IN THE HIGH COURT OF TANZANIA

(IN THE DISTRICT REGISTRY)

AT MWANZA

MISC. CIVIL APPLICATION No. 153 OF 2019

(Arising from HC Civil Case No.29 of 2017)

SAHARA MEDIA GROUP LIMITED APPLICANT

VERSUS

THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND RESPONDENT

RULING

Last order: 18.03.2020

Ruling date: 24.03.2020

A.Z.MGEYEK WA, ]

The applicant applied for an extension of time to file an

application to set aside a Summary Judgment in Civil Case No.29 of

2017. The application is supported by an affidavit sworn by Raphael

Shillatu.

On 17° March, 2020 the learned counsel for the respondent filed a

notice of preliminary objection which sought to impugn the application

on three points, which are conveniently paraphrased as follows:-

1. The application is unmaintainable and bad in law. Affidavit of one Mr.

Raphael Shillatu is incurably defective as the verification clause does not

disclose the source of information.

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2. The affidavit of Mr. Raphael Shillatu which supports the application is

bad in law for containing extraneous matters; speculations, arguments,

and opinions.

3. The affidavit of Mr. Raphael Shillatu which supports the application is

bad in law for being tainted with untruth.

The Preliminary Objection was argued before me on 18° March,

2020. The applicant enjoyed the service of Mr. Boniphace Sariro, learned

counsel whereas the respondent enjoyed the service of Mr. Frank Mgeta,

learned counsel.

In support of the preliminary objection, the learned counsel for the

respondent pursued the 1° point of objection challenging the present

application to be incompetent on account of being bad in law and

defective as the verification clause does not disclose the source of

information. Mr. Mgeta fortified his argument by citing the case of

Director of Public Prosecution v Dodoli Kafupi Criminal Appeal No.

11 of 2008 where the Court of Appeal held that the verification clause is

one of the essential ingredients, it simply shows the facts the deponent

assert to be true on his knowledge and those bases on information. He

also cited the case of Anatl Peter Lubangila v Principal Secretary

Ministry of Defence and National Service and others Civil

Application No.548 of 2018, the Court of Appeal observed that where an

averment is not based on personal knowledge the source of information

should be disclosed. In this regard the learned counsel for the

respondent argued that in the present application the applicant's

affidavit is sworn by the applicant who stated that the respondent had

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filed a summary suit against the applicant and the same was delivered

on 7" August, 2018 while the applicant never had knowledge of the said

suit but it came to his knowledge when he was informed by a good

Samaritan. Mr. Mgeta valiantly argued that the verification clause is an

anomaly for not disclosing the name of the good Samaritan and the

source of information regarding paragraph 2 and 3 of the affidavit were

not disclosed.

He continued to argue that the applicant was required to specify

the paragraphs that he had verified to be of his knowledge and those

based on information or beliefs. Mr. Mgeta continued insisting that the

affidavit is incurable defective, the same be expunged from court

records, thus the application is incompetent.

As for the 2° point of objection, he challenged the present

application to be incompetent on account of containing argumentative,

expression opinion, legal point, and hearsay paragraphs. He pointed out

that paragraphs 2,3,4 and 5 of the applicant's affidavit must be

expunged from the record per Order XIX Rule 2 of the Civil Procedure

Code Cap. 33 which provides a mandatory requirement that an affidavit

must contain facts only which are on the knowledge of the deponent

and the same must be disclosed. Mr. Mgeta fortified his argument by

referring this court to the case of Uganda v Commissioners of

Prisons Expert Matofu 196 EA 520, Phanton Morden Transport

Ltd v OT Dobi (T) Ltd (1985), Fortunatus v Permanent Secretary

Ministry of Home Affairs of Tanzania Civil Appeal No. 37 of 2017

and Jacqueline Ntuyabaliwe Mengi v Benson Benjamin Mengi and 5 others Misc. Application No. 486 of 2019. Mr. Mgeta insisted that

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the applicant's affidavit particularly paragraph 4 contains speculations;

there is no any pending application before the court. He added that

paragraph 5 of the applicant's affidavit contains a legal point rather than

the fact of law and paragraph 6 contains prayers.

In conclusion, he prays for this court to expunge paragraphs 2, 3,

4, 5 and 6 of the applicant's affidavit from the court record after being

expunged what remains cannot sustain the application thus he prays the

same be struck out.

With regard to the 3° point of objection, Mr. Mgeta submitted that

paragraphs 2 and 3 of the applicant's affidavit contains information by

naming a good Samaritan without disclosing in the verification clause

and he averted that all that is stated is from his own knowledge contrary

to his own averments in paragraph 2 and 3 in bases of that he prays this

court to sustain the objection and struck out the application with costs.

In reply, Mr. Boniphace opposed the preliminary objection. He

submitted that the application is properly before the court because the

respondent was supposed to file a counter-affidavit containing grounds

as to why he is opposing the application otherwise the submission of the

learned counsel for the respondent is mere allegations. He forcefully

argued that the respondent in his counter-affidavit has not disputed the

fact containing in the affidavit therefore his submission lacks legal bases

and the court should not act upon.

