Madrid XI (4-4-2): Oblak; Juanfran, Godin, Savic, Luis; Carrasco, Gabi, Saul, Koke; Torres, Griezmann.
- There’s just over 15 minutes left to go until kick-off, so let’s have a look at how the two teams will be lining up this evening…
- Tonight’s game is a replay of May’s semi-final, one that Atletico just about managed to win on away goals thanks to two defensively solid displays. With Rostov and PSV arguably battling for third place, a victory this evening could go a long way to deciding which of these two sides tops the group come December, meaning that today’s game is guaranteed to be just as hard-fought as their last coming together four months ago.
- As for Bayern, their 100% league record remains intact thanks to Saturday’s victory against Hamburg, although it was one that the Bavarians only just managed to win thanks to a last-minute Joshua Kimmich goal. Five wins from five games has sent them straight to the top of the Bundesliga, whilst they absolutely demolished Rostov 5-0 in their opening Champions League game two weeks ago.
- A 1-0 victory against PSV got Atletico off to a winning start in their opening Champions League clash, and either side of that they have won three of their last four La Liga games to send them up to third place in the table, just two points behind leaders Real. Diego Simeone’s men have looked particularly dangerous in front of goal, resulting in them scoring 11 times in just four games.
- In recent years, only Barcelona and Real Madrid have matched the success of these two sides in the Champions League, who come together in what many are billing as one of this season’s most exciting group stage clashes. Both teams certainly are in excellent form at the moment and head into the game full of confidence thanks to strong starts to their respective domestic seasons.
- Good evening and welcome to our live text commentary of today’s Champions League group stage game between Atletico Madrid and Bayern Munich at the Estadio Vicente Calderon.
Wednesday, September 28, 2016
AFFIDAVITS CASES
(a) Civil Case No. 8/96 – Inspector Sadiki and others vs Gerald Nkya. CAT at Dar.
“The proper way to contradict the contents of the counter- affidavit of the respondent
was not by making statements from the bar but was by filing a reply to the counter –
affidavit”. See also Civil Application No. 95/03.
(b) Misc. Civil Application No. 15/97 – OTTU vs AG and others. HC at Dar.(Katiti, J).
“ The expression, “affidavit” , unfortunately despite its being a lawyers everyday tool, is not defined by any statute, I could lay my hands on. But the lexicon meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath , or affirmation before an authorized Magistrate or Officer.”
(c) Civil Appeal No. 38/97 – Faizen Enterprises Ltd vs Africarries Ltd. CATat Dar. -Ex- parte proof cannot be made by an affidavit. It has to be oral.
(d) Civil Application No. 8/99 – SGS Societe General de Survillace SA vs TRA. HC at Dar. - See five principles of affidavits - Quotes several cases on this subject
(e) Civil Application No. 39/99 – Dar Education and Office Stationery vs NBC Holding Corporation and others. CAT at Dar. - Objection that the affidavit contains arguments instead of facts and also contain prayers (Quotes Uganda vs Commissioner of Prisons Ex- parte Matovu [1966] EA 516
“ If that is the case, could it in the name of justice, be said that advancing arguments in an affidavit is so offensive as to cause an application to be struck out and thereby deny this final Court of justice an opportunity to determine the matter on merits? Forms and procedures are handmaids of justice and should not be used to defeat justice( per Biron J in General Marketing Co Ltd vs A.A Sharrif[1980]TLR 61 at 65. -I hold the same view with respect to prayers contained in the affidavit. Prayers have to made in court at the hearing otherwise there is no point of making the application. So making them prematurely in an affidavit should not be a reason for avoiding determination of the application. -Sworn and affirmed – does not make difference
(f) Tanzania Breweries Ltd vs Robert Chacha (Number not seen), (No. 10/99?) HC at Dar (Katiti, J). - Jurat attestation undated contrary to section 8 of the Notaries Public and Commissioners for Oaths, Cap. 12. See also Civil Case No. 208/00. - Drawer never endorsed his name on the document he drew – contrary to section 44 of the Advocates Ordinance, Cap. 341. - Such document is not an affidavit at all, not even approximately in law.
(g) Land Case No. 7/2004 – Teekay Ltd vs NHC. HC (Land Division) at Dar (Longway,J). -Affidavit – the jurat does not state the person who identified the deponent to the Commissioner for Oaths and whether the Commissioner for Oaths had personal knowledge of the identifier. I see however that the flow is not fatal and I agree with the respondent’s counsel that the same is rectifiable. Accordingly I agree that the objection is valid and that the application is struck out with leave to file it within 14 days.
(g) Civil Application No. 76/99 – The University of Dar vs Mwenge Gas and Luboil Ltd, CAT at Dar. - Followed Salima Vuai Foum vs Registrar of Cooperative Societies and others (1995) TLR 75.
(h) Civil Application No.40/98 – Mustapha Raphael vs East African Gold Mines Ltd, CAT at Dar. “ An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matter such as hearsay, legal arguments, objections, prayers and conclusions. See the case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.
(h) Civil Case No. 208/00 – Zanzibar Hotel Ltd vs Costa Bujara. HC at Dar. Jurat must show/state what place and on what date the oath or affidavit is taken – S. 8 Cap. 12- Notaries Public and Commissioner for Oaths Ordinance. See also Tanzania Breweries Case, No (f) above.
Rubber Stamp cannot salvage this situation Affidavit should not contain prayers - see Order XIX Rule 3(I) of the CPC, 1966.
(g) Land Case No. 7/2004 – Teekay Ltd vs NHC. HC (Land Division) at Dar (Longway,J). -Affidavit – the jurat does not state the person who identified the deponent to the Commissioner for Oaths and whether the Commissioner for Oaths had personal knowledge of the identifier. I see however that the flow is not fatal and I agree with the respondent’s counsel that the same is rectifiable. Accordingly I agree that the objection is valid and that the application is struck out with leave to file it within 14 days.
