IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DODOMA DISTRICT REGISTRY)

AT DODOMA

MISC. LAND APPLICATION NO. 95 OF 2022

(Originating from High Court of Tanzania at Dodoma in Land Case No. 38 of2022)

ABDALLAH YUSUFU NDONGWE.............................................Ist APPLICANT

MOHAMED JUMA YUSUFU..................................................... 2nd APPLICANT

VERSUS

IKUNGI DISTRICT COUNCIL........................................... 1st RESPONDENT

ATTORNEY GENERAL....................................................... 2nd RESPONDENT

RULING
24th March & 5th June, 2023

KHALFAN, J.

The Applicants ABDALLAH YUSUFU NDONGWE and MOHAMED

JUMA YUSUFU, filed this Application under Order XXVII Rule 1 (a) of the

Civil Procedure Code, [CAP. 33 R.E 2022] supported by a joint affidavit of

the Applicants themselves sworn on 28th day of October 2022 for orders

that this Court be pleased to grant temporary orders against the 1st

Respondent or his assignees or his agents from entering or mortgaging

the Applicants' land measuring 8.7 acres located at Samumba suburb,

Muungano Village within Ikungi District pending the hearing of Land Case

No. 38 of 2022 which has been filed in this Court.

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 The Applicants were represented by Mr. Fred Kalonga, Learned

Advocate while the Respondents were represented by Felician Daniel,

Learned State Attorney. Prior to hearing of the application, Mr. Daniel

raised a preliminary objection on point of law based on the following

grounds:

1. This Application is incompetent for being supported by a defective

affidavit containing hearsay.

2. This Application is incompetent for want of proper citation of

enabling provisions to move this Court to determine the Application.

Mr. Daniel in supporting his preliminary objection, submitted that

the Applicants'joint Affidavit especially paragraphs 5, 6, 9 and 11 contain

hearsay information against the requirements of Order XIX Rule 3(1) and

(2) of Civil Procedure Code. To support his contention, he cited the case

of Yobu Sikilo & 16 Others vs. Furahini Vahaye, Misc. Land

Application No. 105 of 2018, (HCT) Mbeya, page 7 and the case of

Dianarose Spareparts Ltd vs. Commissioner General Tanzania

Revenue Authority, Civil Application No. 245/20 of 2021, (CAT) Dar es

Salaam, page 9.

Mr. Daniel contended that at paragraph 6 of the joint affidavit, they

mentioned the names of the District Executive Director and District

Commissioner of Ikungi without producing their affidavits as required by

the law. For such reason, he invited this court to strike out the application.

On the second preliminary objection, Mr. Daniel stated that, the Applicants

cited Order XXVII Rule 1 (a) of Civil Procedure Code, [CAP. 33 R.E 2022]

in the Chamber Summons while the Civil Procedure Code is not among

the laws which were revised in the year 2022 under the Government

Notice. He added that Order XXXVII, Rule 1 (b) provides that an order for

temporary injunction shall not be made against the Government but the

Court may in lieu thereof shall make declaratory order on the rights of the

parties. They ought to have prayed for declaratory order and not

temporary injunction.

To cement his contention, Mr. Daniel cited the case of Jimmy

Lugendo vs. CRDB Bank Ltd, Civil Application No. 171/01 of 2017,

(CAT) Dar es Salaam, page 6 and the case of John Marco vs. Seif

Joshua Malimbe, Misc. Land Application No. 66 of 2019, (HCT) Mwanza,

page 6. Based on the above submission, he prayed for this Application to

be struck out with costs.

Mr. Kalonga opposed the preliminary objections. He contended that

the paragraphs which the learned Advocate stated that they are based on

hearsay, are not based on hearsay statement as alleged. He thus prayed

to the Court to overrule the preliminary objection.

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 On second Preliminary Objection, Mr. Kalonga stated that, the citing

of Order XXVII, Rule 1 (a) of the Civil Procedure Code, [CAP. 33 R.E 2022]

in the Chamber Summons is a clerical error as they intended to write

Order XXXVII, Rule 1 (a); and because this Court has jurisdiction to grant

injunction, that omission is not fatal. He added that it is true that the

temporary injunction shall not be made against the Government but the

Court in lieu thereof shall make a declaratory order of the right of the

parties. He therefore wound up his submission by praying the Court to

overrule all the two grounds of preliminary objection as they are not

meritorious.

In rejoinder, Mr. Daniel, insisted this Court to consider his submission

and pray for this Court to struck out this Application. He added that the

learned advocate for the Applicants had agreed with his contention that

the affidavit contained hearsay statements, in particular paragraph 6, and

on the cited provision of law by saying it was a clerical error.

I have duly considered the parties' submission, and how to

determine the preliminary objections on point of law raised. I will start

with the first point of preliminary objection.

It is the Respondents' contention that the Application is incompetent

for being supported by a defective affidavit containing hearsay. I will agree

with the learned State Attorney for the Respondents that the law under

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Order XIX Rule 3(1), and (2) of the Civil Procedure Code, [CAP. 33 R.E

2019] requires the affidavit to constitute facts which are in the knowledge

of the deponent. The same provides:

'5. (1) Affidavits shall be confined to such facts as the

deponent is able of his own knowledge to prove, except on
interlocutory applications on which statements of his belief

may be admitted:
Provided that, the grounds thereof are stated.
(2) The costs of every affidavit which unnecessarily set forth

matters of hearsay or argumentative matter or copies of or

extracts from documents shall (unless the court otherwise
directs) be paid by the party filing the same.'

