♦

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)
AT DAR ES SALAAM

MISC LAND APPLICATION NO. 165 OF 2022

(Arising from the Order ofthe Court dated 2P'March 2022,
in Execution Application No.49 of2020)

MICHAEL CLEMENT APPLICANT

VERSUS

ABDALLAH MFAUME MDOGWA RESPONDENT

MAFAUME MDOGWA RESPONDENT
COMMISSIONER FOR LAND NECESSARY PARTY
THE HON. ATTORNEY GENERAL NECESSARY PARTY

Date oflast Hearing: 25/08/2022

Date of Ruling: 06/10/2022
RULING

I. ARUFANI,3
When the present application came for hearing on 19"^ July, 2022
the court informed the counsel for the parties that it has discovered some
defects in the affidavit supporting the application as some of the
paragraphs of the affidavit are not verified and other paragraphs were
verified on information which its source was not disclosed in the
verification clause.

At the hearing the afore stated defects the applicant was

represented by Mr. Nduruma Keya Majembe iearned advocate who was
assisted by Mr. Martin Sangira, learned advocate. On the other hand, the
1
first and second respondents were represented by Mr. Boaz Albany

Msoffe, learned State Attorney holding brief for Mr. Victor Ntalula, learned

advocate and Mr. Boaz Albany Msoffe represented the necessary parties.

Mr. Nduruma Keya Majembe told the court that, it is a requirement

of the law that verification is done on paragraphs and sub paragraphs

does not stand alone. He stated his affidavit shows all paragraphs were

verified. He stated he believes the way the affidavit supporting the

application is verified is meeting the requirement of the law and it can be

used to dispense justice in the present application. He stated the defects

found in the affidavit by the court do not prejudice any party or the court

and submitted it can be used to dispense justice in the present application.

He referred the court to case of Sanyou Service Station Ltd V.

BP Tanzania Ltd, Civil Application No. 185/17 of 2018 where the court

applied the oxygen principle and stated that, although procedures are

supposed to be followed but the court is supposed to be guided by sense

of justice. He submitted that, if the court will find there is any defect on

the application,the applicant be allowed to amend the affidavit supporting

the affidavit and proceed to hear the application on merit.

In reply Mr. Boaz A. Msoffe told the court their reply has two limbs.

He said the first limb is whether the affidavit is properly verified and

second limb is whether the facts deposed in affidavit supporting the

application is true to the best of knowledge of the deponent. He stated in

relation to the first limb that, each paragraph and subparagraph in an

affidavit were supposed to be verified.

He submitted that, it is not true or correct to say verification of

paragraphs of the affidavit is enough to cover subparagraphs which have

their own facts. He submitted that the case of Sanyou Service Station

Ltd cited by the counsel for the applicant is distinguishable from the

present application because while in the present application the issue is

non verification of subparagraphs contained in the affidavit supporting the

application the issue in the said case was numbering of paragraphs of an

affidavit wrongly.

He argued in relation to the second limb of his submission that, it is

a requirement of the law as provided under Order XIX Rule 3 of the Civil

Procedure Code that an affidavit should be sworn on the knowledge of

the deponent and where is sworn on information received from the other

source, the said source must be disclosed. He stated failure to disclose

the source of the information renders the affidavit defective. He referred

the court to the case of Salma Vuai Foum V. Registrar of

Cooperative Societies & Others, [1995] TLR 75 where it was stated

an affidavit made on information should not be acted upon unless the

source of the information is disclosed.

 He argued that, although the deponent of the affidavit supporting

the application deposed all facts in the affidavit are on his own knowledge

but what is deposed at paragraphs 2.3.1 and 4.2 are information obtained

from the court's clerk and paragraph 5 is an information obtained from

the applicant but the deponent stated all paragraphs are verified on his

own knowledge. He stated it was not disclosed in the verification clause

the stated facts were information obtained from the mentioned persons

which is contrary to the law.

He submitted that, as the verification clause of the affidavit

supporting the application is defective then it renders the application

incurably defective as it lacks legs to stand on. He submitted further that

under the stated circumstances the court cannot allow incompetent

application to be amended. At the end he prayed the court struck out the

application for being supported by a defective affidavit.

In rejoinder the counsel for the applicant told the court is conceding

to the point of law stated by the counsel for the respondents as stated in

the case of Salma Vuai Foum. He however stated that, as the said case

was decided in 1995 and it cannot be applied in the case at hand as the

law has changed following an introduction of oxygen principle into our

laws. He referred the court to the case of Sanyou Service Station Ltd
where it was stated defect on verification clause is no longer fatal and

cannot be a ground of striking out the application.

