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Affidavit-Proper Guidelines-Verification Clause & Jurat-Identifying & Knowing Personally-Source of Information-KIM
Affidavit-Proper Guidelines-Verification Clause & Jurat-Identifying & Knowing Personally-Source of Information-KIM
ATTANGA
(Application for Review from the Decision of the Court of Appeal of Tanzania at
Tanga)
(Rutakangwa, l.A., Kimaro, l.A., And Mandia, l.A)
the District Court of Lushoto at Lushoto with the offence of armed robbery
years imprisonment with twelve strokes of the cane. Besides, he was ordered.
to pay TZS. 800,000.00 as compensation to the victim of the crime. His first
appeal against the aforesaid conviction and sentence was dismissed by the
High Court sitting at Tanga. He was also unsuccessful in his further appeal,
which this Court dismissed in its entirety in its judgment dated 9th July 2012.
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Undeterred, the applicant lodged this application under rule 66 (1) (a), (b)
and (c) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") seeking
applicant's affidavit made on 14th August 2012, in terms of rule 48 (1) of the
Rules.
notice under rule 4 (2) (a) of the Rules.The said objection was:
R.E. 2002J//
the account that its jurat of attestation contains no statement of the place at
which the affidavit was made. The omitted statement, she said, was a
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With leave of the Court, Ms. Msalangi further attacked the supporting
affidavit on the ground that its verification clause does not contain a specific
affidavit be struck out along with the notice of motion whose legal existence
her argument, Ms. Msalangi relied upon two unreported decisions of this
2005. She placed further reliance upon Wananchi Marine Products (T)
the learned State Attorney but cast the blame to the prison authorities who
drew up the said affidavit and arranged for its attestation before a Resident
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indulgence, saying that he ought not be censured for an error he did not
commit himself.
VERIFICATION
I the applicant in the name of Jamal Msitiri do solemnly and
sincerely declare that the above information of application
for review of judgment is mine. And that I the applicant
make this declaration conscientiously believing the same to
be true and in accordance with the provisions of the Oaths
and Statutory Declarations Ace Cap. 34 RE 2002.
(Thumbprint)
CONV. NO. 687'2008 JAMAL MSITIRI -
APPLICANT
CERTIFICA TION
This declaration is made and subscribed by the application
(sic!) himself who has been identified to me by the Officer in
Charge, Maweni Central Prison the latter being known to be
personally this 4h day of September the year 2012.
Before me: M. Nason
Qualification: RM
Address: 97, Tanga.
(sgd and rubber stamp affixed)
COMMISSIONER FOR OATHS"
The discernible question before us is whether the affidavit as
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"The essential ingredients of any valid affidavit, therefore/
deponent;
before what authority the affidavit was made. In that respect, section 8 of
[Emphasis added]
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We would also wish to underscore that section 10 of the Oaths and
specifically directs that the Commissioner for Oaths must indicate in the
before him must have been identified to him by a person known to him
personally.
facts the deponent asserts to be true of his own knowledge and/or those
of the facts deposed in the affidavit. It is legally accepted practice that the
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signature of the deponent against the jurat, renders the
The same position was taken, for example, in D.P. Shapriya & Co.
Windrose Safari (T) Limited, and Two Others v Biduga And Company
Limited and Another, Civil Appeal No. 39 Of 2000 (unreported) and Paul
(unreported).
the deposed facts whether they are true of the deponent's own knowledge
and or they are based on information or beliefs. [See, for example, Paul
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Magistrate) signed the affidavit on 4th September 2012, the place at which he
did so is evidently omitted. That is not all. The deponent, who was supposed
to have appended his signature before the attesting officer, did not do so.
Secondly, the affidavit is also anomalous that the name of the person who
omitted. We have no doubt that the identification of that person only by his
deposed in the affidavit as to whether they were true of the deponent's own
believed to be true.
At this point, we find it necessary to recall that the applicant prayed for
the indulgence of the Court, saying that he ought not be censured for the
defects in the affidavit, because it was the creation of the prison authorities, '
not him. He may have had the temerity to disclaim authorship of that
document, but it remains undoubted that the prison authorities acted for and
on his behalf. We would, then, simply say on his plea that the law governing
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affidavits, as we have summarized earlier, leaves no room for concessions or
any supporting affidavit required by rule 48 (1) of the Rules, the notice of
struck out.
B.M. LUANDA
JUSTICE OF APPEAL
R.E.5. MZIRAY
JUSTICE OF APPEAL
G.A.M. NDIKA
JUSTICE OF APPEAL
.~~--- ...•.
~~GISTRAR
ct)URT OF APPEAL
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