IN THE COURTOFAPPEALOFTANZANIA

AT ARUSHA

(CORAM: lUMA, Ag. Cl, MBAROUK,l.A. And MWANGESI, l.A.)

CRIMINAL APPLICATION NO.1 OF 2011

DARUSI GIDAHOSI ..•..•••..................•.....•............• APPLICANTVERSUS

THE REPUBLIC ..•......•........................................ RESPONDENT

(Application for Review of Sentence from the decision of theCourt of Appeal of Tanzania at Arusha)

(Msoffe, Mjasiri, And Massati, lll.A.)

dated the 11thday of October, 2011

in

Criminal Appeal No. 298 of 2008

RULING OF THE COURT

31StJuly & 4th August, 2017

MBAROUK, l.A.:

By way of notice of motion made under Rule 66(1) (a)

of the Court of Appeal Rules, 2009 (the Rules), the applicant,

Darusi Gidahosi lodged his application seeking for the orders

of this Court to Review its decision in Criminal Appeal No. 298

of 2008 (Msoffe, J.A., Mjasiri, J.A. And Massati, J.A.) dated

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13th October, 2011. In support of the notice of motion, there

was an affidavit of Darusi Gidahosiannexed thereto.

When the application was called on for hearing, it

transpired that the respondent / Republic had earlier on 25th

February, 2017 filed a notice of preliminary objection based

on the following points of law:-

1. That, the application is bad in law for violation of Rule

66(1) of the Court of Appeal Rules, 2009.

2. That, the affidavit of DARUSIGIDAHOSI in support of

the application is incurably defective for contravening

section 8 of the Notaries Public and Commissioner for

Oaths Act [Cap. 12 R.E. 2002].

In this application, the applicant appeared in person,

unrepresented, whereas Mr. Marteneus Marandu, learned

Senior State Attorney appeared for the respondent /

Republic.

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As per the practice of this Court, we started to allow Mr.

Marandu to argue his preliminary objection first before

proceeding to hear the substantive application. Mr. Marandu

started by abandoning his 1st preliminary point of objection

after having noted that it was not worth being a pure point of

law to be argued as a preliminary objection.

As to his 2nd preliminary point of objection, the learned

Senior State Attorney submitted that the affidavit in support

of the notice of motion is defective as it has contravened

section 8 of the Notaries Public and Commissioner for Oaths

Act [Cap. 12. R.E. 2002]. In support of his argument he cited

to us the decision of this Court in the case of Jamal Msitiri

@ Chaijaba v. Republic, Criminal Application NO.1 of 2012

and Paul Makaranga v. Republic, Criminal Application No.

3 of 2010 (both unreported).

The learned Senior State Attorney further submitted

that in the case of Jamal Msitiri (supra) where the case of

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DPP v. Dodoli Kapufi and Pastor Tusalile, Criminal

Appeal No. 11 of 2008 (unreported) was cited, the Court held,

among other issues, that the consequences of the omission

to state the name of the authority who administered the oath

or affirmation in the jurat of an affidavit renders the affidavit

in support of the notice of motion incurably defective.

The learned Senior State Attorney added that according

to Rule 48(1) of the Rules every application to the Court shall

be by notice of motion supported by affidavit. As in this

application the affidavit in support of the notice of motion is

incurably defective, he said, that means there is no competent

application before the Court. He therefore prayed for the

application to be struck out for being incompetent.

On his part, the applicant being a lay person not

conversant with legal issues simply submitted that the defect

raised by the learned Senior State Attorney is not for him to

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be blamed for, he being a prisoner who did not draw the

affidavit.

Looking at section 8 of Cap. 12 (supra) the same states

as follows:

" Every Notary Public and

Commissionerfor Oaths before whom

any oath or affidavit is taken or made

under this Act shall state truly in the

jurat of attestation at what place and

on what date the oath or affidavit is

taken or made. /F

Looking at section 8 (supra) closely, that provision of

the law does not specifically state that the name of the

authority who administered the oath or affirmation should be

inserted in the jurat At some point in time, that led to

conflicting decisions of this Court. As submitted by Mr.

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Marandu, some case laws including that of Paul Makaranga

(supra) and Dodoli Kapufi (supra) arrived at a decision that

the name of the authority who administered the oath or

affirmation has to be inserted as part of the jurat in an

affidavit.

For example, in Dodoli Kapufi (supra) it was held

that:-

"Total absence of the jurat, or

omission to show the date and place

where the oath was administered or

the affirmation taken or the name

of the authority and / or the

signature of the deponent against the

jurat, renders the affidavit incurably

defective. H

Also see Paul Makaranga (supra) to name a few.

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At the same time, there were also decisions which

stated that it is not necessary to insert the name of the

authority who administered an oath in the affidavit as section

8 of Cap. 12 (supra) has not specifically stated to that extent.

Section 8 of Cap. 12 (supra) was amended to resolve

the conflicting decisions on the issue of the name of the

authority to be inserted in the jurat. It was the Written Laws

(Miscellaneous Amendments) (No.2) Act of 2016 which

amended section 8 of the Notaries Public and Commissioner

for Oaths Act under section 47 which provides that:-

" 47 ... the principal Act is amended

in section 8 by inserting the phrase

"insert his name end" between the

words "shslt" and "state"appearing in

that section. "(Emphasis added).

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That means it is now mandatorily required by law that

an authority who administers an oath or affirmation has to

insert his/her name in the jurat of an affidavit. Failureof that

mandatory requirement renders the affidavit incurably

defective.

In the instant application the Commissioner for Oaths

has failed to insert his name in the jurat which is contrary to

section 8 of the Notaries Public and Commissioner for Oaths

Act, Cap. 12 R.E 2002 as amended by section 47 of the

Written Laws (MiscellaneousAmendments) (No.2) Act 2016,

such a defect renders the affidavit in support of the notice of

motion incurably defective.

In the circumstances,we agree with the learned Senior

StateAttorney that an incurably defective affidavit renders the

application incomplete, as that anomaly contravenes the

requirement of Rule 48 (1) of the Rules which mandatorily

requires that every application to the Court shall be by notice

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of motion supported by affidavit. In the absence of a

supporting affidavit in this application, that renders the

application incomplete, hence incompetent. For being

incompetent we hereby strike it out. It is so ordered.

DATED at ARUSHA this pt day of August, 2017.

I.H. JUMAAg. CHIEF JUSTICE

M.S. MBAROUKJUSTICE OF APPEAL

S.S. MWANGESIJUSTICE OF APPEAL

I certify that this is a true copy of the original.

"A.H. MI

DEPUTY REGISTRARCOURT OF APPEAL

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