IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

MISC. CIVIL APPLICATION NO. 486 OF 2019

(Originating from High Court Probate and Administration Cause No. 39 o f 2019)

IN THE MATTER OF THE ESTATE OF THE LATE DR. REGINALD

ABRAHAM MENGI, DECEASED

IN THE MATTER OF THE PROBATE AND ADMINISTRATION OF

ESTATES ACT [CAP 352 R.E. 2002]

IN THE MATTER OF THE PROBATE AND ADMINISTRATION OF

ESTATES RULES

IN THE MATTER OF AN APPLICATION FOR EXTENSION OF TIME

WITHIN WHICH TO FILE A CAVEAT

JACQUELINE NTUYABALIWE MENGI-------------------1st APPLICANT

JACQUELINE NTUYABALIWE MENGI

AS NEXT FRIEND OF JAYDEN
KIHOZA MENGI (A MINOR)......................................2nd APPLICANT

JACQUELINE NTUYABALIWE MENGI

AS NEXT FRIEND OF RYAN
SAASHISHA MENGI (A MINOR)---------------------- 3rd APPLICANT

VERSUS

BENSON BENJAMIN MENGI....... 1st RESPONDENT/1st PETITIONER

WILLIAM ONESMO MUSHI...........2nd RESPONDENT/2nd PETITIONER

ZOEB HASSUJI.............................3rd RESPOND ENT/3rd PETITIONER

SYLVIA NOVATUS MUSHI---------- 4™ RESPONDENT/4th PETITIONER

ABDIEL REGINALD MENGI---------- 5™ RESPONDENT/1st CAVEATOR

BENJAMIN ABRAHAM MENGI — - 6th RESPONDENT/2nd CAVEATOR

1
 RULING

Date of last order: 19/02/2010

Date of ruling: 09/03/2020

MLYAMBINA, J.

1. Introduction

The instant application has been taken at the instance of

Mutabuzi & Co Advocates and Legis Attorneys and it is
supported by the affidavits of Jacqueline Ntuyabaliwe Mengi
and Advocate Dosca Mutabuzi. The application is made under
Section 14(1) o f the Law o f Limitation Act1 and Sections 68(e)
and 95 o f the Civil Procedure Code.2 Basically, it is an
Application for orders that this Honourable Court extends time
for the Applicants to file a caveat in respect of Probate and
Administration Cause No. 39 of 2019. In response, the
Caveators filed Counter Affidavits together with four piea in
limine litis, namely:

(a). That the contents of paras 4, 6,7, 7 (a) to 7 (e), 8,

13, 17, 19, 28, 55 (a) to 55 (e), 56 (a) to 56 (k),
57 (a) to 57 (o), 58 (a) to 58 (j), 59 (a) to 59 (f),
68, 71, 73 and 75 are either hearsay,
argumentative, expressing opinion/legal points,

1 [Cap 89 R.E 2002].

2 [Cap 33 R.E. 2002]).

2
 insulting, scandalous, and therefore must be
expunged from the record.

(b). That the application is misconceived and bad at law

for contravening Section 59(1) and (3) of the
Probate and Administration of the Estates Act, Cap
352 R. E. 2002;

(c). The application is misconceived and bad at law for

being overtaken by events as there is no longer a
Petition as this Honourable Court does not have
jurisdiction to entertain another caveat/application
after the suit is set for hearing; and

(d). That the supporting Affidavit is incurably defective

for containing defective verification.

The applicants were represented by Senior learned Counsel

Dosca Mutabuzi and learned Counsel Jonathan Mbuga. The
petitioners were represented by Senior Counsel Elisa Abel
Msuya and Irene Mchau and the caveators were represented
by Senior Counsel Nakazael Lukio Tenga, learned Counsel
Roman Masumbuko, and Khamis Mfinanga.

2. Background

On 2nd day of May, 2019 Dr. Reginald Abraham Mengi passed

away. Following his demise, on 10th day of July 2019, Benson

3
Benjamin Mengi, William Onesmo Mushi, Zoeb Hassuji and
Sylvia Novatus Mushi (hereinafter to be referred as Petitioners)
filed a Probate Cause before this Court seeking to be appointed
as Probate administrators of the estate of the late Dr. Mengi. It
was registered as Probate Cause No. 39 of 2019. On 29th day
of July, 2019 general citation was issued via Daily News Paper3
and Government Gazette dated 2nd day of August, 2019.4

Consequently, on 30th day of July, 2019 Abdiel Reginald Mengi

and Benjamin Abraham Mengi (hereinafter to be referred as
caveators) filed a joint caveat made under Section 58 of Cap
352 {supra) and Rule 82 of the Probate and Administration of
Estates Rules. Rule 82 (2A) of the Probate Rules requires a
party to file caveat within 30 days after the citation and the
petitioner is required to file a reply within 30 days as against
the caveat.

Being time barred, on 13th day of September, 2019 the

Applicant herein Jacqueline Ntuyabaliwe Mengi in her own
capacity and as a Next Friend of Jayden Kihoza Mengi (a minor)
and Ryan Saashisha Mengi (a minor) filed an application for
extension of time within which to file a caveat. The application
was made under Section 14(1) of the Law of Limitation Act,

3 ISSN 0856-3812 No. 12,434.

4 ISSN 0856-0323 GN. No. 31.

4
19715 and Sections 68(e) and 95 of the Civil Procedure Code,
1966.6 The application was against the petitioners and the
caveators. The supporting affidavit of Jacqueline Ntuyabaliwe
Mengi has encountered the afore four enumerated serious legal
objections which forms the centre of this ruling.

3. Submission of the Parties' Counsel on Piea in Limine

Litis

Learned Counsel Roman Masumbuko on behalf of the caveators

argued together the 1st, 2nd and 3rd preliminary objection. He
pegged the 1st preliminary objection on para 4, 6, 7, 7 (a) -7
(b), 8, 13,17, 18, 28, 55 (a) - (e ), 56 (a) - (k) 57 (a) - (o), 58
(a) " (j), 59 (a) - (f) 68, 71, 73 and 75. According to Counsel
Masumbuko, all the listed para are either hearsay,
argumentative expressing opinion or legal points, extremely
insulting and scandalous and therefore must be expunged from
the court records.

