SALIMA VUAI FOUM v REGISTRAR OF COOPERATIVE SOCIETIES AND THREE OTHERS 1995 TLR 75 (CA)

 SALIMA VUAI FOUM v REGISTRAR OF COOPERATIVE SOCIETIES AND THREE OTHERS 1995 TLR 75 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Omar JJA, Ramadhani JJA & Lubuva JJA

CIVIL APPEAL NO. 36 OF 1994 F

November 28, 1994

(From the decision of the High Court of Zanzibar, Hamid, C.J.) G

Flynote

Civil Practice and Procedure - Affidavits - Affidavit lacking verification and not

disclosing source of deponent's knowledge and information - Whether valid.

-Headnote

The appellant filed a chamber application in the High Court of Zanzibar. At the H

hearing of the application the Respondents raised a preliminary objection regarding

the validity of the affidavit supporting the application. The objection was allowed, the

High Court holding that the affidavit was incompetent since it had no verification

and did not reveal the source of the deponent's information and knowledge of some

of the facts stated therein. The appellant appealed to the Court of Appeal. I

1995 TLR p76

LUBUVA JA

A Held:

(i) Where an affidavit is made on information, it should not be acted upon

by any court unless the sources of information are specified;

(ii) As nowhere in the affidavit, either as a whole or in any particular

paragraph, is it stated that the facts deposed to or any of them, and if so which ones,

are true to the deponent's knowledge, or as advised by his advocate, or are true to his

information and belief, the affidavit was defective and incompetent, and was properly

rejected by the Chief Justice. B

Case Infomation

Appeal dismissed

C Cases referred to:

(1) Mtale v. January Kapembwa [1976] LRT, n.7

(2) Standard Goods Incorporation Ltd v. Harakhchand Nathu and Company

[1950] 17 EACA 99.

D (3) Bombay Flour Mill v. Hunibhai M. Patel [1962] EA 803.

A. Patel, for the appellant

U.H. Khalfani, for the first respondent

Mbwezeleni, for the second, third and fourth and fourth respondents

[zJDz]Judgment

E Lubuva, J.A., delivered the following considered judgment of the court:

Before the High Court of Zanzibar, the appellant filed a chamber application seeking

to move the court to order the first respondent, the Registrar of F Co-operative

Societies in Zanzibar, to make available to the appellant the record of the 'Maendeleo

Stores' Co-operative Society. The appellant had been a member and the secretary of

the said Co-operative Society whose registration number was 55 of 1980. The

Chamber application, was supported by an affidavit which was sworn to by the

appellant as the applicant. G

In the course of hearing the Chamber application which was filed by Mr Ajar Patel,

learned counsel for the appellant, a preliminary objection was raised against the

validity of the appellant's affidavit by Mr Mbwezeleni, learned counsel for the H

second, third and fourth respondents supported by Mr Uhuru Hemed Khalfani

learned State Attorney for the first respondent, the Registrar of Co-operative

Societies. Upholding the objection, the learned Chief Justice of Zanzibar held the

appellant's affidavit as incompetent since it was without verification and did not

reveal the source of the deponent's information and knowledge I

1995 TLR p77

LUBUVA JA

of some of the facts stated in the affidavit. Consequently, the Chamber application

was dismissed. A

Dissatisfied with the order of the dismissal of the Chamber application, the appellant

has lodged this appeal. The memorandum of appeal filed by Mr A Patel learned

counsel for the appellant contains six grounds of appeal out of which we think one

essential point emerges. That is, that the learned Chief Justice erred in B holding

that the affidavit attached to the Chamber application was defective in law for not

disclosing the source of the deponent's information and for want of verification

clause. At the hearing of the appeal, Mr Uhuru Hemed Khalfani learned C State

Attorney for the first respondent took a preliminary objection that the appeal was

incompetent in that the requirement of Rule 90(1) of the Court of Appeal Rules, 1979

were not complied with. He had served the notice for the objection under Rule 100 of

the Court's Rules. It was Mr Khalfani's contention that D though the copies of the

memorandum of appeal were filed at the Court's Zanzibar sub-registry on 26 June

1994, the first respondent was served with the memorandum of appeal on 21

November 1994 which was not within the prescribed time under the Court's Rules.

He urged the court to dismiss the appeal. However, when it was brought to his

attention by Mr Patel, learned counsel, that E the application of Rule 90(1) is subject

to Rule 79 being complied with by the respondent to serve the appellant with his

(respondent) address after receiving the notice of appeal by the appellant, Mr

Khalfani learned State Attorney, withdrew the F preliminary objection. The appeal

was thus proceeded with on its merits.