He stated he believes the case of Sanyou Service Station Ltd is

not distinguishable from the present application because in the cited case

there were paragraphs which were not verified at all as it is in the affidavit

supporting the present application and the court allowed the affidavit to

be amended. He prayed the court to rely on the afore cited case to desist

to strike out the application as to do so will not give any benefit to the

respondent or the court and instead of that it will cause multiplicity of the

applications in the court.

After considering the rival submissions from the counsel for the

parties in relation to the defect observed by the court in the affidavit

supporting the application, the court has found the issue to determine

here is whether the affidavit supporting the application is properly verified

and if the answer is not in affirmative whether the applicant can be

allowed to amend verification of the affidavit supporting the application.

The requirement to verify an affidavit properly was emphasized by

the Court of Appeal in the case of Lisa E. Peter V. Al-Hushoom

Investment, Civil Application No. 147 of 2016, CAT at DSN (unreported)

where when the Court of Appeal was dealing with importance of proper

verification of an affidavit it referred to the decision given by the Supreme

Court of India in the case of A. K. K. Nambiar V. Union of India (1970)

35CR 121 where it was held that: -

"The reasons for verification ofaffidavits are to enabie the Court

to find out which facts can be said to be proved on the affidavit

evidence ofrivaiparties. Aiiegations may be true to information
received from persons or aifegation may be based on records.
The importance of verification is to test the genuineness and
authenticity of aiiegations and aiso to make the deponent
responsibie for ailegation. In essence, verification is required to
enabie the Court to find out as to whether it wHi be safe to act

on such affidavit evidence. In the absence of proper

verification^ affidavits cannot be admitted in evidence."
[Emphasis added].

Basing on the position of the law stated in the above quoted case

and after going through the affidavit supporting the application the court

has found that, verification of the affidavit supporting the present

application shows the counsel for the applicant verified paragraphs 1, 2,

3, 4, 5, 6 and 7 of the affidavit only and he didn't verify what is deposed

in sub paragraphs 2.1, 2.2, 2.3, 2.3.1, 2.3.2, 2.4, 3.1, 3.2, 4.1, 4.2, 4.3,

6.1 and 6.2 contained in the affidavit supporting the application.

The court has found that, although Order XIX of the CPC which

governs proof of a case by way of an affidavit does not state how

verification of an affidavit is supposed to be made but by basing on the

position of the law stated in the cases of Salma Vuai Foum and Lisa E.
6
Peter cited to the court by the counsel for the respondents it is the view

of this court that, verification of an affidavit is supposed to be made by

making reference to all numbered paragraphs and sub paragraphs

deposed in an affidavit.

If verification of an affidavit supporting the application is required

to be made by reference to the numbered paragraphs, then as rightly

argued by the counsel for the respondents, where an affidavit contains

paragraphs and subparagraphs all paragraphs and sub paragraphs

contained in an affidavit are supposed to be verified. It is not correct to

say verification can be done on paragraphs alone and leave sub

paragraphs unverified and said an affidavit is properly verified.

The court has also found that, as rightly argued by the counsel for

the respondents it is not only that the subparagraphs contained, in the

affidavit supporting application are not verified but also the affidavit

contains information from other sources and the said information are not

disclosed in the verification clause. The said information can be seeing at

paragraphs 2.3.1, 2.3.2, 3.2'and 4.2 where it is deposed the deponent

received the information contained in the mentioned subparagraphs from

the Court Clerk and the facts contained in paragraph 5 of the

\

supplementary affidavit is an information he obtained from the applicant.

 The position of the law as provided under Order XIX Rule 3 of the

CPC is very clear that an affidavit shall be confined to such facts as the

deponent is able of his own knowledge to prove and statement of his

belief may only be admitted where the ground thereof is stated. The court

has also found it was stated in the cases of Phantom Modern

Transport (1985) Ltd Civil Application No. 141 of 2001, CAT at DSM

(Unreported) and DP Shapriya & Co. Ltd V. Bish International, Civil

Application No. 53 of 2002, CAT at DSM (unreported) that, an affidavit

should contain statement to which the deponent deposes on his own

knowledge.

While dealing with the similar issue in the case of Anatol Peter

Rwebangira V. The Principal Secretary, Ministry of Defence and

National Service & Another, Civil Application No. 548/04 of 2018

(unreported), the Court of Appeal quoted a passage from the Book titled

Civil Procedure by C. K. Takwani where is stated that, where an

averment is not based on personal knowledge, the source of information

should clearly be disclosed.