Counsel Masumbuko maintained that it is a rule or principle on

the affidavit which have been embodied in various cases that
an affidavit must contain facts only which are within the
knowledge of the deponent. In his view, that principle comes
from Order XIX Rule 3 o f the Civil Procedure Code. As to what

5 Cap 89 R.E2002.
6 Cap 33 R.E 2002.

5
should not be contained in the affidavit, he cited the famous
case of Uganda v. Commissioner ex-parte Matovu7 in which the
Court stated:

Such affidavit should contain extraneous matters by

way o f objection or legal arguments or conclusion.

Counsel went on to cite the case o f Phantom Modern Transport

1985 Ltd v. DT Dobie Tanzania Ltd.8 and the decision of
Leighton offshore TTE LTD Tanzania Branch v. D.B. Shapriya
Co. LtcP at page 6-7.

In all those cases, according to Counsel Masumbuko, they state

what an affidavit should contain because an affidavit is a
substitute of evidence in court. It was stressed by Counsel that
if the facts are not in the knowledge, the source must be
mentioned and that source should be able to give evidence.

On particular paras, Counsel Masumbuko pointed out that

paras 4 and 6 are hearsay as there is no affidavit of that
person, nobody can swear on behalf of the deceased. He re­
cited the Phantom case. He went on to submit that paras 7 and
7 (a) - (e) are hearsay as well. These are matters informed by
Dr. Mengi. Para 13 is also hearsay while paras 19 is expression
of opinion. Para 28 is both expression of opinion and

7 1966 EA 514 at 520.

8 Court of Appeal of Tanzania at Dar es Salaam, Civil Reference No. 15 of 2001.
9 High Court of Tanzania Commercial Division at Dar es Salaam, Misc. Commercial Application No. 225
of 2015.

6
argumentative while para 55 (a) - (e) contain argumentation,
hearsay and contain opinion. Para 56 (a) -(k) are
argumentative, and forms opinion. Para 57 (a) - (o) are
scandalous, insulting and some are hearsay and argumentative.

Further, paras 58 (a) (J) contain hearsay information, paras 59

(a) (0 are argumentative, hearsay and scandalous. Para 68 is
hearsay and the court should not rely on it. Para 71 is
argumentative and contains opinion and paras 73 and 75 also
contain opinion. Counsel Masumbuko, therefore, prayed that
the listed paras which are hearsay, argumentative expressing
opinion, scandalous and insulting be expunged. In his view, if
all these paras are expunged what remains cannot hold the
application.

On the third point of objection, Counsel Masumbuko basically

submitted that the application has been over taken by events
and conflict with probate procedures. Counsel Masumbuko
asserted that Probate proceedings are special. When they turn
to be contentious must strict follow Section 58 and 59 and Rule
82 o f the Probate Rules. Thus, once a caveat is lodged, as it
been done in this case the 5th and 6th Caveators, the whole
proceedings must comply with rule 82 because under Section
58 and 59 of the Probate Acts, the petition becomes a
contentious suit.

7
In such a situation, Section 52 (b) o f the Probate and
Administration Act takes effect, and the petitioner becomes the
plaintiff and the Caveators becomes defendants. To buttress
that position, Counsel Masumbuko cited the case of Revenanth
Eiiawory Meena v. Albert Eiiawory Meena and Another,™ page
13.

In found view of Counsel Masumbuko, the Court cannot go

back to issuing another citation. If the Court is to allow this
application, the proceedings will be illegal. Since the suit in
Probate No. 39 of 2019 has already matured. This Hon. Court
cannot go back to deal with caveat. The proceedings must
proceed under Section 52 of the Probate Administration Act.

On 4th point of incurable affidavit, Counsel Masumbuko re-cited

the case o f phantom on facts within knowledge of the
deponent and in Leighton case at page 6 and 7. In his view,
the 4th line from the last part of the verification are statement
given by the informer. Therefore, this affidavit is defective.

In support of the submissions by Counsel Masumbuko, Senior

Counsel Nakazael Lukio Tenga amplified that the purpose of
having caveat is a procedure which enables someone with
interest in the caveat to participate in the proceedings in the
court once a petition has matured into a suit. She explained

10 Civil Revision no. 1 of 2017 Court of Appeal of Tanzania at Arusha.

8
further that under Section 59 o f the Probate Act, there are
procedures of intervening into a suit. This is by filing an
application under the Civil Procedure Code.

In reply, Counsel Jonathan Mbuga for the Applicants

commenced by submitting that all the preliminary objections
raised and argued by the 5th and 6th Caveators have no merits
in law and facts.

On the Caveators' submissions that para 4, 6, 7, 8, 13, 17 and

58 are hearsay because they cannot be verified, Counsel
Mbuga, admitted that generally speaking, an affidavit is
substitute of oral evidence. He further admitted that as a
matter of law and procedure, a deponent is required to depone
facts which he (she from his personal knowledge. Therefore,
hearsay is not admissible. However, in his view there are
exception to the above general rule as regards the affidavit
where by hearsay can be admissible. One of the instances is
where the deponent can show the source of information as
required under Order XIX Rule3 of The Civil Procedure Code.
Counsel Mbuga went on to cite the case of Standard Goods
Cooperation Ltd v. Harackchand Nathar and Co.11 (Kenyan
decision). In that case the court discussed and held that the
deponent is required to state the source of information.

11 1950 EACA 99.

9
It was Counsel Mbuga submission that the Applicants' affidavit
complied with the above requirement of the law as she clearly
stated that the source of information was Dr. Abraham
Reginald Mengi when he was alive. Further, there is no dispute
that Dr. Mengi is no more in this world. The question before
this court is; whether there is any statutory law or case law
which forbids the wife o f the deceased deponent to rely the
information from the deceased. Counsel Mbuga went on to
answer such issue in negative. He submitted further that there
are no statutory or case law which forbids the deponent from
relying or stating that the source of information was obtained
from the deceased.