(g) Civil Application No. 76/99 – The University of Dar vs Mwenge Gas and Luboil Ltd, CAT at Dar. - Followed Salima Vuai Foum vs Registrar of Cooperative Societies and others (1995) TLR 75.
(h) Civil Application No.40/98 – Mustapha Raphael vs East African Gold Mines Ltd, CAT at Dar. “ An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matter such as hearsay, legal arguments, objections, prayers and conclusions. See the case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.
(h) Civil Case No. 208/00 – Zanzibar Hotel Ltd vs Costa Bujara. HC at Dar. Jurat must show/state what place and on what date the oath or affidavit is taken – S. 8 Cap. 12- Notaries Public and Commissioner for Oaths Ordinance. See also Tanzania Breweries Case, No (f) above.
Rubber Stamp cannot salvage this situation Affidavit should not contain prayers - see Order XIX Rule 3(I) of the CPC, 1966.
j) Civil Application No. 31/00 – Benedict Kimwaga vs Principal Secretary, Ministry of Health. CA at Dar. “ If an affidavit mentions another person, then that other person has to swear an affidavit. However, I would add that that is so where the information of that other person is material evidence because without the other affidavit it would be hearsay. Where the information is unnecessary, as is the case here, or where it can be expunged, then there is no need to have the other affidavit or affidavits.” See also Civil Application No. 13/02.
(k) Civil Application No. 8/01 – DDL E. International ltd vs THA and others. CATat Dar.
“ The applicant’s affidavit is defective because of the errors in the verification clause. The question is whether such defect was fatal thereby warranting the dismissal of the application or whether the court has discretion to grant leave sought to amend the affidavit and thus cure the defect. (After quoting Salima Vuai’, The University of Dar vs Mwenge Luboil Ltd ) ……If the court has such discretion in relation to an affidavit which is in law incompetent for lacking a verification clause, a fortiori it has discretion in relation to an affidavit which, as in the present case, contains a verification clause but is defective merely because of errors in the said verification clause.”
(l) Civil application No. 21/01 – Ignazio Messina vs Willow Investments SPRL. CAT at Dar.
-An affidavit which is tainted with untruth is no 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 abuse of the court process. The only assistance the Court can give in such a situation is to strike out the affidavit.”
(m) Civil Application No. 141/01 – D.T.Dobie (T) Ltd vs Phatom Modern Transport (1985) Ltd. CAT at Dar. “ As stated in Matovu’s case, an affidavit should state facts, and facts in my view, do not include controverted evidence in a suit.” The Court has power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case.”
(n) Civil Application No.13/02 – NBC Ltd vs Superdoll Trailer Manufacturing Co. Ltd. CAT at Dar. -Affidavit which mentions another person is hearsay unless that other person swears as well. See also Civil Application No.31/00. - One Mr. Mkongwa, advocate, asserted that he commenced and prosecuted this suit on the instructions of Dr. Nkini who in turn had been authorized or instructed by NBC (1997) Ltd to commenced the proceedings……Dr. Nkini however, did not file an affidavit in reply to confirm the averment by Mr. Mkongwa. Therefore, Mr. Mkongwa’s averment was clearly hearsay, and it could not be relied on as proof of the assertion that the proceedings and this judgment was given, with the knowledge of the applicant Bank”.
(o) Civil Application No.95/03 – Tanzania Breweries Ltd vs Edson Dhobe and 18 others. CAT at Dar. “ The proper way to contradict the contents of the counter- affidavit ….was by filing a reply to the counter- affidavit”. See also Civil Application No. 8/96.
(p) Misc.Civil Case No.14/04 – Ultimate security Ltd vs The Minister for Labour. HC
at Dar (Mihayo, J). - Ex- parte Matovu’s case is binding upon our courts - “Courts in this country have not departed from the respect they have on East African Court of Appeal decisions. These decisions are binding on our courts unless our Court of Appeal of Tanzania has categorically departed from such a o the East African Court of Appeal and declared it bad law.”
(q)Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd[1972]HCD 228 HCat Dar. “A court will not act upon an affidavit which does not distinguish between matters stated on information and belief and matters deposed to from the deponent’s own knowledge or as regards the former which does not set out the deponent’s means of knowledge of his grounds or belief.”
(r) Standard Goods Corp. Ltd vs Harackchand Nathar& Co.(1950)EACA 99 “ It is well settled that where an affidavit is made on information, it should not be acted upon by the court unless the sources of information are specified”.
(s) Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA514 at 520 “….The Affidavit sworn to by the counsel is also defective. It is clearly bad in law. Again as a rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain elements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Such an affidavit must not contain an extraneous matter by way of objection or prayer or legal arguments or conclusion. The Affidavit………... should have been struck out.”
(t) Salima Vuai Foum vs Registrar of Cooperative Societies and Three Others [1995]
TLR 75 CAT. - Where an affidavit is made on information, it should not be acted upon by any court unless the sources of information are specified. - As nowhere in the affidavit, either as a whole or in any particular paragraph, is stated that the facts deposed or any of them, and if which ones, are true to the deponents own 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 Chief Justice.
