In D.B Shapriyaand Co. Ltd vs Bish International B.

V 1 the court define an affidavit “is a written

In other word an affidavit is a statement in the name of a person called a deponent, by whom it is
voluntarily signed or sworn to or affirmed. 3 In Director of Public Prosecutions vs. Dodoli Kapufi and
Patson Tusalile4, The court of appeal provides for essential ingredients of any valid affidavit,
therefore, have always been the statement or declaration of facts by the deponent, a verification
clause, a jurat, and the signatures of the deponent and the person who in law is authorized either to
administer the oath or to accept the affirmation.

An affidavit is governed by certain rules and requirements that they have to be followed religiously,
thus the followings are the law governing an affidavit

Civil procedure Code Cap 33 R;E 2019, these Codes apply to all civil proceedings in the HighCourt
of the United Republic, courts of resident magistrates and district courts. The code provide for
different criterions that governing an affidavit, as per Order XXLIII Rule 2 5 “provided that very
application to the Court made under this Code shall, unless otherwise provided, be made by a
chamber summons supported by affidavit” although the Court may where it considers fit to do so,
entertain an application made orally or, where all the parties to a suit consent to the order applied for
being made as per Order XXLIII Rule 26 concern.

The Notaries Public And Commissioners For Oaths Act Cap 12 R;E 20019, An Act relating to
Notaries Public and Commissioners for Oaths, which provide for the Persons entitled to practise as
notaries public and commissioners for oaths under section 3 (1)-(2) 7, Enrolment and granting of
certificates Under section 4 (1)-(5)8, Jurat to state when oath is taken under section79.

The criminal procedure Act cap 20 R;E 2019, An Act provided for the procedure to be followed in
the investigation of crimes and the conduct of criminal trials before High court, resident Magistrate
Court and District court, every application under this Act made before a court either orally or in
1
Civil Application No. 53 of 2002, (Unreported)
2
Black’s law dictionary, 7th edition. At page 58
3
Taxmann’s law dictionary, d.p. Mittal, at pg. 138.
4
Criminal Application No. 11 Of 2008 (Unreported) At Page 2
5
Civil procedure Code Cap 33 R;E 2019
6
Civil procedure Code Cap 33 R;E 2019
7
The Notaries Public And Commissioners For Oaths Act Cap 12 R;E 20019
8
The Notaries Public And Commissioners For Oaths Act Cap 12 R;E 20019
9
The Notaries Public And Commissioners For Oaths Act Cap 12 R;E 20019

1
written form and those which made in written form shall be by way of a chamber summons supported
by affidavit as per section 392A (1) and (2) 10.

The Tanzania Court of Appeal (amendment) Rules 2019, these rules made under section 12 of
Appellate Jurisdiction Act cap 141 R:E 20019, these Rules administering the Court of appeal
proceedings whereby form of applications to Court as per Rule 48 11 indicate that “every application
to the Court shall be by notice of motion supported by affidavit and shall cite the specific rule under
which it is brought and state the ground for the relief sought” also the same rule provided for the
contents required in affidavit and the Rule 49 (1) 12 require every formal application to the Court shall
be supported by one or more affidavits of the applicant or of some other person or persons having
knowledge of the facts.

The Basic Rights and Duties Enforcement Act Cap 3 R:E 2019, this Act apply only for the
purposes of enforcing the provisions of the basic rights and duties set out in Part III of Chapter One
of the Constitution, as per section 12 13 provided the form of evidence where by the High Court may,
in its discretion receive evidence by affidavit in addition to or in substitution for oral evidence.

The Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure
And Fees) Rules, 2014, these Rules Made under section 19 of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Act Cap 310, These Rules apply to applications for the prerogative orders
of mandamus, prohibition and certiorari. Where a leave to apply for judicial review has been granted,
the application shall be made by way of chamber summons supported by an affidavit and the
statement in respect of which leave was granted as per section 2 and 8 14.