On the cited case of Phantom Modern Transport (1995) Ltd

(supra) and Leighton, Counsel Mbuga was not able to see if
those cases are supporting the arguments of the Caveators. His
view, according to those cases the deponent is supposed to
disclose the source of information. He Further distinguished the
cases cited for being not probate cases. These cases refer to
general principles which demand disclosure of sources of
information. The understanding of Counsel Mbuga on probate
matters was that hearsay cannot be avoided because both
parties are litigating on the estate of the deceased who is no
longer in this World.

10
 Counsel Mbuga asserted that, as a matter of law, Section 2 of
the Evidence Act is not applicable when dealing with matters of
affidavit. The issue of affidavit is governed by Order XIX o f the
Civil Procedure Code.

However, Counsel Mbuga invited this court to borrow the

jurisprudence in the Evidence Act on fair and just basis taking
into account that oral evidence which are governed by
Evidence Act are the best evidence than evidence by way of
affidavit.

Further, Counsel Mbuga submitted that hearsay in the Evidence

Act is strictly prohibited because Section 62 of Act requires oral
evidence to be direct. However, Section 34 of Evidence Act
provides for some exception where hearsay evidence can be
admitted. In view of the Counsel, where the source of
information is the dead person, there is no harm for this court
to rely on information received from the deceased provided the
source of information is provided.

Counsel Mbuga was of view that, since the deponent was in

official capacity as the wife of the deceased and she stated
very clear where she obtained the source of information as
required by the law, this court should ignore the prayer to
expunge para 4, 6, and 8, 13, 17, and 58 of the affidavit.

li
As regards para 55 (a)-(f), also para 56 (a) - (k) para 57 (a) -
(f) which the Counsel for the Caveators submitted that all are
argumentative or hearsay or opinion save for para 57 (b) and
(c) which he said are scandalous and insulting, Counsel Mbuga
attacked the respondent's submission by stating that he did not
even pinpoint which part of those para are argumentative
hearsay or opinion. He just mentioned that in a blanket form.
He argued that Counsel Masumbuko failed to allocate which
part among the three the Caveators' Counsel was referring.

Counsel Mbuga underlined that this is a court of law. Thus,

one function of the court of law is to make decision. It is not to
assist the parties to pinpoint which part of those paras are
argumentative, hearsay or of opinion.

Counsel Mbuga, therefore, prayed that the objection be

dismissed because extraneous matters have not been
identified. As regards para 57 (b) and (c) which were said to be
scandalous and insulting, Counsel Mbuga was of view that
those are the matters the court can address comprehensively
at the time of hearing of the main petition and not at this
stage. In his view, the court cannot just look on the para and
say this para is scandalous or hearsay without even looking at
what has been replied by the Caveators in their counter
affidavit. In his view, the law also provides the right of the
respondent to counter those scandalous or insulting statements
12
(if any) by way of filing counter affidavit and not by way of
raising preliminary objection.

It was the reply submission of Counsel Mbuga that, it is

premature for the Counsel of the respondent to move the court
to expunge those paras without hearing the parties.

Despite the submission that all impugned paras are statements

of facts as required by the law, Counsel Mbuga admitted that
para 68, 71, 73 and 75 are legal opinion and argumentative.

Besides, Counsel Mbuga was submitted that it is a matter of

law, if the court finds all the paras as stated in the preliminary
objection are defective of which he strongly disputed, this court
has three options to take.

One, to expunge or overlook those offensive paras and leave

the substantive part of the affidavit intact if are sufficient
enough to dispose the application in question. Two, to allow
the deponent to file a fresh affidavit. Three, the court can
struck out the entire application. To back up such position, he
cited the case of Rustamali Shivji Karim Merani v. Kama!
Bhushan Joshi.12 He further cited the case of Convergence
Wireless Networks (Mauritius) Led and 3 Others v. Wia Group
Ltd and 2 Others.13

12 Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 80 of 2009, at page 7
(unreported).
13 Court of Appeal of Tanzania Civil Application No. 263 B of 2015 (unreported) at page 9-10.

13
Counsel Mbuga requested the court to overlook the offensive
paras, if the court finds all the paras are defective, because the
remaining para are sufficient to dispose the application.
Counsel Mbuga went on to submit that the pending application
is for extension of time in which the applicant seeks to file a
caveat. In such application the applicant is required to show
two things. First, where she was in all those days until the time
expired. Second, she has an interest in the Probate as per
Section 5-61 of the Probate Act.14 Thus, para 51-54 show
clearly where the applicant was until the time expired.

Also, para 67 shows the extent of delay. The applicant counted

for each day of delay as deponed under para 1,2.3, 5, 9, 10,
11, 12 and so many others shows that the applicant is an
interested party. In view of Counsel Mbuga, the remaining
paras are sufficient to dispose the application. He invited this
Court to apply Rule 116 of the Probate Rules which gives wide
discretion of this court once it finds the application is defective
to amend or give any order. Counsel Mbuga thus invited this
court to go through the oxygen principle in the case of Alliance
One Tobacco Tanzania Ltd and Another v. Mwajuma Hamis and
Another/5at page 3, 4 and 5 in which this Court observed:

14 Cap 352.
15 Miscellaneous Civil Application No. 803 of 2018 High Court of Tanzania at Dar es Salaam District
Registry (Unreported).

14
It is the current law o f the land that Courts should
uphold the overriding objective principle and
disregard minor irregularities and unnecessary
technicalities so as to abide with the need to
achieve substantive justice. That proposition o f the
law is well reflected in the provision o f Section 6 o f
the Written Laws Miscellaneous Amendment Act
No. 3 o f2018...