(u) Civil Application No. 50 /03 – Sinani Umba vs. National Insurance Corporation
and Another CAT at Dar.( Nsekela, JA). It is now settled law that whenever the High court refuses an application for leave to appeal to this Court, the decision of the High Court refusing leave must be attached to an application under Rule 46 (3) (see: Edward Marealle Vs. Marealle Clan and Akilei Marealle (1992) TLR 275; Civil Application No. 8 of 2001 DDL Invest international Ltd. V. Tanzania Harbours Authority and Two others (unreported). I do read anything in Rule 46 (3) which demands a notice of appeal and a letter applying for copies of proceedings, judgment, decree and other records to be attached to an application for leave to appeal to this Court. What is required is a copy of the decision against which it is desired to appeal and nothing else. In the court occasion to see. I am therefore satisfied that the application was accompanied by the Ruling of the High Court refusing leave to appeal. This objection, therefore fails. As regards paragraph 6 of the affidavit in support, it is the contention of Mr. Nsemwa that the source of information on the contents of paragraph 4 has not been sufficiently disclosed. It will be recalled paragraph 6 reads in part as under –
“ and the contents of paragraph 4 deposed on advice from my advocates which said advice I verily believe to be true. There is considerable merit in this complaint. It is true that the affidavit in question was drawn and filed by Kashumbugu, Sekirasa & Co. Advocates. And in his oral submissions Mr. Kashumbugu elaborated that the information was from his firm of advocates.
The question is was this sufficient disclosure of the source of the deponents’ information? I do not think so. A blanket reference to “my advocates” is, in my considered view, insufficient disclosure. The deponent should have specifically mentioned the name of the advocate who was the source of the information / advice in paragraph 4. It is trite law that an affidavit must depose to facts either within the deponent’s personal knowledge or obtained an information the source of which are set out therein. There is no paragraph in the who affidavit, which discloses the source of information in paragraph 6 - the verification clause. Having said that, what are the consequences? Without paragraph 4, the remaining paragraphs cannot stand on their own, should the applicant be allowed to amend the affidavit? There is no hindrance in principle to such a course of action being taken (See: Civil Application No 8. of 2001 DDL Invest International Limited and Tanzania Harbours Authority and Two others (unreported). The snag herein however is that Mr. Kashumbugu was insistent that the verification clause was not defective and consequently did not advance any circumstance to move the Court to exercise its judicial discretion. In the result, I am constrained to uphold the preliminary objection and strike out the application with costs.
(v) Civil Application No. 56 /04 – Unyangala Enterprises Ltd 75 Others Vs Stanbic Bank (T) Ltd CAT at Dar (Ramadhani, JA). Mr. Lugano JU. Mwandambo, learned adovate for the respondent, filed a counter affidavit. He had two main attacks: One, Mr Mwandambo pointed out that the affidavit in support of the application was largely hearsay. The learned advocate elaborated that three people have been named in the affidavit but they have not filed any affidavit and that this is contrary to Kighoma Ali Malima vs. Abas Yusuf Mwingamo, Civil Application No. 5 of 1987 (unreported) and John Chuwa Vs. Anthony Ciza [1992] T.L.R.233. The second matter is that the South Law Chambers has other advocates besides Mr. Kasikila and Mr. Mwandambo wondered why those others could not attend. Mr Kasikila gave some explanation as to the effect that the absence of the advocates in their chambers but that should not detain me here. As for the affidavits of the three people, Mr. Kasikila admitted that he was not aware of those decisions. It is a matter of great pity that Mr. Kasikila did not know of the requirement of filing affidavits of all persons whose evidence is material to the matter in dispute. His affidavit contains a lot of hearsay evidence and, so it cannot be relied upon. But even if I were to accept as Gospel trust what Mr. Kasikila said about the unavailability of other partners in their Chambers , one wonders why their clerk did not come to give the explanation to the Court instead of relying on the applicant himself. For the above reasons I find that the application is devoid of any merit and I dismiss it with costs.
(w) Civil Revision No. 90/03 – Omari Ally Omary vs. Idd Mohamed and others. HC
at Dar (Massati J)- From the authorities contained in the decision of the court of appeal in Lalago Cotton Ginnery and Oil mills Company Limited Vs. LART (Civil Application No. 8 of 2003) Phantom Modern Transport (1985) LTD. V.D.T. Dobie (TANZANIA) LTD. Civil Reference No. 15 2001 and 3 of 2002, and MANORLAL AGGARWAL Vs. TANGANYIKA LAND AGENCY LTD. & OTHERS Civil Reference No. 11 of 1999 the position of the law can safely be summarized as follows:
As a general rule a defective affidavit should not be acted upon by a court of law, but in appropriate cases, where the defects are minor, the courts can order an amendment by way of filing fresh affidavit or by striking out the affidavit. But if the defects are of a substantial or substantive nature, no amendement should be allowed as they are a nullity, and there can be no amendment to a nothing.
I have no doubt in my mind that those paragraphs contain legal arguments, conclusions and prayers. Mrs. Muruke learned Counsel has submitted that those paragraphs were curable. It was held in the MATOVU case and approved by the Tanzania Court of Appeal in LALAGO COTTON GINNERY AND OIL MILLS COMPANY LTD. Case and PHANTOM MODERN TRANSPORT (1985) LTD. Case, both cited by learned counsel that affidavits containing extraous matters by way of objections or prayers or legal arguments or conclusions were incurably defective. On the premises I find and hold that the counter affidavit filed by the Respondents are incurably devective and are accordingly struck out. Like what the court of appeal of Tanzania did in the LALAGO case I will give time to the Respondents to file proper counter affidavits before I proceed to consider the application for revision on merit. However, the Application shall have his costs on the preliminary objection. The respondents are to file proper counter affidavits within two weeks from the date of this ruling.
(x) Commercial Case No. 297 /2002 - M/S Rubya Saw Mill Timber Vs. M/s Consolidated Holding Corporation – HC at Dar. (Kimaro, J).
The jurat and contents of the affidavit filed in support of the Chamber Application is being challenged. The challenge has been brought by way of a preliminary objection by Mr. Mwandamo, Learned Advocate for the respondent in this case. The Chamber Application is asking for orders for setting aside a dismissal order, made by this court on 9th July, 2003. It has been filed under Order IX rule 9 (1) and (2) as well of section 95 of the Civil Procedure Code, 1966. Mr. Maira is the Learned Advocate who filed the application for the applicant.
