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.

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.
(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

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