IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: JUMA, Ag. CJ, MBAROUK, J.A. And MWANGESI, J.A.)

CRIMINAL APPLICATION NO. 1 OF 2011

DARUSI GIDAHOSI….……………..……………………. APPLICANT

VERSUS
THE REPUBLIC……………….…………………………. RESPONDENT

(Application for Review of Sentence from the decision of the

Court of Appeal of Tanzania at Arusha)

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

dated the 11th day of October, 2011

in

Criminal Appeal No. 298 of 2008

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RULING OF THE COURT

31st July & 4th August, 2017

MBAROUK, J.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

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Massati, J.A.) dated 13th October, 2011. In support of the

notice of motion, there was an affidavit of Darusi Gidahosi

annexed thereto.

When the application was called on for hearing, it

transpired that the respondent / Republic had earlier on 25 th

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 DARUSI GIDAHOSI 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

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Senior State Attorney appeared for the respondent /

Republic.

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).

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 The learned Senior State Attorney further submitted

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

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.

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 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

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

Commissioner for 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.”

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

the law does not specifically state that the name of the

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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.

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

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 the jurat, renders the affidavit

incurably defective.”

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

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:-

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 “ 47 … the principal Act is amended

in section 8 by inserting the phrase

“insert his name and” between the

words “shall” and “state” appearing

in that section.” (Emphasis added).

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. Failure of

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 (Miscellaneous Amendments) (No. 2) Act 2016,

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

motion incurably defective.

In the circumstances, we agree with the learned

Senior State Attorney 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 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 1st day of August, 2017.

I.H. JUMA
Ag. CHIEF JUSTICE

M.S. MBAROUK
JUSTICE OF APPEAL

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 S.S. MWANGESI
JUSTICE OF APPEAL

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

A.H. MSUMI
DEPUTY REGISTRAR
COURT OF APPEAL

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