For the appellant, Mr Ajar Patel, learned counsel, submitted that the learned Chief

Justice could not be faulted in his holding that the appellant's affidavit was

incompetent as it lacked verification and did not disclose the source of the deponent's

knowledge and information. However, he strongly criticized the learned G Chief

Justice for not exercising the discretion to require the depondent to amend the

affidavit so as to disclose the source of information. If we understood Mr Patel H

correctly, he was of the view that in the interest of justice the learned Chief Justice

should have exercised the discretion vested in him to order for the amendment of the

affidavit. Furthermore, it was Mr Patel's submission that as the respondents did not

file a counter affidavit to challenge the appellant's affidavit, it was an admission on

the part of the respondents of the truthfulness of what was stated in the appellant's

affidavit. For this proposition Mr I

1995 TLR p78

LUBUVA JA

A Patel, learned counsel, did not have any specific authority on the point but had

vague recollection of this court's decision in some case in the Mwanza Registry.

For the second, third and fourth respondents and on behalf of Mr Khalfani for the

first respondent, Mr Mbwezeleni made brief but pertinent submissions. First, Mr B

Mbwezeleni contended that as a matter of law, the learned Chief Justice properly

rejected the affidavit of the appellant which was incompetent due to lack of

verification and the non-specification of the source of information by the deponent.

Mr Mbwezeleni referred us to the case of Mtale v January Kapembwa (1). C

Secondly, Mr Mbwezeleni submitted that as the affidavit was incompetent, the

appellant was not bound to react to it and that that could not be taken as an admission

of truth in what was stated in the affidavit of the appellant. He urged the court to

dismiss the appeal.

D As rightly pointed out by Mr Mbwezeleni, learned counsel for the appellants, we

think the only issue for consideration in this appeal is the validity of the affidavit

deponed by the appellant. From the record as well as the submission of both counsel,

it is an undisputed fact that the appellant's affidavit which was an essential part of the

appellant's application before the learned Chief Justice had E neither the verification

clause nor did it specify the source of the information deponed by the appellant. To

our minds, the legal position regarding affidavits which are without verification or

specification of source of information is crystal clear. From case law, numerous cases

have been decided by this court and the Court of Appeal for Eastern Africa on this

point. F

The principle is that where an affidavit is made on an information, it should not be

acted upon by any court unless the sources of the information are specified. This was

reiterated by the Court of Appeal for Eastern Africa in the case of Standard G Goods

Incorporation Ltd v Harakhchand Nathu & Co (2). Again, in the case of Bombay Flour

Mill v Hunibhai M Patel (3), it was held that as the affidavit did not state the

deponent's means of knowledge or his source's of information and belief, the affidavit

was defective and incompetent, the application based on the affidavit was dismissed.

Likewise, in the case of Mtale v January Kapembwa (1), which H was cited by Mr

Mbwezeleni, the High Court of Tanzania correctly in our view, applied the above

principle.

Applying this principle to the instant case, we have no hesitation in agreeing with Mr

Mbwezeleni, learned counsel for the appellant, that the affidavit in question being

defective and in- I

1995 TLR p79

LUBUVA JA

competent was properly rejected by the learned Chief Justice of Zanzibar. As A

already indicated, affidavits and what matters which affidavits should be confined are

governed by law. In that case, even if we were to accept Mr Patel's submission that

the respondents' failure to counter the appellant's affidavit amounted to acceptance of

the truthfulness of what the appellant had stated in the affidavit, still we are with

respect, unable to appreciate how that would validate such clear and B unambiguous

legal requirement in an affidavit. Furthermore, as Mr Patel correctly conceded, it

being a matter of discretion for the court to require the appellant (applicant) to

amend the affidavit so as to specify the sources of information deposed to, we can

hardly fault the learned Chief Justice for exercising C the discretion in the way it

was done. We cannot by any stretch of imagination say that the exercise of the

discretion was done wrongly. On the whole, we are satisfied that in the appellant's

affidavit it is nowhere stated, in respect of the D affidavit as a whole or of any

paragraph or allegation in it, that the facts deposed to, or any and if so which of them,

are true to the deponent's knowledge, or as advised by his advocate, or are true to the

best of his information and belief. For that reason, we are with respect, in agreement

with Mr Mbwezeleni, learned E counsel for the appellant that the affidavit being

defective and incompetent was properly rejected. We are thus of the settled view that

the learned Chief Justice was entitled to dismiss the application which was based on

the strength of the affidavit.

Accordingly, we dismiss the appeal with costs. F

1995 TLR p80

A