The position of the law stated hereinabove caused the court to come

to the finding that, as the affidavit supporting the application contain

subparagraphs which are not verified and other paragraphs are deposed

on information which its source has not been disclosed then it is crystal
clear that the affidavit supporting the application of the appiicant is

defective as is contravening the position of the law stated hereinabove.

Having arrived to the stated finding the question to determine here is

what is the remedy for the stated defective affidavit.

The court has found that, while the counsel for the applicant argued

the remedy is to allow the applicant to rectify the defects found in the

affidavit by way of amending the affidavit, the counsel for the respondents

argued the observed defect cannot be rectified by way of amending the

affidavit and in lieu thereof what is required to be done is for the

application to be struck out as it has no legs to stand on.

The court has found the long-established position of the law under

the circumstances of the present application is that, where an affidavit is

defective on its verification clause and the defect does not affect the

substantive part of the affidavit the court can expunge or overlooked the

offensive paragraphs and proceed to entertain the application by basing

on the remaining part of the affidavit supporting the application. The

stated position of the law can be seeing in the case of Phantom Modern

Transport[1985] Ltd V> D. T. Dobie(TZ) Ltd,(supra) where it was

stated inconsequential defects in an affidavit can be allowed to be

amended. The Court of Appeal stated in the above cited case that: -

"...where defects in an affidavit are inconsequentiai those.

offensive paragraphs can be expunged or overiooked, ieaving
9
 the substantive parts intactso that the court can proceed to act
on it If, however, substantialparts ofan affidavit are defective,
it cannot be amended in the sense ofstriking off the offensive
parts and substituting there for correct averments in the same
affidavit but when the court is minded to aiiow the deponent to
remedy the defects, it may allow him or her to file a fresh
affidavit containing correct averments."
The position of the law stated in the above cited case is also being

supported by decisions made by the Court of Appeal of Tanzania in the

cases of The University of Dar es Salaam V. Mwenge Gas and Lub-

011 Limited, Civil Application No 76 of 1999 (Unreported) where it was

stated that: -

"Bearing in mind what was stated by this court in Salm Vuai

Foum case(supra), it would appear thata court has discretion
to allow a deponent ofan affidavit lacking verification clause to
amend the affidavit I take it, that by using the word 'amend',
this court meant that the deponent can, ifcircumstancesJustify
it, grant leave to the deponent to file an affidavit with a
verification clause."

The position stated in the above cited case was followed in the case

of Sanyou Service Station Ltd cited by the counsel for the applicant in

his submission and In the case of Jamal S. Mkumba & Another V,

Attorney General, Civil Application No. 240/01 of 2019 were deponents

of an affidavits which were found had not disclosed the source of

information contained in their affidavits and some paragraphs contained

10
in their affidavits had not been verified were allowed to amended their

affidavits for the purpose of enabling the parties to be heard on merit.

The court has considered the argument by the counsel for the

respondents that the case of Sanyou Service Station Ltd Is not

applicable and is distinguishable from the present application but failed to

agree with his argument. The court has arrived to the stated finding after

seeing that, as rightly argued by the counsel for the applicant there were

some paragraphs which had not been verified at all in the affidavit filed in

the cited case as it is In the present application and the court allowed the

affidavit to be amended in the cited case. Therefore, the court has found

the cited case is relevant and applicable to the present application.

While being guided by the position of the law stated hereinabove

the court has found the argument by the counsel for the respondents that

the defect found In the affidavit supporting the application cannot be

amended rather is supposed to be struck out cannot be an appropriate

remedy in the present application. The reason for coming to the above

finding is because as rightly argued by the counsel for the applicant to

struck out the application will not benefit any of the party in the

application or the court but rather it will continue to delay dispensation of

justice in the matter while the vision of the court is dispensation of justice

timely.

11
 Consequently, the court has found that, although it has been found

the affidavit supporting the application is defective for having a defective

verification clause but the applicant is granted leave to amend the affidavit

supporting the application by filing in the court a fresh and properly

verified affidavit to support the chamber summons so that the application

can be heard and determined on merit. The properly verified affidavit to

be filed in the court within seven (7) days from the date of this ruling. It

is so ordered.

Dated at^pac=^Salaam this 6^*^ day of October, 2022

UY I. Arufani
H JUDGE

A
06/10/2022
Court;

Ruling delivered today 06^^ day of October, 2022 in the presence of

Mr. Nduruma Keya Majembe, advocate for the applicant and in the

presence of Mr. Victor Ntalula, advocate for the first and second

respondents and in the presence of Mr. Boaz Albany Msoffe, State

Attorney for the necessary parties. Right of appeal to the Court of Appeal

is fully explained.
^\GH
&
I. Arufani
¥ \0
r JUDGE

a 06/10/2022
A
12