The Judicature and Application of Laws (Criminal Appeals and Revisions in Proceedings
Originating from Primary Courts) Rules 2021, These Rules apply to proceedings in criminal
appeals and revisions to the district court, the High Court in matters originating in the primary court
exercising its original jurisdiction. An application for revision under these Rules shall be by way of
chamber summons supported by an affidavit, stating the grounds for revision thereof as per section 2
and 4 (2)15.

Court Fees Rules 2018, these Rules Made under section 4 of the Judicature and Application Of Laws
Act (Cap.358) under first schedule specified the court fees upon an application which instituted by
way of chamber summons supported by affidavit, for administering an oath, affirmation, taking an
10
The criminal procedure Act cap 20 R;E 2019
11
The Tanzania Court of Appeal (amendment) Rules 2019
12
The Tanzania Court of Appeal (amendment) Rules 2019
13
The Basic Rights and Duties Enforcement Act Cap 3 R:E 2019
14
The Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure And Fees) Rules,
2014
15
The Judicature and Application of Laws (Criminal Appeals and Revisions in Proceedings Originating from
Primary Courts) Rules 2021

2
affidavit or receiving a declaration be paid in the High Court, a court of a resident magistrate and
district court in civil matters and second schedule fees payable in primary courts on civil matters For
administering an oath or affirmation, also in criminal matter For the attendance of an officer of the
court to administer an oath or affirmation as per Rule 7 (1) and (2)16 concern,

Mistakes are categorized as a mistake of fact or mistake of law, a mistake of fact occurs when a
person believes that a condition or event exists when it does not. A mistake of law is made by a
person who has knowledge of the correct facts but is wrong about the legal consequences of an act or
event17, thus the following are the common mistakes in affidavit.

Absence of the jurat, the word jurat has its origin in the latin word “jurare” which meant “to swear”.
In its brevity a jurat is a certification added to an affidavit or deposition stating when, where and
before what authority the affidavit was made. As per section 8 of the Notaries Public and
Commissioner for Oaths18 concern. Such authority usually a notary public or commissioner for oath,
has to Certify three matters namely, that the person signing the document did so in his presence, that
the signer appeared before him on the date and at the Place indicated thereon, and that he
administered an oath or affirmation to the signer who Swore to or affirmed the contents of the
document19.

In D.P. Shapriya & Co. Ltd vs. Bish International B.V,20 this Court categorically ruled that “the
requirement to strictly comply with section 8 of Cap 12 is mandatory and not a shear technicality and
that regularity in the form of a jurat cannot be waived at all by parties. 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”.

An affidavit that contain extraneous arguments, an affidavit is a written statement on oath which
must be free from extraneous matters such as objections, hearsay, legal arguments, opinion, prayers
and conclusions. In Uganda vs. Commissioner of Prisons, Exaparte Matovu,21the court held that ‘As a
general rule of practice and procedure, an affidavit is a substitute for oral evidence, should only
contain statements of facts and circumstances to which the witness deposes either of own personal
knowledge or from information which he believes to be true”.

Fail to disclose the source of information, fail to give the source of assertions in an affidavit the
facts could not in any way be true to the best of the knowledge, thus rendering the affidavit to be
16
Court Fees Rules 2018
17
https://legal-dictionary.thefreedictionary.com/mistake At 11:29 3/6/ 2021
18
Act, Cap 12 R.E. 2002
19
Criminal Application No. 11 Of 2008 (Unreported) At Page 2
20
[2002] E.A. 47
21
[1966] 1 EA 514

3
incurably defective. Where an affidavit is made on information, it should not be acted upon by any
court unless the source of information is specified in Salma Vuai Foum vs. Registrar of Cooperative
Societies & 3 Others,22 the court held that “The affidavit is incompetent if it does not reveal the source
o f deponent's information and knowledge”.

Fail to specified the paragraphs of the affidavit which are based on own knowledge and those
which are based on belief, a deponent in the verification clause of an affidavit is required to specify
the paragraph(s) he or she has verified to be true to his knowledge or belief or information whereby its
source must be disclosed. In Anatol Peter Rwebangira vs.The Principal Secretary, Ministry of
23
Defence And Another, the court held that “without the specification, neither the Court nor the
respondents can safely gauge as to which of the deponed facts are based on the applicant's own
knowledge and what are based on his belief”.

