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Affidavit that does not show where oath was taken is incurably defective
2007-08-27 08:19:02
By Keregero Keregero
It is a general rule that evidence in a trial ought to be orally given. That is to say witnesses must appear before the Court which is seized of the matter and testify before it to the matters material to the suit in question.
However, where sufficient reason is shown, the court may at any time depart from orality and order that any particular fact or facts should be proved by affidavit or that the affidavit of any witness should be read at the hearing on conditions the court thinks reasonable.
An affidavit is a written statement containing matters which the deponent knows or believes to be true and which statement has been made on oath or affirmation.
Where an affidavit is produced at the hearing of a suit it becomes a substitute for the oral evidence of such deponent. An affidavit is therefore essential.
But in order for an affidavit to be legally valid it must comply with rules that govern its application, one of which is the requirement that it must contain a jurat of attestation which shows at what place and on what date the oath or affidavit is taken or made.
But suppose an affidavit filed in support of, say a notice of motion, contains a jurat of attestation that is silent over the place and date the affidavit was made, what would be the legal effect?
In legal parlance such affidavit filed in support of the notice of motion would be declared bad in law in that it contains a jurat of attestation which is incurably defective.
It is defecttive in as much as it is not shown in the jurat of attestation the place where and the date on which the affidavit or oath was made or taken.
Under the mandatory provisions of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap.12 Revised Laws, Edition 2002, the affidavit ought to contain a jurat of attestation that shows the place where and the date on which the affidavit or oath was made or taken.
Section 8 of the Act reads as follows:`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.`
Under this provision couched in mandatory terms as it is, the Commissioner for Oaths cannot with impunity opt out of the statutory obligation to state in the jurat the place where the affidavit was made.
The failure to comply with this mandatory requirement of the law renders the affidavit incurably defective and application(s) of notice of motion held to be incompetent and, accordingly, struck out by the court.
A similar position of the law was recently stated in Zuberi Mussa v.Shinyanga Town Council, Civil.
Application No.100 OF 2004, (unreported). In that case the Court of Appeal ( Justices Damian Libuva, John Mroso and Rutakangwa) held:`The important point to be observed here is that the affidavits being contemplated here are those made in strict compliance with the provisions of s.8 of the Act before a Commissioner for Oaths.
Such affidavits are even recognised in the Constitution in Article151(1).
There is no gainsaying that the jurat of attestation is an essential ingredient of any affidavit.
What the jurat should contain is conspicuously spelt out in S.8 of the Act........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.
We wish to emphasize here that this is not a mere incantation of lawyers. This is now settled law as reflected in the decisions of the Court...`
In the case of D.B.Shapriya and Company Ltd.v. Bish International B.V, Civil Application No.53 of 2002(unreported) the Court was of a firm opinion that the need to show in the jurat the place where the oath was taken was indispensable, and this cannot be substituted by the name of the place in the advocate`s rubber stamp. `After all such rubber stamp is never part of the jurat of attestation`, the Court observed.
A similar view was also expressed in Theobald Kainami v.The G.M.K.C.U.(1990) Ltd.
In that case the Court, in no terms of incertitude, held as follows:`Unfortunately for the applicant the courts in this country do not have the kind of leeway the 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` Thus, the affidavit which had only the rubber stamp of the advocate and the place where it was taken missing in the jurat was held to be incurably defective and the application was struck out.
And, in the case of Ashura Abdulkadiri v.The Director,Tilapia Hotel, MZA, Civil Application No.2 of 2005 the Court struck out the notice of motion for same reasons.
Asserting with a note of finality the Court of Appeal is unhesistatingly of the view that the principle laid down in the cases cited to the effect that the requirement in this country that the place where and the date when an oath or affidavit is taken or made must be shown in the jurat of attestation is a statutory one which must be complied with and not a dispensable technical requirement.
Such a principle is now deeply rooted in our jurisprudence.
`Every affidavit, therefore, which does not conform with the statutory requirements of s.8 of the Act shall be treated as incurably defective until such time when the Courts will be given a statutory leeway, as the courts in England, to hold otherwise`,the Court of Appeal held in the case of Zuberi Mussa cited above.
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