Though dismissal o f the objection is likely to

encourage laziness to lawyers in doing their
homework prior filing applications and so hamper
the development o f jurisprudence, I find the call
made by the applicant adds more value in the
administration o f substantive justice. Upholding the
raised preliminary objection is a punishment to the
client for the mistake done by its Counsel. Indeed,
upholding o f the preliminary objection will cause
wastage o f time and resources to both litigants and
to the Court, multiplication o f unnecessary cases,
and over burdening litigants with unnecessary
costs. Upholding the same objection will not solve
the dispute o f the parties. Indeed, the Court will be
used as a vehicle o f miscarriage o f justice at the
expenses o f legal technicalities.
As regards the 2nd and 3rd point of objection, of which the
respondent Counsel dealt with Section 58, 59 (b) of Cap 352
together with rule 82 and argued that the application before
this court is overtaken by events, Counsel Mbuga responded
that the Counsel for respondent meant that Section 58 ceases
to be applicable when Section 52 (b) and rule 82 comes into
play. Thus, in the sense, the Counsel for respondent meant
that there is no room for this court toentertain any person who
wants to file caveat. Counsel Mbugareplied that it is a very
wrong interpretation of the law. Thus, one needs no case law
for interpretation of these provisions because are very clear.

According to Counsel Mbuga, Section 58 provides avenue for

anyone who have interests in the deceased estate to file caveat
against application for grant of probate or letters of
administration. That, caveat can be filed at any time before
termination of the petition for probate or letters of
administration.

After going through the law and the rules, that is the only
entrance of any person to join the proceedings of the petition,
Counsel Mbuga submitted that Section 59 (1) require the court
not to proceed with the determination of the petition until
determination of the caveat filed by the Caveators. Thus, the
said provision acts as a restraint or stay of the petition
proceeding.
16
It was submitted by Counsel Mbuga that, when the court deals
with caveat proceedings, that is where Section 52 (b) and rule
82 of the probate rules comes into play. Section 52 (b) requires
the court to apply procedures applicable nearly as in the suit,
that is why the probate causes are especial proceedings.

Counsel Mbuga posed one question; which proceedings

between the two, under which procedure can any person who
have an interest in the deceased estate join the proceedings?
He then proceeded to submit that the answer of that question
is found in Section 58. It is only by filing caveat against the
petition and not to join the caveat proceedings.

Counsel Mbuga was of the firm view that the application is

proper before the court because Section 58 allows any person
to join. Dismissal is always applicable when the matter is
determined on merits and not terminated on preliminary
objection. The right order is for striking out. To bolster up the
argument, Counsel Mbuga referred the court to the case of
Yahya Athumani Kissesa v. Hadija Omari Athumani and 2
Others.16It was Counsel Mbuga submission that it is not proper
for the respondent to request for dismissal order.

On the defectiveness of the verification clause, Counsel Mbuga

submitted that defect may come if the court expunges the

16 Court of Appeal of Tanzania, Civil Appeal No. 105 for 2014 (unreported), at page 9 and 10.

17
alleged perfective paras. Even if the court expunges and finds
the verification defective, the court has jurisdiction to allow
rectification of the defective verification. On that note, Counsel
Mbuga invited the court to read the decision of Sanyou Service
Station Ltd v. BP Tanzania Ltd (now Puma Energy (T) Ltd, Civil
Application No. 185/2017 of 2018 at page 8, 9, and 10. In that
case the court allowed amendment of the defective verification
clause.

In the premises, Counsel Mbuga prayed the preliminary

objection be dismissed with no costs.

On her part, learned Counsel Mutabuzi amplified the point that

the application been overtaken by events. It was her position
that this application has not been over taken by events. While
referring to the respondent's submission that the matter
became contentious when 5th and 6th Caveators entered a
caveat and that no any other interested party is allowed to file
any caveat, Counsel Mutabuzi viewed it as a very wrong
interpretation of the law. She then cited the case of Nuru
Hussein v. Abduighani17 in which The Court of Appeal held
that:

Where such a situation abstains it becomes

imprudent, if not fraudulent to exclude them in the

17 [2000] TLR 221.

18
 proceeding for that would make a conclusive
decision almost impossible. We are mindful o f the
submission that the applicant can intervene by way
o f other intervening and not by way of caveat any
more.

Counsel Mutabuzi asserted that in the advent of the overriding

principle, there is no need to waste more time to file other
application under Order I rule 10 of the Civil Procedure Code to
file other application while the parties are before the Court.
Doing so would be burdening the litigants and wasting
resources. Counsel Mutabuzi invited the Court to take judicial
notice of the applicant presence in Court on 16/09/2019.

Counsel Mutabuzi went on to maintain, the submission that the

application has been over taken by events is in disregard of the
fact which is apparent on the record that rule 82(3) of The
Probate Rules was not complied with. That, through this case,
the applicant could not find anywhere this court is forbidden to
issue another citation.

In view of Counsel Mutabuzi, the remedy available is to file an

application for extension since the time for the Applicant to file
a caveat has elapsed.

In rejoinder to the 1st objection, Counsel Masumbuko told the

Court that the case of Rustamali Shivji (page 4,6) and

19
convergence wireless (page 5-7) cited by the applicant agrees
with the principle. Counsel Masumbuko went on to distinguish
the Kenyan case cited by Counsel Mbuga as it does not address
the issues raised as preliminary objection. What is in
agreement para 4,6,7 (a)- (e) 8, 13, 17, 19 and 20 are
hearsay. There is no an affidavit of a person to confirm with
regard to para 65 (a) - (0, 66 (a) -(k) 67 (a)- (o) 58 (a) - (j)
and 59 (a)- (f).

On the issue of comparing to the counter affidavit, Counsel

Masumbuko submitted that there is no procedure which
requires the court to look at the counter affidavit. It is not a
point to wait till the matter is heard in evidence. Counsel
Masumbuko invited the Court to look at Rule 16 o f order VI o f
Civil Procedure Code which restricts matters which are
scandalous.

