HAMED RASHID HAMED v MWANASHERIA MKUU AND OTHERS 1997 TLR 35 (CA) A

HAMED RASHID HAMED v MWANASHERIA MKUU AND OTHERS 1997 TLR 35 (CA) A

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA B

ZNZ CIVIL APPLICATION 9 OF 1996

30 December 1996

Flynote

Appeal - Application to lodge memorandum of appeal out of time - Requirements. C

-Headnote

The applicant applied for leave to lodge a memorandum of appeal out of time.

Counsel for the fourth respondent noted preliminary objections to the application,

contending that (1) the application had not been initiated by a Notice of Motion as

required by Rule 45 of the Court of Appeal Rules, but by a document titled D

`Application for Leave to Appeal Out Of Time'; (2) the affidavit in support of the

application was defective in that the deponent had not stated his name and religion

before making the statement but had merely affirmed at the end thereof that what E

he had stated above was true to the best of his knowledge and belief; and (3) that the

deponent had failed to disclose the source of his information when he said that he

``was made to believe that the last day for lodging the appeal was 7 October 1996''.

Held:

(i) That non-compliance with the Rule was not fatal: the irregularity F

was not one of substance but was one which could be cured by the Court granting an

amendment;

(ii) That non-compliance with the practice of making the oath or

affirmation at the commencement of an affdavit was not fatal: the deviation was not

an irregularity which went to the substance; G

(iii) That it was clear that if the deponent's affidavit was read properly it did

not give the impression that he had been led to believe by someone else that the last

day for lodging the appeal was 7 October 1996. His mistaken impression was formed

after his own independent study and understanding of the court proceedings. There

was accordingly no ground for requiring him to disclose the source of his belief. H

Case Information

Preliminary objections dismissed.

Cases referred to:

1. Msoza Transport Ltd v Nzareki Investment Co Ltd Civil Application No

16 of 1992 (unreported) I

1997 TLR p36

KISANGA JA

A 2. George Shambwe v Attorney General and Anor [1996] TLR 334

Tenga and U K Haji, for the applicant.

Muccadam and Mulamula, for the fourth respondent.

[zJDz]Judgment

Kisanga, JA:

B This is a preliminary objection taken to an application for leave to lodge the

memorandum of appeal out of time. The objection is raised by Mr Muccadam and Mr

Mulamula, learned advocates, who represent the fourth respondent, while the

applicant whose application is being objected to is advocated for by Dr Tenga and Mr

Ussi Khamis Haji. C

The preliminary objection alleges that the application is basically defective. To start

with, the allegation says, the application was not initiated by a Notice of Motion as is

required by Rule 45 of the Court of Appeal Rules. Instead it was commenced by a

document merely titled `Application for Leave to Appeal Out of Time'. Dr Tenga D

conceded that there was no strict compliance with Rule 45 of the Court of Appeal

Rules, but rightly contended that this non-compliance was not fatal. For, the

substance of the application is quite clear. The irregularity is not one of substance; it is

one which is curable by the court granting an application for an appropriate

amendment. That ground of objection, therefore, fails. E

The next assertion was that the affidavit in support of the application was defective.

The affidavit did not take the usual format whereby the deponent, inter alia, states his

name and religion, and makes oath or affirmation before making the statement.

Instead the deponent made the affirmation at the end of his statement to the

following effect: F

`I, ... do hereby affirm that what is stated above is true to the best of my

knowledge and belief.' G

Dr Tenga rightly pointed out that there is no provision under the Court of Appeal

Rules requiring a deponent to make the oath or affirmation at the beginning instead

of at the end of his deposition. He conceded that the usual practice in the Court of H

Appeal is for a deponent to make oath or affirmation before making the statement,

but submitted that non-compliance with this practice was not fatal. I entirely agree.