Mr. Boniphace argued further that all information contained in the

affidavit are relevant based on the applicant's own knowledge. In

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rebuttal, he said that it is not a practice that the verification clause must

acknowledge instead a person who was named has to swear an

affidavit. He continued to argue that the word 'learnt' in paragraph 2 is

not an error because it was based on his knowledge and it was the

reality that he was not aware of the case to what he knows to his

knowledge. Mr. Boniphace argued that the 3° and 4° paragraphs are in order, contains the truth only because the applicant was not supplied

the said information by someone else.

Submitting concerning the 5 paragraph of the applicant's

affidavit, he argued that the application is based on the issue of

illegality. Concerning the 6" paragraph, it contains facts, reference to

the prayer contained in chamber summons. He further argued that all

allegations raised by the learned counsel for the respondent do not

suffice and there is no need to expunge any paragraphs as they are well

written. He differentiated the cited case of Jacqueline Mengi and urged

this court to be guided by section 9 of the Oath and Statutory

Declaration Act, Cap. 34.

In conclusion, the learned counsel for the applicant argued that

the preliminary objections are devoid of merit, containing fishing

expeditions and the same lacks merit, the same be dismissed with costs.

In his riposte, Mr. Mgeta reiterated his submission in chief and

insisted that the affidavit contains fact. Mr. Mgeta insisted that the cited

cases are relevant and other Court of Appeal cases were cited with

approval hence they are relevant. He concluded by stating that the

affidavit is non-compliance with the law the same need to be struck out.

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After careful consideration of the submission of learned counsels,

the point of determination is whether the preliminary objection is

meritorious.

I think the main issue for consideration in this preliminary

objection is the validity of the affidavit deponed by the applicant. I have

opted to combine the 1° and 2° points of objection and analyse as

follows:­

A perusal of the Applicant's affidavit which was taken on 7 October, 2019 as well as the submission of the learned counsel for the

respondent, it is an undisputed fact that the applicant's affidavit which

was an essential part of the applicant's application contains some

paragraphs which contain; information, legal point, and prayer. I am

saying so because examining paragraph 3 it is clear that the paragraph

contains information, the applicant declares that he was informed by a

good Samaritan that means it was not of his own knowledge.

There is nowhere shown that the applicant's advocate has

acknowledged where he received the information that means he relied

on information without mentioning the source of information. It is trite

law that any affidavit made on information must state the source of the

said information, either as a whole or in any particular paragraph. Short

of that renders the affidavit defective and incompetent. In the instant

application, the applicant did not acknowledge where he received the

information which formed part of his affidavit. In the case of Standard

Goods Corporation Ltd. v Harakchand Nathu & Co [1950] EACA 99

it was held that: 6

"It is well settled that where an affidavit is made on information it

should not be acted unless the source of information is specified. "

Similarly in the case of Premchand Raichand Ltd and another

v Quarry Service of East Africa Ltd and others [1969] lEA 514 and

the case of Malachi O Majlwa and 84 others v Dar es Salaam City

Council and the Attorney General Misc Civil Cause No. 14 of 1993

HC of Tanzania (unreported). In the case of Premchand Raichand Ltd

(supra), it was held that:­

" The affidavit in support of the application did not disclose the

source of the information contained in them and should have been

disregarded."

Additionally, the verification clause did not specify the source of

information deponed by the applicant. The legal position regarding

affidavits that do not specify a source of information is crystal clear.

From case law, numerous cases have been decided by this court and the

Court of Appeal for Eastern Africa on this point is that where an affidavit

is made on information it should not be acted upon by any court unless

the source of information is specified. In the case of Bombay Flour Hill

v Hunibhai M. Patel E.A. 803 it was held that:­

". the affidavit did not state the deponent's means of knowledge or his

source of information and belief, the affidavit was defective and

incompetent, the application based on the affidavit was dismissed.

Likewise, in the case of Anatl Peter Lubangila (supra), the Court

of Appeal applied the same principle. Paragraphs 2 and 4 were supposed

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to be disputed in the counter affidavit and the same was done therefore

the objection concerning these two paragraphs is demerit.

Concerning paragraph 5 it is vivid that this paragraph contains legal

points since the applicant has raised an issue of illegality and he has

explained it in length and paragraph 6 contains prayers. Therefore,

paragraphs 5 and 6 cannot be left to stand.

Basing on the above authorities the verification clause is defective

for failure of the applicant to acknowledge the source of information. As

a result, and for the above reasons, I uphold the preliminary objection.

The application, accompanied by a defective affidavit is declared

incompetent and accordingly, I strike it out without costs.

It is so ordered.

DATED at Mwanza this 24 March, 2020.

A.Z.M!EKWA JUDGE

24.03.2020

Ruling elivered on 24th March, 2020 in the presence of Ms. Catherine,

learned Advocate holding brief for Mr. Boniphace, learned counsel for

the applicant and the respondent.

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