Therefore, if the affidavit consists of hearsay statements, it shall be

defective and the application supported by the same shall be rendered

incompetent.

This Court has, therefore, examined the purported paragraph 5, 6,

9 and 11 and found that these paragraphs contain statements which are

in the knowledge of the Applicants as required by the law. I am mindful

of paragraph 5 in which they have stated that they have been the users

of the land in dispute for decades. These facts are obvious from their

knowledge unless the other bundle of facts exist to disprove the same.

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Also, under paragraph 6, the Applicants have deponed facts on the

meeting convened by the District Executive Director and District

Commissioner of Ikungi on 30/12/2021 with the residents of Samumba;

logically, by them being the residents of Samumba. And as per annexure

OSG1 of the Respondents' joint counter affidavit which is the minute of

such meeting, it is an undisputed fact that they attended the meeting and

therefore such facts deponed are within their knowledge.

Moreover, in paragraphs 9 and 11, the Applicants raised the issue of

survey, which should be read together with paragraph 7 in which the

Applicants mentioned the valuation number given to them. That being the

case, these paragraphs 9 and 11 as well cannot be taken as hearsay since

they are clear facts from the Applicant's knowledge. Consequently, the

first ground of preliminary objection is overruled.

Coming to the second ground of the preliminary objection that this

application is incompetent for want of proper citation of enabling

provisions to move the Court to determine the application, it is not

disputed that the applicants have moved the Court under wrong provision

of the law as admitted by their advocate despite contending that it was a

clerical error and contended further that the omission doesn't waive

jurisdiction of the Court to entertain this matter.

 It is clear that the Applicants cited Order XXVII Rule 1 (a) of Civil

Procedure Code instead of Order XXXVII Rule 1 (a). Similarly, instead of

citing R.E 2019, they cited R.E 2022. However, it is not disputed that this

Court has power to determine the application for temporary orders under

Order XXXVII Rule 1(a) of the Civil Procedure Code, [CAP. 33 R.E 2019]

which provides that:

1. Where in any suit it is proved by affidavit or otherwise-

a) that any property in dispute in a suit is in danger of

being wasted, damaged, or alienated by any party to the

suit of or suffering loss of value by reason of its continued
use by any party to the suit, or wrongly sold in execution of
a decree; or

b) that the defendant threatens, or intends to remove or

dispose of his property with a view to defraud his creditors,

the Court may by order grant a temporary injunction to
restrain such act or make such other order for the purpose
of staying and preventing the wasting, damaging,
alienation, sale, loss in value, removal or disposition of the
property as the court thinks fit, until the disposal of the suit
or until further orders:

Provided that, an order granting a temporary injunction

shall not be made against the Government, but the court

may in lieu thereof make an order declaratory of the rights

of the parties.
 In such circumstance, this Court is inclined to uphold the principle

of overriding objective in rendering justice as enshrined under Article 107A

(2) of the Constitution of the United Republic of Tanzania of 1977 as

amended. This principle requires the Courts to have regard to substantive

justice without being unnecessarily tied up by technicalities. I am, in this

respect, mindful of Section 3A of the Civil Procedure Code [CAP. 33 R.E

2019]. It reads thus:

3A.-(1) The overriding objective of this Act shall be to

facilitate the just, expeditious, proportionate and affordable

resolution of civil disputes governed by this Act.

(2) The Court shall, in the exercise of its powers under this
Act or the interpretation ofany ofits provisions, seek to give
effect to the overriding objective specified in subsection (1).'

This position has been illustrated in various cases in our jurisdiction.

See the case of Hasira Mgeni vs. Kigoda Abas Kigoda; Misc. Land

Case Application No. 183 of 2019 (HCT) Land Division, Dar es Salaam;

Yakobo Magoiga Gichere vs. Peninah Yusuph, Civil Appeal No.55 of

2017, (CAT) and Elizabeth Balali vs. Deodata Elias, Misc. Land Case

Application No. 167 of 2020 (HCT) Land Division, Dar es Salaam. In

Elizabeth Balali, (supra) it was held that:

'...the issue of cited enabling provision section 38(1) of the

Land Dispute Act, Cap 2016, section 14 of the Law of
Limitation Act, Cap 89 and section 95 of the Civil Procedure

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 Code Cap 33 appears to be not fatal and can be cured under
overriding objective principle.'

For the reason stated above, I resist the invitation by the learned

State Attorney to struck out the application for want of proper citation of

enabling provision to move this Court to grant the application. It is my

considered view that the error of a wrong citation of enabling provision,

as is the case in this matter, is not fatal as this Court has jurisdiction to

determine the application. In the circumstances of the above, the second

preliminary objection is overruled

Consequently the two preliminary objections are hereby overruled

with no costs. The Applicants are allowed to insert the proper provision of

the law through handwritten form. It is so ordered.

Dated at Dodoma this 5th day of June, 2023