WORKOUTLINE

1.0 INTRODUCTION
1.1 MEANING OF AFFIDAVIT

2.0 MAIN BODY

2.1 LEGAL FRAMEWORK GOVERNING AFFIDAVITS IN TANZANIA

2.2 ERRORS AND OR OMISSIONS THAT WERE/ARE FREQUENTLY

2.3 CONSEQUENCES OF ERRORS AND OR OMISSIONS THAT WERE/ARE

3.0 CONCLUSION

4.0 REFERENCES
1.0 INTRODUCTION
1.1 MEANING OF AFFIDVITS

Black’s Law Dictionary, defines Affidavit to mean that; a voluntary declaration of facts written
down and sworn to by the declaration before an officer authorized to administer oaths, such as a
notary public1. Also affidavit means statement in writing made under oath or affirmation before
authorized officer2.

This means that one swears or affirm to the affidavit deposing the particular matter or fact to be
true as the way he states to the best of his knowledge or belief. The person who swears to or
affirms to affidavit is known as the deponent. As we have also seen in the case of Ottu vs
Attorney general and others3 that the expression affidavits unfortunately despite its being a
lawyer’s everyday tool, is not defined by statute, I could lay my hands on. But the lexicon
meaning of the expression affidavit is that it is sworn statement in writing, made especially under
oath or affirmation before an authorized magistrate or officer.

2.0 MAIN BODY

2.1 LEGAL FRAMEWORK GOVERNING AFFIDAVITS IN TANZANIA

- CIVIL PROCEDURE CODE [CAP 33 R.E 2019]

- THE NOTARIES PUBLIC AND COMMISSIONERS FOR OATHS ACT [CAP 12 R.E 2019]

- THE OATHS AND STATUTORY DECLARATIONS ACT [CAP 34 R.E 2019]

- THE ADVOCATES ACT

- THE LAW OF LIMITATIONS ACT

 Civil Procedure Code

Affidavits in Tanzania is governed by Civil Procedure Code 4 Order XIX the court is empowered
to direct the parties of file affidavit as substitution of the oral evidence, we must therefore take
note that being substitution of oral evidence affidavit should be free from extraneous matters

1
The Black’s law Dictionary, 7 Edition pg 58
2
Msalaba K. Bernard, Handbook of Civil Procedure Law, (2023) pg 50
3
[1997] TLR 30
4
[CAP 33 R.E 019]
such as hearsay, legal argument, objections, prayers and conclusion 5. According to Civil
Procedure Code6 Order XIX rule 1 and 2(1), provide the adverse party who right thereto. The
right to challenge the content of the affidavit. The adverse party to affidavit may file counter
affidavit to challenge the statement of the fact of the deponent of the affidavit. Also, the right is
to challenge a valid of the affidavit the adverse party may request the court to order and compel
the deponent to attend in the court to adduce oral evidence and to be cross examined thereon.
Also under Order XIX Rule 3(1) of the Civil Procedure Code 7 state that the Deponent has to state
out that to the best of his belief, the information he got from a particular source he believes to be
true.

 The Notaries Public and Commissioner of Oath Act

According to section 8 of The Notaries Public and Commissioner of Oath Act 8requires every
Notary Public and Commissioner for Oaths shall insert his name and state truly in the jurat of
attestation at what place and the date on which the affidavit is taken before him. The requirement
of indicating the date and the place of taking the affidavit in the jurat of attestation is mandatory
since the provision uses the word ‘shall which implies mandatory requirement. Has it was shown
on the Case of Shapriya &Company Ltd vs Bish international BV 9 ,Ramadhani,J.A; “Started
that , the place at which an oath is taken has to be shown in the jurat. The requirement is
mandatory; notary public and commissioner for oaths shall state truly in the jurat of attestation at
what place and on what date the oath or affidavit is taken or made”.

 The Oaths and Statutory Declaration Act10

Under section 3 The Oaths and Statutory Declaration Act 11state that “every court shall have the
authority, itself or by an officer duly authorized by it in behalf, to administer an oath or
affirmation to any person whom it may lawfully examine upon oath or affirmation” so that the
power to administer oaths and affirmations is granted to the court and its officers, or any person
duly authorized by the court the clear exclusion of the advocate from administering oaths and

5
Msalaba K. Bernard, Handbook of Civil Procedure Law, (2023) pg 53
6
ibid
7
ibid
8
[CAP 12 R.E 2019]
9
[2002] EA 42.
10
[CAP 34 R.E 2019]
11
[CAP 34 .E 2019]
affirmations for matters of judicial proceedings is available under section 11 The Oaths and
Statutory Declaration Act12 this section only recognizes the power of advocates in statutory
declarations. The section provides the followings “it shall be lawful for any person entitled
under the provisions of the notaries public and commissioners for oaths Act to exercise the
power of a Notary public or a commissioner for Oaths to take a statutory declaration of any
person voluntarily making and subscribing to the same before him”

 The Interpretations of Laws Act

Under section 4 provide that Affidavits in the case of persons allowed by law to affirm or declare
instead of swearing, includes affirmation and declaration.