Counsel Masumbuko called upon the Court to expunge the

admitted defective paras 68, 71, 72 and 75. In the alternative,
the only option is to expunge the defective paras and to struck
out the application because the paras are consequential to the
determination of the application, without the said paras there
are no issues to be brought to the court. There is no room to
amend these issues. One cannot amend scandalous issues. The
only way is to expunge them.

20
Counsel Masumbuko distinguished Rule 116 of the Probate
Rules as it is is not relevant to these proceedings because the
applicant is not a party to this case. The overriding objective
principle cannot be applied blindly. On that note, Counsel
referred the court in the case of Mondoros Village Council and
Other v. Tanzania Breweries Ltd.18

On the second preliminary objection, in relation to Para 68,

Counsel Masumbuko noted that it has been admitted the
source of information has not been provided. If one gives
verification that person must be called in court. The verification
was done when that person has passed away. Counsel
distinguished the Phantom case because it did not say the
source of information can be a deceased person.

On the third point, Counsel Masumbuko submitted that, as the

suit is contentious now under rule 52, the argument that there
is no procedure limiting filing caveat is out of place. Thus, the
fact that there is a contentious matter, the only applicable
provision is Section 52 (b) {supra). It turns into a suit as per
the decision in Nuru Hussein v. Abduighani Ismail Hussein.19

Counsel Masumbuko distinguished the cited case of Yahya

Athumani Kissesa v. Hadija Omari Athumani and 2 Others
(supra) to the effect that the nature of the case was not a land

18 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 66 of 2017 at pp. 15-16.
19 2000 TLR 218.

21
matter but taken to a land court. The instant application is
overtaken by events. The Applicants have no room to came
back. Once the application is dismissed, it will be determined
on merits.

In her rejoinder, Senior Counsel Tenga stated that it is not true

that there is no law which forbids the deponent to rely on
information of the deceased husband. She stressed that under
Section 34 of Evidence Act hearsay evidence can be admitted
but the applicant's application does not fit unto the provision of
Section 34 of Evidence Act.

It was the humble view of Senior Counsel Tenga that the

requirement of the law under Order XIX Rule 3 of the Civil
Procedure Code of disclosing source of information is to make
the other side to verify the information. If the source of
information cannot be verified renders such affidavit worthless.
On applicability of evidence act in affidavit, Senior Counsel
Tenga added that what is meant by Section 2 of Evidence Act
is that affidavit should not be admitted whole sum as evidence
until they comply with the conduits set under Order XIX Rule 3
of the Civil Procedure Code. Affidavit can be used as evidence if
they pass the threshold of order XIX Rule 3 {supra).

Senior Counsel Tenga admitted that it is true under Section 58

of Probate Administration Act a person who have interests can

22
enter caveat. The caveat envisaged under Section 58 is against
grant of the probate. The applicant has not indicated to be
against the grant of the probate.

4. Analysis and Application of the Law

Having considered the contested affidavit and the rival

submissions by Counsel for the parties, the following are the
deliberations of this Court.

The court will start with the main contention laying the basis to
legal terms worth addressing, namely: "hearsay", "argument"
and "opinion". Starting with definition of the referred terms,
according to Black's Law Dictionary/0 at page 726, "hearsay"
means:

1. Traditionally, testimony that is given by a witness

who relates what he or she known personally\ but
what others have said and that is therefore
dependent on the credibility o f someone other
than the witness. Such testimony is generally
inadmissible under the rules o f evidence. 2. In
federal law, a statement (either a verbal assertion
or non-verbal assertive conduct), other than one
made by the declarant while testifying at the trial

20 7th Edition, St. Paul, Minnesota, 1999 (Bryan A. Gardner - Editor in Chief).

23
 or hearing, offered in evidence to prove the truth
o f the matter asserted.

The judicial definition of the word hearsay can be gathered in

among cases, the case o f Kinyatti v. Republic?1where the Court
defined hearsay or indirect evidence as; an assertion o f a
person other than the witness testifying, offered as evidence o f
truth o f that asserted rather than as evidence o f the fact that
the assertion was made. It is not original evidence.

The court in Kinyatti case {supra) stated the rule regarding

hearsay evidence to the effect that:

a statement other than one made by a person while

giving oral evidence in the proceedings is
inadmissible as evidence of any fact stated.
However, hearsay evidence may be admitted if the
statement containing it is made in conditions of
involvement or pressure and within proximity but
not exact contemporaneity as to exclude the
possibility o f concoction or distortion to the
advantage o f the maker or the disadvantage o f the
accused, (emphasis added)

Though the Kinyatti case can be distinguished with the present

case, in that it dealt with admissibility of oral hearsay evidence,

21 (1976-1985) 1 EA 234 at p. 235.

24
whereas the issue in this case is on defectiveness of the
supporting affidavit for containing inter alia, hearsay paras, the
point that the Court want to stress is the effect of hearsay
evidence. Without a supporting written sworn affidavit of the
person alleged to have said such words, there can be a danger
of using such words for the benefit of the maker or to ruin the
accused. In that regard, presence of the one alleged to have
said such words is quite important in ascertaining the truth. If
such person cannot be found, such piece of evidence has to be
expunged from the affidavit.

In the daily cited case of Uganda v. Commissioner o f Prisons,

ex-parte Matovu (supra) it was held as follows:

... as a general rule of practice and procedure, an

affidavit, for use in court, being a substitute for oral
evidence, should only contain statements o f facts to
which the witness deposes either o f his own
personal knowledge or from information he believes
to be true.

As to paras containing information from other sources, the

Court of Appeal in Salima Vuai Foum v. Registrar o f
Cooperative Societies and three Others22 the Court of Appeal
underscored at page 76 that:

22 [1995] T.L.R. 75.

25
 (i) Where an affidavit is made on information, it should
not be acted upon by any court unless the sources
o f information are specified.

