Court name
Court of Appeal of Tanzania

Hamed Rashid Hamed vs Mwanasheria Mkuu & Others () [1996] TZCA 7 (30 December 1996);

Law report citations
1997 TLR 35 (TZCA)
Media neutral citation
[1996] TZCA 7
Coram
Kisanga, J.A.

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

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

  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