- The plaintiff’s suit was dismissed because of lack of prosecution. On the date it was called for trial, no witness turned up. The trial of the case was fixed two months earlier and Mr. Maira is on record that he would have brought three witnesses. On the date of the trial Mr. Maira was present without presence of any of the three witnesses. The suit was then dismissed. The affidavit was sworn by Mr. Ladislaus Kulwa Msilanga who says he is the Chief Executive Officer of the applicant. The preliminary objection raised by Mr. Mwambambo is that the application is incompetent as it is supported by an affidavit which is incurably defective.
- I said earlier the challenge is focused on the jurat of attestation and the content of the affidavit of Ladislaus.
- What is wrong with the jurat of the attestation? Mr. Mwandambo said it contravenes Section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12. Mr. Mwandambo’s observation is that it does not meet the requirement as presented in the above quoted provision.
Whereas the attestation clause displays 11th June, 2003 as the date when the affidavit was sworn at Mwanza, the facts deposed in the affidavit relate to a court order issued on 9th July, 2003 Mr. Mwandamo said the above discrepancy is clear evidence that the affidavit does not truly state the date on which it was made, hence offending the mandatory requirements of the law. The concluding remarks are that the affidavit as it is, is not an affidavit at all in law, and cannot be used in any manner whatsoever in these proceedings.
- Mr. Maira’s simple reply is that the affidavit was made on 11th July, 2003 but it was inadvertently typed 11th June 2003. Mr Maira’s opinion is that this is a mistake which is curable.
- The attestation clause whose jurat is being challenged reads as follows:-
“ Solemnly sworn by the said Ladislaus Kulwa Msilanga at Mwanza this 11th day of June, 2003. Before me Signature Commissioner for Oaths.”
- Besides the signature for Commissioner for Oaths, there is a stamp of W.K.Butambala, Advocates before whom the affidavit was sworn.
- It is also important for me to explain what is a jurat. The definition given by The Backs Law Dictionary and reproduced in the case of Wananchi Marine Products (T) Ltd Vs Owners of Motor Vessels High Court Civil Case No. 123/96 DSM Registry) (Unreported), (the decision of Kalegeya, J) is as follows:
“ Certificate of Officer or person before whom writing was sworn to. In common use term is employed to designate certificate of competent administering officer that the writing was sworn to by a person who signed it. The clause written at the foot of an affidavit stating when, where, and before whom such affidavit was sworn”.
Let us look at the contents of section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12:
“ Every Notary Public and Commissioner for Oaths before whom any Oath or affidavit is taken or made under this Ordinance shall state truly in the jurat of attestion at which place and on what date the oath or affidavit is taken or made”
The provisions of Section 8 of Cap 12 have been verified; The attestation clause has also been displayed. The arguments of the Counsel have also been exposed. Now what is the position of this court? Mr. Mwandambo’s argument is correct. The jurat of attestation in Mr. Ladiuslaus Kulwa Msilanga’s affidavit is defective. The date given in the attestation clause does not rhyme with the date of the order which is sought to be set aside. I am not impressed by Mr. Maira’s explanation that the date in the attestation clause was inadvertently typed. There is no evidence at all to support the explanation given by Mr. Maira. Mr. W.K. Butambala was the only person who could have told this court when the affidavit was sworn before him. There is nothing from him. Under the circumstances, giving such an explanation after the mistake has been pointed out by someone else does not assit Mr. Maira. The records remain as presented in court. The provisions of Section 8 of Cap. 12 requires the affidavit to state truly in the jurat of attestation the place and the date when the affidavit was sworn. The date displayed in the affidavit as the date when the affidavit was sworn, can not be true because in the body of the affidavit there is reference to matters which took after the date of the swearing of the affidavit . This is a contravention of Section 8 of Cap12. It is a defect which is incurable.
In the case of D.P. Shapriya & Co. Ltd Vs. Bish International - Civil Application No. 53 of 2002 (CAT) (DSM) (unreported). Hon. Justice Ramadhani J.A said:-
“ The section categorically provides that the place at which an oath is taken has to be shown in the jurat. The requirement is mandatory; Notary Public and Commissioners for Oaths shall state truly in the jurat of attestation at what place and on what date the oath or affirmation is taken or made”
- The second issue raised by Mr. Mwandambo is on the contents of the affidavit. The contention by Mr Mwandambo is that paragraph 6 of the affidavit contains prayers and this is contrary to the requirements of Order XIX Rule 3 of the Civil Procedure Code, 1966. The response from Mr. Maira is that what is contained in the affidavit is only a direction to the court to take into consideration the prayers requested for in the Chamber Application.
“ That I have worked tirelessly in prosecuting my case and that I have not in anyway negligent or indolent. Thus in interest of justice I pray that the court may be pleased to raise the dismissal order and allow the action to proceed to finalization on merit”.
- With greatest respect to Mr. Maira, I do not agree with his explanation on the contents of paragraph 6 of the affidavit.
Order XIX R3 (1) of the Civil Procedure Code 1966 reads and I quote:
“Affidavit shall be confined to such facts the deponent is able of his own knowledge to prove, except in interlocutory application, on which statements of his belief may be admitted”.
-I join Mr. Mwandambo’s submission that para 6 of the affidavit includes a prayer which is not a face which the deponent can prove or explain about his belief on the matter. It is true that inclusion of a prayer in an affidavit has been held to be improper and renders the affidavit defective. Ther are a lot of supporting authorities on the matter. Among then is the famours Case of Uganda Vs Commissioner of Prisons Ex – parte Matovu [1966] EA 514 which has been followed by the Court of Appeal in several cases. One of such cases being Phantom Modern Transport (1985) Limited Vs. D.T. Dobie & Company (T) Ltd Civil Reference No. 15 of 2001 and 3 of 2002 (unreported).
