Law of Affidavit Tanzania cases


With this compilation of affidavit cases in Tanzania, you will learn the meaning of affidavit, the Form, and requirements of an affidavit, effects of filling defective agreement, etc.

Meaning of Affidavit

an affidavit is a sworn statement in writing, made especially under oath, or affirmation before an authorized Magistrate or Officer.”

Misc. Civil Application No. 15/97 – OTTU vs AG and others. HC at Dar. (Katiti, J).

“ The expression, “affidavit”, unfortunately despite its being a lawyer’s everyday tool, is not defined by any statute, I could lay my hands on. But the lexicon meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath, or affirmation before an authorized Magistrate or Officer.”

Civil Application No.40/98 – Mustapha Raphael vs East African Gold Mines Ltd, CAT at Dar

“ An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matters such as hearsay, legal arguments, objections, prayers, and conclusions.

See the case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.

See also: chamber summons supported by affidavit sample

How to contradict the contents of Counter-affidavit

Civil Case No. 8/96 – Inspector Saiki and others vs Gerald Nkya. CAT at Dar 

The proper way to contradict the contents of the counter-affidavit of the respondent was not by making statements from the bar but was by filing a reply to the counter–affidavit”.

Tanzania Breweries Ltd vs Edson Dhobe and 18 others, Civil Application No.95/03 CAT at Dar. 

The proper way to contradict the contents of the counter-affidavit ….was by filing a reply to the counter-affidavit”. See also Civil Application No. 8/96.

Contents of affidavit

Dar Education and Office Stationery vs NBC Holding Corporation and others Civil Application No. 39/99 CAT at Dar. –

An objection that the affidavit contains arguments instead of facts and also contain prayers (Quotes Uganda vs Commissioner of Prisons Ex- parte Matovu [1966] EA 516

If that is the case, could it in the name of justice, be said that advancing arguments in an affidavit is so offensive as to cause an application to be struck out and thereby deny this final Court of justice an opportunity to determine the matter on merits?

Forms and procedures are handmaids of justice and should not be used to defeat justice( per Biron J in General Marketing Co Ltd vs A. A Sharrif[1980]TLR 61 at 65. -I hold the same view concerning prayers contained in the affidavit. Prayers have to be made in court at the hearing otherwise there is no point in making the application. So making them prematurely in an affidavit should not be a reason for avoiding the determination of the application. -Sworn and affirmed – does not make a difference.

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Mustapha Raphael vs East African Gold Mines Ltd, Civil Application No.40/98 CAT at Dar.

An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matters such as hearsay, legal arguments, objections, prayers, and conclusions. See the case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.

D.T.Dobie (T) Ltd vs Phantom Modern Transport (1985) Ltd. Civil Application No. 141/01, CAT at Dar.

As stated in Matovu’s case, an affidavit should state facts, and facts in my view, do not include controverted evidence in a suit.” The Court has the power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case.’

Unyangala Enterprises Ltd 75 Others Vs Stanbic Bank (T) Ltd CAT, Civil Application No. 56 /04 at Dar (Ramadhani, JA)

Mr. Lugano JU. Mwandambo, a learned advocate for the respondent, filed a counter-affidavit. He had two main attacks: One, Mr. Mwandambo pointed out that the affidavit in support of the application was largely hearsay

The learned advocate elaborated that three people have been named in the affidavit but they have not filed an affidavit and that this is contrary to Kighoma Ali Malima vs. Abas Yusuf Mwingamo, Civil Application No. 5 of 1987 (unreported) and John Chuwa Vs. Anthony Ciza [1992] T.L.R.233

The second matter is that the South Law Chambers has other advocates besides Mr. Kasikila and Mr. Mwandambo who wondered why those others could not attend. Mr. Kasikila gave some explanation as to the effect that the absence of the advocates in their chambers but that should not detain me here.

As for the affidavits of the three people, Mr. Kasikila admitted that he was not aware of those decisions. It is a matter of great pity that Mr. Kasikila did not know of the requirement of filing affidavits of all persons whose evidence is material to the matter in dispute.