According to the applicant's Counsel, the statements alleged to

be hearsay were given to the deponent by the deceased one
Dr. Reginald Abraham Mengi during his life time. The
immediate question is the effect of "hearsay" in law? In
Mustapha Raphael v. East African Gold Mines Ltd/3stated:

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 matters such as
hearsay, legal arguments, objections, prayers and
conclusions.

With due respect to the deponent's statement that the

statements alleged to be hearsay were made by the deceased,
one Dr. Mengi during his life time, the same makes no
difference with regard to contents of an affidavit. A duly
research by this Court found nothing in exception to the fate of
statements made by a deceased person and that made by a
living person. Moreover, even if the same is said to have been
made by the deceased Dr. Reginald Abraham Mengi, the same
lacks proof as he cannot resurrect and come to prove the same

23 Court of Appeal of Tanzania, Civil Application No. 40 of 1998 (Dar es Salaam Registry,
(Unreported).

26
leave alone the Christian belief of Jesus Christ in the Bible. In
Benedict Kimwaga v. Principal Secretary Ministry o f Health/4
the Court held:

if an affidavit mentions another person, then that

other person has to swear an affidavit. However, ...
the information of that other person is material
evidence because without the other affidavit it
would be hearsay.

In NBC Ltd v. Superdoll Trailer Manufacture Co Ltd/5the Court

held that affidavit which mention another person is hearsay
unless that other person swears as well.

The argument made by Counsel Mbuga that hearsay can be

admissible where the deponent can show the source of
information as required under Order XIX Rule 3 of the Civil
Procedure Code is a far fetching point. It is the findings of the
Court that showing the source alone do not make the affidavit
admissible. (See Kimwaga case supra). There must be a
supporting affidavit from the person alleged to have said such
words. To the contrary such evidence remains hearsay.

If at the trial of the matter, the court would take of the position
that the words in the impugned sworn affidavit of the applicant
were spoken by Dr. Reginald Abraham Mengi, and other
24 Court of Appeal of Tanzania, Civil Application No 31 of 2000.
25 Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 13 of 2002 (Unreported).

27
sources like Dr. Kuashik Ranchod who is alleged under para 13
of the affidavit, the court will have a duty to ascertain their
truth. The Privy Council in Ratten v. R.26 as cited with approval
in the case of Brinks Ltd vAbu-Saieh and Others (No. 2),27Lord
Wilberforce said:

The mere fact that evidence o f a witness includes

evidence as to words spoken by another person
who is not called is no objection to its admissibility.
Words spoken are facts just as much as any other
action by a human being. I f the speaking o f the
words is a relevant fact, a witness may give
evidence that they were spoken. A question o f
hearsay only arises when the words spoken are
relied on "testimonially" that is as establishing
some fact narrated by the words. Authority is
hardly needed for this proposition, but their
Lordships will restate what was said in the
judgement o f the Board in Subramaniam v Public
Prosecutor:28 "Evidence o f a statement made to a
witness by a person who is not himself called as a
witness may or may not be hearsay. It is hearsay
and inadmissible when the object o f the evidence is

26 (1971) 3 All ER 801 at 805, (1972) AC 378 at 387.

27 (1995) 4 All ER 85.
28 (1956) 1 WLR 965 at 970.

28
 to establish the truth o f what is contained in the
statement It is not hearsay and is admissible when
it is proposed to establish by the evidence, not the
truth o f the statement but the fact that it was
made.

In the instant case, the applicant has testimonially relied from

the words heard from the deceased, para 4, 6, 7, 7 (a) - 7 (b),
8, 13,17, 18, 28, 55 (a) - (e ), 56 (a) - (k) 57 (a) - (o), 58 (a) -
(j), 59 (a) - (f) 68, 71, 73 and 75, though denied by the
Applicants are hearsay evidence. For instance, para 4 and 13 of
the impugned affidavit states:

4. When the late Dr Reginald Abraham Mengi began

courting me he told me that he had been separated
from his wife, Mercy Ann Mengi (hereinafter referred to
by her name or \divorced wife' or \former wife) for
over 10 years during which time both o f them had
been having relationships with other persons.

13. Further, that Dr Kuashik Ranchod told me that my late

husband had suffered a mild stroke and he was
hospitalized for a few days.

From the above, it is the position of this Court that the

argument of the applicant is non-meritorious in law. Hearsay
evidence cannot be relied upon by the Court. Even if relied

29
upon, the same are not good ground for extension of time to
file caveat.

This court is of position that Rule 3 o f order XIX (supra) gives

an exception of the general rule on matters of belief and not
hearsay. A person may believe something without hearing from
anyone. To be precise Order XIXRule 3 (1) (supra) provides:

Affidavit shall be confined to such facts as the

deponent is able of his knowledge to prove, except
on interlocutory applications on which statements
o f his belief may be admitted. Provided that the
grounds thereof are stated, (emphasis added)

While this court agrees that hearsay cannot be avoided

because parties are litigating over the estate of the deceased,
for the court to safely rely on such words spoken by the
deceased, there must be a supporting affidavit of the deceased
sworn prior his/her death. In that circumstances, an attesting
officer may be brought as a compulsory witness.

Indeed, the point that the deponent was in official capacity as

the wife of the deceased and that she stated the source of
information lacks legal weight. The deceased should had sworn
an affidavit prior his death. The same evidence may be
supported with an affidavit of his attesting officer to make it
not a hearsay and of truth.

30
I also agree that this is a court of law whose core function is to
make decision and not to assist parties to point out defective
paragraphs however, the impugned paragraphs are not long
enough to be ascertained unless one reads them mechanically.

The reading of the phrases in paragraph 4 and 6 of the

impugned decision, does not need a law degree for one to note
that it is a hearsay evidence. The same applies to all impugned
paragraphs of the application supporting affidavit.

On the other, according to Black's Law Dictionary/9 at page

103, "argument" means:

1. A statement that attempts to persuade; especially,

the remarks of Counsel in analysing and pointing out
or repudiating a desired inference, for the assistance
of a decision maker. 2. The act or process of
attempting to persuade.