Given the defects noted in the affidavit, the affidavit offends the Law. Consequently, it cannot be acted upon by this court. It is struck out.
- The application before this court is by way of Chamber summons. Order XLII Rule 2 of the Civil Procedure Code 1966 requires any Chamber Summons to be supported by an affidavit. Since the affidavit was struck out it means that the Chamber Summons is not supported by any affidavit as required by the law. It is struck out with costs.
(y) Civil Revision No. 7/05 - Loans and Advances Realization Trust vs Patrick K. Mungaya & 46 Others. HC.
. He called on this court to hold that the said signature was a forged one and if it is held so, then it amounts to fraud and therefore, fraud vitiates everything. He sought authority of this court, Mihayo J. in Tanzania Breweries Ltd. vs Alloyee Muyai Civil Revision No. 9/04 (unreported - Dar es Salaam Registry) where his lordship said in his ruling that “comparing of signatures is a duty of the court”. He held it as settled law. The learned counsel further called upon this court to compare the signature appearing in the counter affidavit to those in the documents filed in Employment Cause No. 20/02 by Patrick Mungaya.
- The learned counsel ended his submissions by saying that in view of the defferences in the signatures, which lead to forgery, whose consequence is to vitiate everything, then all the proceedings in the lower court be declared a nullity so that the decree and the garnishee order for the tune of shs. 208,723,360/= be declared illegal, nullity and void.
(k) Civil Application No. 8/01 – DDL E. International ltd vs THA and others. CATat Dar.
“ The applicant’s affidavit is defective because of the errors in the verification clause. The question is whether such defect was fatal thereby warranting the dismissal of the application or whether the court has discretion to grant leave sought to amend the affidavit and thus cure the defect. (After quoting Salima Vuai’, The University of Dar vs Mwenge Luboil Ltd ) ……If the court has such discretion in relation to an affidavit which is in law incompetent for lacking a verification clause, a fortiori it has discretion in relation to an affidavit which, as in the present case, contains a verification clause but is defective merely because of errors in the said verification clause.”
(l) Civil application No. 21/01 – Ignazio Messina vs Willow Investments SPRL. CAT at Dar.
-An affidavit which is tainted with untruth is no 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 abuse of the court process. The only assistance the Court can give in such a situation is to strike out the affidavit.”
(m) Civil Application No. 141/01 – D.T.Dobie (T) Ltd vs Phatom Modern Transport (1985) Ltd. CAT at Dar. “ As stated in Matovu’s case, an affidavit should state facts, and facts in my view, do not include controverted evidence in a suit.” The Court has power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case.”
(n) Civil Application No.13/02 – NBC Ltd vs Superdoll Trailer Manufacturing Co. Ltd. CAT at Dar. -Affidavit which mentions another person is hearsay unless that other person swears as well. See also Civil Application No.31/00. - One Mr. Mkongwa, advocate, asserted that he commenced and prosecuted this suit on the instructions of Dr. Nkini who in turn had been authorized or instructed by NBC (1997) Ltd to commenced the proceedings……Dr. Nkini however, did not file an affidavit in reply to confirm the averment by Mr. Mkongwa. Therefore, Mr. Mkongwa’s averment was clearly hearsay, and it could not be relied on as proof of the assertion that the proceedings and this judgment was given, with the knowledge of the applicant Bank”.
(o) Civil Application No.95/03 – Tanzania Breweries Ltd vs Edson Dhobe and 18 others. CAT at Dar. “ The proper way to contradict the contents of the counter- affidavit ….was by filing a reply to the counter- affidavit”. See also Civil Application No. 8/96.
(p) Misc.Civil Case No.14/04 – Ultimate security Ltd vs The Minister for Labour. HC
at Dar (Mihayo, J). - Ex- parte Matovu’s case is binding upon our courts - “Courts in this country have not departed from the respect they have on East African Court of Appeal decisions. These decisions are binding on our courts unless our Court of Appeal of Tanzania has categorically departed from such a o the East African Court of Appeal and declared it bad law.”
(q)Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd[1972]HCD 228 HCat Dar. “A court will not act upon an affidavit which does not distinguish between matters stated on information and belief and matters deposed to from the deponent’s own knowledge or as regards the former which does not set out the deponent’s means of knowledge of his grounds or belief.”
(r) Standard Goods Corp. Ltd vs Harackchand Nathar& Co.(1950)EACA 99 “ It is well settled that where an affidavit is made on information, it should not be acted upon by the court unless the sources of information are specified”.
(s) Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA514 at 520 “….The Affidavit sworn to by the counsel is also defective. It is clearly bad in law. Again as a rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain elements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Such an affidavit must not contain an extraneous matter by way of objection or prayer or legal arguments or conclusion. The Affidavit………... should have been struck out.”
(t) Salima Vuai Foum vs Registrar of Cooperative Societies and Three Others [1995]
TLR 75 CAT. - Where an affidavit is made on information, it should not be acted upon by any court unless the sources of information are specified. - As nowhere in the affidavit, either as a whole or in any particular paragraph, is stated that the facts deposed or any of them, and if which ones, are true to the deponents own 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 Chief Justice.