His affidavit contains a lot of hearsay evidence and, so it cannot be relied upon. But even if I were to accept as Gospel trust what Mr. Kasikila said about the unavailability of other partners in their Chambers, one wonders why their clerk did not come to give the explanation to the Court instead of relying on the applicant himself. For the above reasons I find that the application is devoid of any merit and I dismiss it with costs

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Form and requirements of an affidavit

Tanzania Breweries Ltd vs Robert Chacha (Number not seen), (No. 10/99?) HC at Dar (Katiti, J)..-

Jurat attestation undated contrary to section 8 of the Notaries Public and Commissioners for Oaths, Cap. 12. See also Civil Case No. 208/00. – Drawer never endorsed his name on the document he drew – contrary to section 44 of the Advocates Ordinance, Cap. 341. – Such a document is not an affidavit at all, not even approximately in law.

Teekay Ltd vs NHC. HC Land Case No. 7/2004 (Land Division) at Dar (Longway, J). –

Affidavit – the jurat does not state the person who identified the deponent to the Commissioner for Oaths and whether the Commissioner for Oaths had personal knowledge of the identifier. I see however that the flow is not fatal and I agree with the respondent’s counsel that the same is rectifiable. Accordingly, I agree that the objection is valid and that the application is struck out with leave to file it within 14 days.

Zanzibar Hotel Ltd vs Costa Bujara. Civil Case No. 208/00 HC at Dar.

Jurat must show/state what place and on what date the oath or affidavit is taken – S. 8 Cap. 12- Notaries Public and Commissioner for Oaths Ordinance. See also Tanzania Breweries Case, No (f) above.

Rubber Stamp cannot salvage this situation Affidavit should not contain prayers – see Order XIX Rule 3(I) of the CPC, 1966.

Benedict Kimwaga vs Principal Secretary, Ministry of Health. Civil Application No. 31/00 CA at Dar.

“ If an affidavit mentions another person, then that other person has to swear an affidavit. However, I would add that that is so where the information of that other person is material evidence because without the other affidavit it would be hearsay. Where the information is unnecessary, as is the case here, or where it can be expunged, then there is no need to have the other affidavit or affidavits.” See also Civil Application No. 13/02.

DDL E. International ltd vs THA and others Civil Application No. 8/01, CAT at Dar 

The applicant’s affidavit is defective because of the errors in the verification clause. The question is whether such defect was fatal thereby warranting the dismissal of the application or whether the court has the discretion to grant leave sought to amend the affidavit and thus cure the defect.

After quoting Salima Vuai’, The University of Dar vs Mwenge Luboil Ltd ) ……If the court has such discretion concerning an affidavit that is in law incompetent for lacking a verification clause, a fortiori it has discretion concerning an affidavit which, as in the present case, contains a verification clause but is defective merely because of errors in the said verification clause.”

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Ignazio Messina vs Willow Investments SPRL Civil application No. 21/01, CAT at Dar.

An affidavit that is tainted with untruth is no affidavit at all and cannot be relied upon to support an application. – “ The rules governing the form of affidavits cannot be deliberately flouted in the hope that the court can always pick the seed from the chaff, but that would be an abuse of the court process. The only assistance the Court can give in such a situation is to strike out the affidavit.”

Kubach & Saybrook Ltd vs Hasham Kassam & Sons Ltd [1972] HCD 228 HCat Dar.

A court will not act upon an affidavit that does not distinguish between matters stated on information and belief and matters deposed to from the deponent’s own knowledge or as regards the former which does not set out the deponent’s means of knowledge of his grounds or belief.

Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA514 at 520

“….The Affidavit sworn to by the counsel is also defective. It is clearly bad in law. Again as a rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain elements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Such an affidavit must not contain an extraneous matter by way of objection or prayer or legal arguments or conclusions. The Affidavit should have been struck out.”

Effect of filling defective affidavit

Omari Ally Omary vs. Idd Mohamed and others Civil Revision No. 90/03,HC at Dar (Massati J)-

From the authorities contained in the decision of the court of appeal in Lalago Cotton Ginnery and Oil mills Company Limited Vs. LART (Civil Application No. 8 of 2003) Phantom Modern Transport (1985) LTD. V.D.T. Dobie (TANZANIA) LTD. Civil Reference No. 15 2001 and 3 of 2002, and MANORLAL AGGARWAL Vs. TANGANYIKA LAND AGENCY LTD. & OTHERS Civil Reference No. 11 of 1999 the position of the law can safely be summarized as follows:

As a general rule, a defective affidavit should not be acted upon by a court of law, but in appropriate cases, where the defects are minor, the courts can order an amendment by way of filing a fresh affidavit or by striking out the affidavit. But if the defects are of a substantial or substantive nature, no amendment should be allowed as they are a nullity, and there can be no amendment to nothing.

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Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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