In the case of Mustapha Raphael v. East African Gold

Mines Ltd,30the Court held that:

An affidavit is not a kind of superior evidence. It is

simply a written statement of oath. It has to be
factual and free from extraneous matters such as

29 7th Edition, St. Paul, Minn., 1999 (Bryan A. Gardner - Editor in Chief).
30 Court of Appeal Civil Application No 40 of 1998 at Dar es Salaam.

31
 hearsay, legal arguments, objections, prayers and
conclusions, (emphasis added)

In the case of Dar es Salaam Education and Officer Stationery

v. NBC Holding Corporation and Others,31 the Court of Appeal
of Tanzania held that advanced arguments in affidavit is so
offensive as to cause an application to be struck out and
thereby deny final court o fjustice an opportunity to determine
a matter on merits.

In the case of Fortunatus Nyigana v. Permanent Secretary

Ministry o f Home Affairs & Another,32 the Court of Appeal held
that an affidavit is defective for containing argumentative
statement and argumentative para.

Legal Opinion is defined in Black Law Dictionary (supra) at

page 1120 as a written statement in which an attorney
provides his or her understanding of the law as applied to
assumed fact. The attorney may be private or attorney
representing the states or governmental entity. A party may be
entitled to rely on a legal opinion depending on factors such as
the identity of the parties to whom the opinion was addressed
and the law governing opinions.

31 Court of Appeal of Tanzania at Dar es Salaam, Civil Application No 39 of 1999.

32 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No 37 of 2014 258.

32
In the case of Godgives Transport Ltd and Another v.
Commercial Bank o f Africa,33 the Court struck out the
application on inter alia reason that the supporting affidavit
contained legal arguments and opinions.

According to Black Law Dictionary (supra) Scandalous matters

are matters that are both grossly disgraceful and (defamatory)
and irrelevant to action or defence. A federal court, upon a
party's motion or on its own can order a scandalous matter to
strike from pleading.

Insulting as per Dictionary o f Current English 7th edition means

causing or intending to feel offended: oxford Advanced
learners.

With the afore definitions in mind, what stands to be the

position of the law with regard to offensive paras in an
affidavit? As correctly submitted by the learned Counsel for the
5th and 6th Caveators in the same Phantom Modern Transport
(1985) Ltd and D. T. Dobie (Tanzania) Ltd (supra) that:

It seems to us that where defects in an affidavit are

inconsequential, those offensive paras can be
expunged or overlooked, leaving the substantive
parts o f it intact so that the Court can proceed to
act on it If, however, substantive parts of an

33 High Court of Tanzania, Commercial Division, Commerical Case No. 135 of 2018.

33
 affidavit are defective, it cannot be amended in the
sense of striking off the offensive parts and
substituting thereof correct averments in the
affidavit. But where the Court is minded to allow
the deponent to remedy the defects, it may allow
him or her to file a fresh affidavit containing correct
averments. What in effect it means is that a fresh
affidavit is substituted for the defective one. ...

It is the findings of this Court that if the offensive parts of the

affidavit are retained, will affect the suit because the offensive
parts which are insulting and scandalous hinges to the alleged
characters of the caveators.

After going through the affidavit by Mrs. Jacqueline

Ntuyabaliwe Mengi (personally and as legal representative of
the 2nd & 3rd Applicants), it is clear that the pointed-out paras
by learned friends for the 5th and 6th Caveators are defective in
law for being either hearsay, argumentative or opinion.

It has been argued to the satisfaction of this Court that the

contested paras 4, 6, 7, 7(a) to 7(e), 8, 13, 17, 19, 28, 55(a) to
55(e), 56(a) to 56(k), 57(a) to 57(o), 58(a) to 58(j), 59(a) to
59(f), 68, 71, 73 & 75 are either hearsay, argumentative,
expressing opinion/legal points, insulting and scandalous as
pointed out by Counsel for the 5th and 6th Caveators. The

34
immediate question is what should the appropriate order to be
issued by this Court? The High Court in the case of Omari Ally
Omary v. Idd Mohamed and Others,34 Massati, J. (as he then
was) had these to say:

From the authorities contained in the decision of

the Court o f Appeal in La/ago Cotton Ginnery and
OH Mills Company Limited v. LARI35 Phantom
Modem Transport (1985) LTD v. D.T. Dobie
(Tanzania) Ltd36 and Manorial Aggarwal v.
Tanganyika Land Agency Ltd. 8l Others?7 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 o f 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 o f a substantial
or substantive nature, no amendment should
be allowed as they are a nullity, and there can
be no amendment to a nothing.

34 Court of Appeal of Tanzania, Civil Revision No. 90 of 2003 (Dar es Salaam Registry), (Unreported).
35 Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 8 of 2003.
36 Court of Appeal of Tanzania at Dar es Salaam, Civil References No. 15 of 2001 and 3 of 2002.
37 Court of Appeal of Tanzania at Dar es Salaam, Civil Reference No. 11 of 1999.

35
In the light of the above legal authorities, it is the findings of
this Court that the affidavit filed is defective and thus ruining its
validity to stand in law. Thus, the application by the Applicants
for extension of time to file caveat is incompetent to an extent
that no order to file a fresh affidavit can salvage the situation.

Counsel for the 5th and 6th Caveators raised an issue of

verification in the Applicants' affidavit in the 4th point of
Preliminary Point of Objection. According to Sri. G.C. Mogha in
the Law o f Pleadings in India/8 reads at pages 58 & 59 that:

Want of signature or verification or any defect in

either will not make the pleading void and a suit
cannot be dismissed nor can a defence be struck
out simply for want of, or a defect in the signature
or verification of the plaint or written statement, as
these are matters of procedure only. It has been
treated to be a mere irregularity and curable by
amendment. The defect may be cured by
amendment, at any stage of the suit, and when it is
cured by amendment, the plaint must be taken to
have been presented on the date on which it was
amended. If the defect is discovered in appeal, the
appellate Court may, if it thinks fit, have the defect
removed, but where the defect is such that it does
3814th Edition, published by Eastern Law House.
 not affect the merits of the case, no notice of it
need be taken.