(u) Civil Application No. 50 /03 – Sinani Umba vs. National Insurance Corporation
and Another CAT at Dar.( Nsekela, JA). It is now settled law that whenever the High court refuses an application for leave to appeal to this Court, the decision of the High Court refusing leave must be attached to an application under Rule 46 (3) (see: Edward Marealle Vs. Marealle Clan and Akilei Marealle (1992) TLR 275; Civil Application No. 8 of 2001 DDL Invest international Ltd. V. Tanzania Harbours Authority and Two others (unreported). I do read anything in Rule 46 (3) which demands a notice of appeal and a letter applying for copies of proceedings, judgment, decree and other records to be attached to an application for leave to appeal to this Court. What is required is a copy of the decision against which it is desired to appeal and nothing else. In the court occasion to see. I am therefore satisfied that the application was accompanied by the Ruling of the High Court refusing leave to appeal. This objection, therefore fails. As regards paragraph 6 of the affidavit in support, it is the contention of Mr. Nsemwa that the source of information on the contents of paragraph 4 has not been sufficiently disclosed. It will be recalled paragraph 6 reads in part as under –
“ and the contents of paragraph 4 deposed on advice from my advocates which said advice I verily believe to be true. There is considerable merit in this complaint. It is true that the affidavit in question was drawn and filed by Kashumbugu, Sekirasa & Co. Advocates. And in his oral submissions Mr. Kashumbugu elaborated that the information was from his firm of advocates.
The question is was this sufficient disclosure of the source of the deponents’ information? I do not think so. A blanket reference to “my advocates” is, in my considered view, insufficient disclosure. The deponent should have specifically mentioned the name of the advocate who was the source of the information / advice in paragraph 4. It is trite law that an affidavit must depose to facts either within the deponent’s personal knowledge or obtained an information the source of which are set out therein. There is no paragraph in the who affidavit, which discloses the source of information in paragraph 6 - the verification clause. Having said that, what are the consequences? Without paragraph 4, the remaining paragraphs cannot stand on their own, should the applicant be allowed to amend the affidavit? There is no hindrance in principle to such a course of action being taken (See: Civil Application No 8. of 2001 DDL Invest International Limited and Tanzania Harbours Authority and Two others (unreported). The snag herein however is that Mr. Kashumbugu was insistent that the verification clause was not defective and consequently did not advance any circumstance to move the Court to exercise its judicial discretion. In the result, I am constrained to uphold the preliminary objection and strike out the application with costs.
(v) Civil Application No. 56 /04 – Unyangala Enterprises Ltd 75 Others Vs Stanbic Bank (T) Ltd CAT at Dar (Ramadhani, JA). Mr. Lugano JU. Mwandambo, learned adovate for the respondent, filed a counter affidavit. He had two main attacks: One, Mr Mwandambo pointed out that the affidavit in support of the application was largely hearsay. The learned advocate elaborated that three people have been named in the affidavit but they have not filed any affidavit and that this is contrary to Kighoma Ali Malima vs. Abas Yusuf Mwingamo, Civil Application No. 5 of 1987 (unreported) and John Chuwa Vs. Anthony Ciza [1992] T.L.R.233. The second matter is that the South Law Chambers has other advocates besides Mr. Kasikila and Mr. Mwandambo wondered why those others could not attend. Mr Kasikila gave some explanation as to the effect that the absence of the advocates in their chambers but that should not detain me here. As for the affidavits of the three people, Mr. Kasikila admitted that he was not aware of those decisions. It is a matter of great pity that Mr. Kasikila did not know of the requirement of filing affidavits of all persons whose evidence is material to the matter in dispute. His affidavit contains a lot of hearsay evidence and, so it cannot be relied upon. But even if I were to accept as Gospel trust what Mr. Kasikila said about the unavailability of other partners in their Chambers , one wonders why their clerk did not come to give the explanation to the Court instead of relying on the applicant himself. For the above reasons I find that the application is devoid of any merit and I dismiss it with costs.
(w) Civil Revision No. 90/03 – Omari Ally Omary vs. Idd Mohamed and others. HC
at Dar (Massati J)- From the authorities contained in the decision of the court of appeal in Lalago Cotton Ginnery and Oil mills Company Limited Vs. LART (Civil Application No. 8 of 2003) Phantom Modern Transport (1985) LTD. V.D.T. Dobie (TANZANIA) LTD. Civil Reference No. 15 2001 and 3 of 2002, and MANORLAL AGGARWAL Vs. TANGANYIKA LAND AGENCY LTD. & OTHERS Civil Reference No. 11 of 1999 the position of the law can safely be summarized as follows:
As a general rule a defective affidavit should not be acted upon by a court of law, but in appropriate cases, where the defects are minor, the courts can order an amendment by way of filing fresh affidavit or by striking out the affidavit. But if the defects are of a substantial or substantive nature, no amendement should be allowed as they are a nullity, and there can be no amendment to a nothing.
I have no doubt in my mind that those paragraphs contain legal arguments, conclusions and prayers. Mrs. Muruke learned Counsel has submitted that those paragraphs were curable. It was held in the MATOVU case and approved by the Tanzania Court of Appeal in LALAGO COTTON GINNERY AND OIL MILLS COMPANY LTD. Case and PHANTOM MODERN TRANSPORT (1985) LTD. Case, both cited by learned counsel that affidavits containing extraous matters by way of objections or prayers or legal arguments or conclusions were incurably defective. On the premises I find and hold that the counter affidavit filed by the Respondents are incurably devective and are accordingly struck out. Like what the court of appeal of Tanzania did in the LALAGO case I will give time to the Respondents to file proper counter affidavits before I proceed to consider the application for revision on merit. However, the Application shall have his costs on the preliminary objection. The respondents are to file proper counter affidavits within two weeks from the date of this ruling.
(x) Commercial Case No. 297 /2002 - M/S Rubya Saw Mill Timber Vs. M/s Consolidated Holding Corporation – HC at Dar. (Kimaro, J).
The jurat and contents of the affidavit filed in support of the Chamber Application is being challenged. The challenge has been brought by way of a preliminary objection by Mr. Mwandamo, Learned Advocate for the respondent in this case. The Chamber Application is asking for orders for setting aside a dismissal order, made by this court on 9th July, 2003. It has been filed under Order IX rule 9 (1) and (2) as well of section 95 of the Civil Procedure Code, 1966. Mr. Maira is the Learned Advocate who filed the application for the applicant.