2.2 ERRORS AND OR OMISSIONS THAT WERE/ARE FREQUENTLY COMMITTED

Absence of juret of attestation

One of the errors committed on drafting affidavits is failure to show the date and place where the
oath has taken. According to section 8 of The Notaries Public and Commissioner of Oath
Act13requires every Notary Public and Commissioner for Oaths shall insert his name and state
truly in t The requirement of indicating the date and the place of taking the affidavit in the jurat
of attestation is mandatory since the provision uses the word ‘shall which implies mandatory
requirement. Has it was shown on the Case of D.P Shapriya &Company Ltd vs Bish
international BV14 ,Ramadhani,J.A; “Started that , the place at which an oath is taken has to be
shown in the jurat. The requirement is mandatory; notary public and commissioner for oaths
shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is
taken or made”.

Presence of arguments in affidavits

Affidavits must contain statement of facts and not otherwise so that in drafting affidavits you
should avoid anykind of unsupported statement or arguments as shown under the case of Dar
Education and office stationery Vs NBC Holding cooperation and others 15, this case
12
ibid
13
[CAP 12 R.E 2019]
14
[2002] EA 42.
15
(1980) TLR Pg 61.
provides the objection that affidavit contains arguments instead of fact and also counter prayers.
Also Uganda V. Commissioner of prisoner Ex parte Matovu 16”. If that is the case, could it in
the name of justice be said that adducing of argument is an offensive as to cause an application to
be struck out and thereby the court of justice an affidavit to determine the matter on merits,
forms and procedures on hand mods of justice and should not be used in a defeat justice.

Inaccurate and insufficient information

One of the mostly common errors committed in affidavit drafting is failing to provide accurate
and sufficient information. An affidavit should include all relevant details and fact related to the
situation or case at hand. Omitting crucial information and providing inaccurate details a weaken
credibility of your affidavit and may lead to legal setbacks. Under the case of Hadija Adam Vs
Goodbless Tumbo17 , Othman C.J, held that, this was the preliminary objection by the
respondent challenging the application by the applicant lodge within which to file an application
for stay of execution of the judgement and decree of the high court in (Primary Court). On the
ground that her affidavit in support of the application is incurably defective for not disclosing the
place where it was made contrary to section 8 of the Notaries Public and Commissioner of Oaths
Act18

Absence of signature on affidavit

An affidavit must be signed failure to do so may lead an affidavit to be invalid as shown under
the case of Monica Paul Masanja vs. Kahama Investment Ltd in this case the preliminary
objection was raised that the application of affidavit was incurable and defective for lacking a
deponent signature hence the affidavit was struck out from the record.

Absence of verification clause.

Affidavit which are without verification clause or specification of source of information are
defective. Means the Deponent must verify the content or statement he has made to be made to
be true either to the best of his knowledge or according to the knowledge or information from a
particular source which the Deponent belief to be true. As provided in the case of Salim vuai

16
(1966) EA 510
17
Civil application no 3 of 2010 the Court of Appeal of Tanzania at Arusha.
18
[CAP 12 R.E 2019]
foum Vs Register of cooperative society and 3 Others 19 also under the case of Mehar Singh
vs Mahendra Air20 this case state that an improper verified affidavit cannot be amended but the
party may file another affidavit. A deponent must verify the content or statement he has made to
be true either to be best of his knowledge or according to the knowledge or information from a
particular source which the deponent believes to be true.

3.0 CONSEQUENCES OF ERRORS AND OR OMISSIONS THAT WERE/ARE

Generally the defective affidavit is the one which breach the rule relating to the drafting affidavit
and the A defective affidavit is general rejected or struck out by the court as stated under the case
of Well worth Hotel & Lodges Ltd Vs East Africa Cavans Co. Ltd & 5 others 21 Nangela J.
Held that when affidavit is found defective even the application it supported become useless.
This is because an application they must be supported by an affidavit, must be supported by an
affidavit. However specifically defects can be allowed to be rectified

4.0 CONCLUSION

Affidavit is important tool in the court of law so as to show the validity and truthfulness of the
information given by deponent so in order to face consequences of invalid affidavits its
important to follow the procedure when drafting it.

REFERENCES

BOOKS

19
(1995) TLR 75.
20
1987 BEL 300
21
Commercial case 5 of 2020 HCT Commercial division Dar es salaam(unreported)
Msalaba K. Bernard, Handbook of Civil Procedure Law, (2023)

The Black’s law Dictionary

STATUTES

 Civil Procedure Code [CAP 33 R.E 019]

 The Notaries Public and Commissioner of Oath Act [CAP 12 R.E 2019]
 The Oaths and Statutory Declaration Act [CAP 34 R.E 2019]
 The Interpretations of Laws Act

CASES

- Well worth Hotel & Lodges Ltd Vs East Africa Cavans Co. Ltd & 5 others Commercial
case 5 of 2020 HCT Commercial division Dar es salaam(unreported)
- Mehar Singh vs Mahendra Air 1987 BEL 300
- Salim vuai foum Vs Register of cooperative society and 3 Others (1995) TLR 75
- Hadija Adam Vs Goodbless Tumbo Civil application no 3 of 2010 the Court of Appeal of
Tanzania at Arusha.
- Uganda V. Commissioner of prisoner Ex parte Matovu (1966) EA 510
- D.P Shapriya &Company Ltd vs Bish international BV [2002] EA 42.