For, the whole purpose of requiring a deponent of an affidavit to make oath or

affirmation is to make such a deponent commit himself to tell the truth. While the

practice in this court has been to require the deponent to undertake such

commitment before I

1997 TLR p37

KISANGA JA

making his statement, I am strongly of the view that the deviation by the deponent

A in this case is only an irregularity which did not go to the substance. Because the

commitment to be truthful remains the same whether it is made before or after

making the statement. The position would have been different, however, if no such

commitment was undertaken at all in which case the deposition would not constitute

an affidavit. The objection on this ground, therefore, also fails. B

Finally objection was taken that the deponent failed to disclose his source of

information when in paragraph 6 of the affidavit he said, inter alia, that: C

`... I was made to believe that the last day for lodging the appeal was 7th

October, 1996.'

Mr Muccadam insisted that the deponent was duty bound to disclose the person who

made him believe that the last day for lodging the appeal was 7 October 1996, D and

that failure to do so entitled this court to strike out the application. In support of this

submission counsel cited the case of Msoza Transport Ltd v Nzareki Investment Co

Ltd (1).

Mr Muccadam's submission on this point has its roots in para 6 of the affidavit but E

it seems necessary to consider that paragraph together with para 7. The two

paragraphs allege:

`6. THAT due to my wrong calculation of the time for the lodging of the

memorandum of appeal as provided by Rule 83 of the Tanzania Court of Appeal

Rules, 1979 I was made to believe that the last day for lodging the appeal was 7th

October, 1996. F

7. THAT this mistake was done by me alone and is not in any way

connected with the Applicant and that I beg that it should be treated as human error.'

G

If the two paragraphs are read together, they do not, in my view, give the impression

that the deponent was made to believe by someone else that the last day for lodging

the appeal was 7 October 1996. To my mind they give the impression that the mistake

in attributable to the deponent alone who H misconstrued or misinterpreted the

court proceedings and came to the erroneous view as to the last day for lodging the

appeal. In other words the deponent's belief that the last day for lodging the

memorandum of appeal was 7 October 1996 was formed following his own study and

understanding of the court proceedings which were duly supplied to him by the court

registry. Nobody could have given him any relevant information on this I

1997 TLR p38

KISANGA JA

A point other than that as was contained in the court proceedings. If this view is

correct, then there could be no ground for requiring the deponent to disclose the

source of his belief which is based on his own study and understanding of the

documents which, it has not been disputed, were duly supplied to him by the court

registry.

B Dr Tenga went on to submit that even if it is found in Mr Muccadam's favour

that the deponent did fail to disclose the source of his belief, that alone would not

justify the striking out of the application. In his view it would be open to this court to

order an amendment of the affidavit or the filing of a supplementary affidavit to

rectify the error, and in this connection he referred me to the decision of this court

C in the case of George Shambwe v Attorney-General and Another (2). I must state

at once that Shambwe's case has no relevance to the present case in as much as it is

concerned with what the High Court should have done in a matter which was before

it, and in which the provisions of the Civil Procedure Code D applied. The matter

before me is an application for leave to lodge the memorandum of appeal out of time.

Such a matter was never, and could not be, before the High Court. It is a matter

which is governed not by the provisions of the Civil Procedure Code but by the

Appellate Jurisdiction Act and the Court of Appeal E Rules. In other words what

was said in Shambwe's case where the provisions of the Civil Procedure Code applied

can have no relevance whatsoever to the present case which is governed by a

different set of rules, and where the provisions of that Code do not apply.

F Having said that, and in the light of the view I have taken of the matter, I desire

not to dwell any more on this point. That is to say, after holding that there was no

basis for requiring the deponent to disclose the source of his belief as to the last date

for lodging the memorandum of appeal, it is now not necessary for me to rule on Dr

Tenga's submission that it is open to me to allow an amendment to the G affidavit or

the filing of a supplementary affidavit to rectify the error.

In the final analysis, therefore, the preliminary objection fails and it is dismissed with

costs. I grant Dr Tenga's application for the amendment of the application so H as

to include in the title the words Notice of Motion. Unless a reference from this ruling

to the full court is contemplated, I direct that the application now proceeds to

hearing. I

1997 TLR p39