- The plaintiff’s suit was dismissed because of lack of prosecution. On the date it was called for trial, no witness turned up. The trial of the case was fixed two months earlier and Mr. Maira is on record that he would have brought three witnesses. On the date of the trial Mr. Maira was present without presence of any of the three witnesses. The suit was then dismissed. The affidavit was sworn by Mr. Ladislaus Kulwa Msilanga who says he is the Chief Executive Officer of the applicant. The preliminary objection raised by Mr. Mwambambo is that the application is incompetent as it is supported by an affidavit which is incurably defective.
- I said earlier the challenge is focused on the jurat of attestation and the content of the affidavit of Ladislaus.
- What is wrong with the jurat of the attestation? Mr. Mwandambo said it contravenes Section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12. Mr. Mwandambo’s observation is that it does not meet the requirement as presented in the above quoted provision.
Whereas the attestation clause displays 11th June, 2003 as the date when the affidavit was sworn at Mwanza, the facts deposed in the affidavit relate to a court order issued on 9th July, 2003 Mr. Mwandamo said the above discrepancy is clear evidence that the affidavit does not truly state the date on which it was made, hence offending the mandatory requirements of the law. The concluding remarks are that the affidavit as it is, is not an affidavit at all in law, and cannot be used in any manner whatsoever in these proceedings.
- Mr. Maira’s simple reply is that the affidavit was made on 11th July, 2003 but it was inadvertently typed 11th June 2003. Mr Maira’s opinion is that this is a mistake which is curable.
- The attestation clause whose jurat is being challenged reads as follows:-
“ Solemnly sworn by the said Ladislaus Kulwa Msilanga at Mwanza this 11th day of June, 2003. Before me Signature Commissioner for Oaths.”
- Besides the signature for Commissioner for Oaths, there is a stamp of W.K.Butambala, Advocates before whom the affidavit was sworn.
- It is also important for me to explain what is a jurat. The definition given by The Backs Law Dictionary and reproduced in the case of Wananchi Marine Products (T) Ltd Vs Owners of Motor Vessels High Court Civil Case No. 123/96 DSM Registry) (Unreported), (the decision of Kalegeya, J) is as follows:
“ Certificate of Officer or person before whom writing was sworn to. In common use term is employed to designate certificate of competent administering officer that the writing was sworn to by a person who signed it. The clause written at the foot of an affidavit stating when, where, and before whom such affidavit was sworn”.
Let us look at the contents of section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12:
“ Every Notary Public and Commissioner for Oaths before whom any Oath or affidavit is taken or made under this Ordinance shall state truly in the jurat of attestion at which place and on what date the oath or affidavit is taken or made”
The provisions of Section 8 of Cap 12 have been verified; The attestation clause has also been displayed. The arguments of the Counsel have also been exposed. Now what is the position of this court? Mr. Mwandambo’s argument is correct. The jurat of attestation in Mr. Ladiuslaus Kulwa Msilanga’s affidavit is defective. The date given in the attestation clause does not rhyme with the date of the order which is sought to be set aside. I am not impressed by Mr. Maira’s explanation that the date in the attestation clause was inadvertently typed. There is no evidence at all to support the explanation given by Mr. Maira. Mr. W.K. Butambala was the only person who could have told this court when the affidavit was sworn before him. There is nothing from him. Under the circumstances, giving such an explanation after the mistake has been pointed out by someone else does not assit Mr. Maira. The records remain as presented in court. The provisions of Section 8 of Cap. 12 requires the affidavit to state truly in the jurat of attestation the place and the date when the affidavit was sworn. The date displayed in the affidavit as the date when the affidavit was sworn, can not be true because in the body of the affidavit there is reference to matters which took after the date of the swearing of the affidavit . This is a contravention of Section 8 of Cap12. It is a defect which is incurable.
In the case of D.P. Shapriya & Co. Ltd Vs. Bish International - Civil Application No. 53 of 2002 (CAT) (DSM) (unreported). Hon. Justice Ramadhani J.A said:-
“ The section categorically provides that the place at which an oath is taken has to be shown in the jurat. The requirement is mandatory; Notary Public and Commissioners for Oaths shall state truly in the jurat of attestation at what place and on what date the oath or affirmation is taken or made”
- The second issue raised by Mr. Mwandambo is on the contents of the affidavit. The contention by Mr Mwandambo is that paragraph 6 of the affidavit contains prayers and this is contrary to the requirements of Order XIX Rule 3 of the Civil Procedure Code, 1966. The response from Mr. Maira is that what is contained in the affidavit is only a direction to the court to take into consideration the prayers requested for in the Chamber Application.
“ That I have worked tirelessly in prosecuting my case and that I have not in anyway negligent or indolent. Thus in interest of justice I pray that the court may be pleased to raise the dismissal order and allow the action to proceed to finalization on merit”.
- With greatest respect to Mr. Maira, I do not agree with his explanation on the contents of paragraph 6 of the affidavit.
Order XIX R3 (1) of the Civil Procedure Code 1966 reads and I quote:
“Affidavit shall be confined to such facts the deponent is able of his own knowledge to prove, except in interlocutory application, on which statements of his belief may be admitted”.
-I join Mr. Mwandambo’s submission that para 6 of the affidavit includes a prayer which is not a face which the deponent can prove or explain about his belief on the matter. It is true that inclusion of a prayer in an affidavit has been held to be improper and renders the affidavit defective. Ther are a lot of supporting authorities on the matter. Among then is the famours Case of Uganda Vs Commissioner of Prisons Ex – parte Matovu [1966] EA 514 which has been followed by the Court of Appeal in several cases. One of such cases being Phantom Modern Transport (1985) Limited Vs. D.T. Dobie & Company (T) Ltd Civil Reference No. 15 of 2001 and 3 of 2002 (unreported).
