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Court strikes out application for being gravely defective
2007-08-20 08:43:42
By Haji Mbaruku
The Court of Appeal of Tanzania sitting in Mwanza has struck out with costs an application by Zuberi Mussa against respondent Shinyanga Town Council for review of its own decision on grounds that the supportive affidavit was incurably defective.
The ruling was made by the Court of Appeal panel comprising of Justices Damian Lubuva, John Mrosso and E.M.Rutakangwa.
The present application by a notice of motion was filed on July 14th, 2004 pursuant to the leave granted to the applicant by the court on July 4th, 2004.
The court struck out his original application determined on November 16th, 2001.
The decision was prompted by a preliminary objection raised by Advocate Muna for the respondent who contended that the affidavit filed in support of the notice of motion was bad in law because it contained a jurat of attestation which was incurably defective.
In their ruling the learned Justices concurred the applicant\'s affidavit in support of the application was incurably defective as it did not specify the place and date as well as state where and on which date the oath /affidavit was taken or made.
They said the omission was a serious one as it was clearly contrary to the mandatory provisions of section 8 of the Notaries Public and Commissioner for Oaths Act, Cap.12, Revised Laws, Edition 2002.
Section 8 of the Act states that: `Every Notary Public and Commissioner for Oath before whom any oath or affidavit is taken or made under this ordinance shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made.`
The panel observed that since the provision was implied in mandatory terms, the Commissioner for Oaths could not arbitrarily opt out of the statutory obligation to state the place where and on which date the affidavit was made.
`There is no gainsaying that the jurat of attestation is an essential ingredient of any affidavit. In a plethora of cases, this court has held that an affidavit will be held to be incurably defective if in the jurat of attestation the place where the affidavit was made is not shown,` the court held.
Citing Kainami`s case, the court stated: `Unfortunately, for the applicant, the courts in this country do not have the kind of leeway courts in England have. The requirement in this country that the place where the oath is made or affidavit taken has to be shown in the jurat of attestation is statutory and must be complied with,` the Justices said.
The Court observed that with the current state of both statutory and case law the time was not ripe for making a u-turn on the issue as the law was already firmly settled.
`We shall need strong, cogent and what we would call irrefragable (iron-willed) reasons to convince us to hold otherwise. Such reasons are patently wanting here,` the Justices said.
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