Civil Reference No. 7 of 2004
The applicant, Commissioner General (TRA), filed a Notice of Motion under Rule 51(1) and (2) of the Tanzania Court of Appeal Rules, 2009, seeking extension of time to apply for review of the Court's decision dated 9th May 2016 in Civil Appeal No. 146 of 2015. The Notice of Motion was supported by an affidavit affirmed by Juma Salim Beleko, a Principal Officer of the applicant. The respondent, Pan African Energy (T) Limited, filed a notice of preliminary objection raising two points: (1) that the application contravened Rule 48(2) of the Rules and Form A in the First Schedule, and was vague; and (2) that the supporting affidavit was not attested according to law. During the hearing, the Court itself raised a further point suo motu: the jurat of attestation on the supporting affidavit did not indicate whether the deponent was known personally to the attesting officer or was identified to him by another person known to him.
The central issue determined by the Court was whether an affidavit that fails to indicate, in its jurat of attestation, whether the deponent was known personally to the attesting officer or was identified to him by another person known to the officer, is fatally defective so as to render the application incompetent. A subsidiary issue was whether Article 107A(2)(e) of the Constitution of the United Republic of Tanzania could be invoked to overlook this defect and allow the application to be heard on its merits.
For the respondent, Mr. Ishengoma argued that a supporting affidavit must indicate either that the deponent was known personally to the attesting officer or was identified to him by a person known to the officer, with that person's name recorded, relying on the case of Anne Kilango Malecela (full citation not provided). He submitted that the present affidavit was silent on this requirement and was therefore fatally defective. For the applicant, Mr. Malata argued that attestation is governed by section 8 of the Oaths and Statutory Declarations Act, Cap. 34, which requires only that the jurat show the deponent's name, the place and date of oath, and the attesting officer's name — all of which were present. He conceded the affidavit in the Court's record was silent on whether the deponent was known personally or identified, but contended that a separate copy in his file showed the phrase "identified by" slashed, indicating personal knowledge, and argued that identification details need only be stated where the deponent is not personally known. Alternatively, he urged the Court to invoke Article 107A(2)(e) of the Constitution to overlook the technicality and determine the application on its merits.
The Court held that the affidavit in support of the Notice of Motion was fatally defective because it failed to indicate, as mandatorily required by section 10 of the Oaths and Statutory Declarations Act, Cap. 34 R.E. 2002, and the prescribed form in the Schedule thereto, whether the deponent was known personally to the attesting officer or was identified to him by a person known to him. Relying on precedents including Director of Public Prosecutions v. Dodoli Kapufi and Jamal Msitiri @ Chaijaba v. Republic, the Court affirmed that this requirement is couched in mandatory terms and its non-compliance is fatal, rendering the affidavit invalid. Since Rule 48(1) of the Rules requires a notice of motion to be supported by a valid affidavit, the application was rendered incompetent. The Court rejected the invitation to invoke Article 107A(2)(e) of the Constitution to cure the defect, citing Zuberi Mussa v. Shinyanga Town Council and China Henan International Cooperation Group v. Salvand K.A. Rwegasira, holding that this constitutional provision is a guideline for courts and does not abolish salutary procedural rules that facilitate the administration of justice. Having found the affidavit fatally defective, the Court declined to consider the two points of preliminary objection raised by the respondent, and struck out the application, with each party bearing its own costs.
This ruling reinforces the strict and mandatory nature of the attestation requirements under section 10 of the Oaths and Statutory Declarations Act, Cap. 34, particularly the necessity for a jurat to state whether the deponent is personally known to the attesting officer or was identified by someone known to the officer. It confirms that failure to comply with this requirement renders an affidavit invalid regardless of compliance with other formal requirements such as name, date, and place. The ruling also clarifies the limited scope of Article 107A(2)(e) of the Constitution, affirming that it does not override mandatory procedural rules but merely guides courts in the fair administration of justice, consistent with prior Court of Appeal authority. Practically, the decision underscores the importance for litigants and legal practitioners to meticulously verify that affidavits filed in court comply with prescribed statutory forms, as the Court will decide based on the record before it rather than documents held privately by parties.
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