Also in Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd,24 the court held that “A court will not
act upon an affidavit which 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.”

An affidavit that is tainted with untruth, an affidavit that is tainted with untruth is no affidavit at all
and cannot be relied upon to support an application, evidenced in a case of Ignazio Messina Vs
Willow Investments Sprl,25 the court held that “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.”

If an affidavit mentions another person then that other person has not sworn an affidavit.
In Benedict Kimwaga vs. Principal Secretary, Ministry of Health.26 The court held that “If an affidavit
mentions another person, then that other person has to swear an affidavit. However, I would add 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.”
An affidavit that does not support the application, occur when wrongfully mentioning a person in
the chamber of summons which has been sworn by another in support of the application, although
wrongfully mentioning a person in the chamber of summons which has been sworn by another in
support of the application is not fatal ailment in Pride Tanzania Limited vs Mwanzani Kasatu

22
1995 TLR 75 (TZCA) 
23
Civil Application No 548/04 Of 2018 (Unreported)
24
[1972] HCD 228 HC  
25
Civil application No. 21/2001 CAT
26
Civil Application No. 31/00 CA

4
Kasamia,27 The court found that striking out “the application will amount to wasting of resources
because the applicant would possibly come back later with the replacement of names in the
application. The court accordingly allowed the applicant to substitute the names in the chamber
summons, rectify the names by hand with an initial beside the handwriting alteration”.
Briefly in the effect of filling defect affidavit, the position of the law can safely be summarized in
Phantom Modern Transport (1985) Ltd. V.D.T. Dobie (Tanzania) Ltd.28 The court held that “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 a nothing”

BIBLIOGRAPHY

Statutes
The Basic Rights and Duties Enforcement Act Cap 3 R:E 2019
Civil procedure Code Cap 33 R;E 2019

The Tanzania Court of Appeal (amendment) Rules 2019

Court Fees Rules 2018

27
(Misc Commercial Cause No. 230 of 2015) [2016] TZHC Com D 30 (Unreported)
28
Civil Reference No. 15 2001 And 3 Of 2002

5
The criminal procedure Act cap 20 R;E 2019

The Notaries Public And Commissioners For Oaths Act Cap 12 R;E 20019

The Judicature and Application of Laws (Criminal Appeals and Revisions in Proceedings Originating
from Primary Courts) Rules 2021

The Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and
Fees) Rules, 2014

Cases
Anatol Peter Rwebangira vs.The Principal Secretary, Ministry of Defence And Another, Civil
Application No 548/04 of 2018 (Unreported)

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

D.B Shapriyaand Co. Ltd vs Bish International B.V Civil Application No. 53 of 2002, (Unreported)

Director of Public Prosecutions vs. Dodoli Kapufi and Patson Tusalile Criminal Application No. 11 of
2008 (Unreported)

D.P. Shapriya & Co. Ltd vs. Bish International B.V, [2002] E.A. 47

Ignazio Messina Vs Willow Investments Sprl, Civil application No. 21/2001 CAT

Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd [1972] HCD 228 HC  

Phantom Modern Transport (1985) Ltd. V.D.T. Dobie (Tanzania) Ltd Civil Reference No. 15 2001
And 3 Of 2002

Pride Tanzania Limited vs Mwanzani Kasatu Kasamia (Misc Commercial Cause No. 230 of 2015)
[2016] TZHC Com D 30 (Unreported)

Salma Vuai Foum vs. Registrar of Cooperative Societies & 3 Others 1995 TLR 75 (TZCA) 

Uganda vs. Commissioner of Prisons, Exaparte Matovu [1966] 1 EA 514

Books
Black’s law dictionary, 7th edition.

Taxmann’s law dictionary, d.p. Mittal

Electronic sources
https://legal-dictionary.thefreedictionary.com/mistake