Given the defects noted in the affidavit, the affidavit offends the Law. Consequently, it cannot be acted upon by this court. It is struck out.
- The application before this court is by way of Chamber summons. Order XLII Rule 2 of the Civil Procedure Code 1966 requires any Chamber Summons to be supported by an affidavit. Since the affidavit was struck out it means that the Chamber Summons is not supported by any affidavit as required by the law. It is struck out with costs.
(y) Civil Revision No. 7/05 - Loans and Advances Realization Trust vs Patrick K. Mungaya & 46 Others. HC.
. He called on this court to hold that the said signature was a forged one and if it is held so, then it amounts to fraud and therefore, fraud vitiates everything. He sought authority of this court, Mihayo J. in Tanzania Breweries Ltd. vs Alloyee Muyai Civil Revision No. 9/04 (unreported - Dar es Salaam Registry) where his lordship said in his ruling that “comparing of signatures is a duty of the court”. He held it as settled law. The learned counsel further called upon this court to compare the signature appearing in the counter affidavit to those in the documents filed in Employment Cause No. 20/02 by Patrick Mungaya.
- The learned counsel ended his submissions by saying that in view of the defferences in the signatures, which lead to forgery, whose consequence is to vitiate everything, then all the proceedings in the lower court be declared a nullity so that the decree and the garnishee order for the tune of shs. 208,723,360/= be declared illegal, nullity and void.
(z) Civil Case No. 18/01 - Hilmary Protas Mpangalla vs Global Securities Finance & Insurance Corporation Ltd.
- A preliminary objection has been raised by Mr. E.D Kisusi learned Advocate for Global Securities Finance and Insurance Corporation Ltd the first respondent/defendant in Civil Case No. 18 of 2001 to the effect that the affidavit of Hilmary Protas Mpangala is incurably defective. The defect is on the jurat of attestation which did not state truly at what place the affidavit was made contrary to the mandatory provisions of Section 8 of the Notaries Public and Commissioners for Oath Ordinance Cap. 12. Mr. Msafiri learned Advocate for the applicant/ plaintiff has conceded to the defect but argues that it is within the Court’s discretion to allow an amendment and has cited a number of authorities in support.
- In my humble view, adopting the decision of the Court of Appeal of Tanznania in the Case of D.B. Shapriya & Co. Ltd. V. Bish Innternation B.C. Civil Application No. 53 of 2002 (Ramadhani, J.A.) the requirement to state the place at which an oath is taken is a mandatory one. The omission makes an affidavit incurably defective. Accordingly I uhold the objection raised and I will struck out the application for not being supported by a proper affidavit. Costs to be costs in the cause.
(aa) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD HC at Dar (Mackanja, J).
Mr Chandoo, learned counsel for the applicant, contends that the respondent cannot be heard to challenge the affidavit by statements from bar as no counter affidavit was filed. Well, I think both Mr. Mchora and Mr. Chandoo are in error in respect of what they argue. Mr. Mchora repeatedly refers to the affidavit evidence as being pleadings. Those not pleadings; an affidavit contains evidence. So its contents must be countered by evidence in a counter affidavit, by cross – examining the deponent or by the adduction of oral evidence or by taking all the three courses of action simurilaneously. Mr Chandoo, on the other hand, is not correct in contending that Mr. Mchora is not entitled to attach the counter affidavit from the bar. Learned counsel has a right to examine evidence and to comment on its veracity. This is all that Mr. Mchora has done. This he can do although in saying so I do not mean that Mr. Mchora’s submissions in this regard stand in for evidence
- A preliminary objection has been raised by Mr. E.D Kisusi learned Advocate for Global Securities Finance and Insurance Corporation Ltd the first respondent/defendant in Civil Case No. 18 of 2001 to the effect that the affidavit of Hilmary Protas Mpangala is incurably defective. The defect is on the jurat of attestation which did not state truly at what place the affidavit was made contrary to the mandatory provisions of Section 8 of the Notaries Public and Commissioners for Oath Ordinance Cap. 12. Mr. Msafiri learned Advocate for the applicant/ plaintiff has conceded to the defect but argues that it is within the Court’s discretion to allow an amendment and has cited a number of authorities in support.
- In my humble view, adopting the decision of the Court of Appeal of Tanznania in the Case of D.B. Shapriya & Co. Ltd. V. Bish Innternation B.C. Civil Application No. 53 of 2002 (Ramadhani, J.A.) the requirement to state the place at which an oath is taken is a mandatory one. The omission makes an affidavit incurably defective. Accordingly I uhold the objection raised and I will struck out the application for not being supported by a proper affidavit. Costs to be costs in the cause.
(aa) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD HC at Dar (Mackanja, J).
Mr Chandoo, learned counsel for the applicant, contends that the respondent cannot be heard to challenge the affidavit by statements from bar as no counter affidavit was filed. Well, I think both Mr. Mchora and Mr. Chandoo are in error in respect of what they argue. Mr. Mchora repeatedly refers to the affidavit evidence as being pleadings. Those not pleadings; an affidavit contains evidence. So its contents must be countered by evidence in a counter affidavit, by cross – examining the deponent or by the adduction of oral evidence or by taking all the three courses of action simurilaneously. Mr Chandoo, on the other hand, is not correct in contending that Mr. Mchora is not entitled to attach the counter affidavit from the bar. Learned counsel has a right to examine evidence and to comment on its veracity. This is all that Mr. Mchora has done. This he can do although in saying so I do not mean that Mr. Mchora’s submissions in this regard stand in for evidence
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