Likewise; in Mulla, the Code o f Civil Procedure,39 it reads

at page 1181 that:

A pleading which is not verified in the manner

required by this rule may be verified at a later stage
of the suit; even after the expiry of the limitation
period. The omission to verify a pleading is a mere
irregularity within the meaning of s 99 of the Code.
The expression 'any error, defect or irregularity in
any proceeding in any suit' includes signing and
verification as laid down in 0 6, rule 14 and 15 and
could be cured at any stage.

In F.A. Sapa v. Singora40Xhe Court underscored that:

The object of requiring verification is clearly to fix

the responsibility for the averments and allegations
in the petition on the person signing the verification
and at the same time discouraging wild and
irresponsible allegations unsupported by facts.

Also, this falls under matters which need to be substantiated,

meaning that, they are not pure points of law. In that regard,

3916th Edition, Volume II.

40 [1991] 3 SCC 375.

37
out rightly; they ought not to have been raised as Preliminary
Objection. Alternatively; even considering that the verification
clause was as such defective, the following caters in redress.
Order VI Rule 15(1) of the Civil Procedure Code,41 that:

Save as otherwise provided by any law for the time

being in force, every pleading shall be verified at
the foot by the party or by one of the pleadings or
by some other person proved to the satisfaction o f
the Court to be acquainted with the facts o f the
case.

Regarding essence of the verification and duty to be bound by

whatever has been asserted, in F.A. Sapa v. Singora (supra)
the Court underscored:

The object o f requiring verification is clearly to fix

the responsibility for the averments and allegations
in the petition on the person signing the verification
and at the same time discouraging wild and
irresponsible allegations unsupported by facts.

In SRI. G.C. Mogha in The Law o f Pleadings in India,42 it reads

in pages 58 and 59 that:

41 [Cap. 33].
4214th Edition, published by Eastern Law House.

38
 Want of signature or verification or any defect in
either will not make the pleading void, and a suit
cannot be dismissed nor can a defence be struck
out simply for want of, or a defect in the signature
or verification o f the plaint or written statement, as
these are matters o f procedure only. It has been
treated to be a mere irregularity and curable by
amendment.

The above caters for the essence of clarity on whatever is

asserted. The consequent question is, whatstands the law
position in redress? In Mulla, The Code o f Civil Procedure,43 it
reads at page 1181 that:

A pleading which is not verified in the manner

required by this rule may be verified at a later stage
of the suit; even after the expiry of the limitation
period. The omission to verify a pleading is a mere
irregularity within the meaning of s 99 of the Code.
The expression 'any error, defect or irregularity in
any proceeding in any suit' includes signing and
verification as laid down in O 6, rules 14 and 15
and could be cured at any stage.

4316th Edition, Volume II.

39
The Indian position has been considered and domesticated
with approval by the High Court in the decisions of: Kiganga
and Associated Gold Mining Company Limited v. Universal Gold
N.L44 and Godfrey Basil Mramba v. The Managing Editor & 2
Others45 in which the High Court in the two scenarios made
orders for amendment of the pleadings in the interest of justice
to the parties. But in the matter under scrutiny, an order for
amendment cannot salvage the situation.

Being the case, such exercise of powers is consequent to

substantiation of such allegations through hearing, the stage
which has not been reached. Furthermore, even if such paras
exist, the Court is mandated to go allow a party to file a fresh
affidavit containing the correct averments. In other words, this
falls within discretionary powers of the Court, hence, cannot be
raised as a Preliminary Objection in purview of Mukisa Biscuit
Manufacturing Company Ltd v. West End Distributors Ltd 46 in
which Sir Charles Newbold, P. kept that position at page 701:

A preliminary Objection is in the nature of what

used to be a demurrer. It raises a pure point of law
which is argued on the assumption that all the facts
pleaded by the other side are correct. It cannot be

44 Commercial Cause No. 24/2000 (Dar es Salaam Registry) (Unreported).

45 Civil Case No. 166/2006, (Dar es Salaam Registry), (Unreported).
46 (1969) EA 696

40
 raised if any fact has to be ascertained or if what is
sought is the exercise o fjudicial discretion.

From the above analysis, though Counsel for the parties argued
on that issue, this Court is of a firm view that, for the sake of
substantial justice; any defect in the verification clause be it in
the affidavit or any other pleadings is curable in law. Therefore;
the said preliminary objection on verification clause is hereby
overruled for lack of merits.

5. Conclusion

To sum up, this court agrees that under Section 58 o f the

Probate Act (supra) anyone who have interests in the
deceased's estate can file a caveat against application for
appointment of probate administrator. However, such caveat
must comply with the requirement of Rule 82 (2A) o f the
Probate Rules (supra). It must be filed within 30 days after
issuing of general citation. There is no procedure of joining
caveat proceedings.

Although, it was proper to file an application for extension of

time to file caveat, the filed caveat suffers serious defects as
elaborated in this ruling. On account of the said defects in the
supporting affidavit of Jacqueline Ntuyabaliwe Mengi for having
hearsay, argumentation, expressing opinion/legal points,

41
insulting and scandalous paragraphs, the Court finds the
application cannot be salvaged.

In the circumstances, the 1st piea in limine litis raised by the

Caveators' Counsel is sustained on merits. Consequently, the
application is hereby struck out. Considering that this is a
probate and administration issue, this Court orders for parties
to bear for their own costs.

Ruling delivered and dated 09th March, 2020 in the presence of

Senior Counsel Dosca Mtabuzi and Counsel Jonathan Mbuga for
the applicants and Senior Counsel Abel Msuya for the
petitioners, Senior Counsel Nakazael Lukio Tenga, Counsel
Roman Masumbuko, Hamis Mfinanga and Greyson Laizer for
the caveators.

42