DSM AVERI RUING

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 000027263 OF 2024 DAR ES SALAAM AVERI SCALES (1990) LIMITED .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE OFFICE OF ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING HASSAN, J, IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA SUB REGISTRY) MISC CIVIL APPLICATION NO. 27263 OF 2024 (Originating from the decision of the High Court of Tanzania, Dodoma Sub-Registry in Civil Case No. 19 of 2022) DAR ES SALAAM AVERI SCALES (1990) LIMITED....……………… APPLICANT VERSUS CEREALS AND OTHER PRODUCE BOARD (CPB) ……..……..1ST RESPONDENT WEIGHT AND MEASURES AGENCY…………….………..……..2ND RESPONDENT ATTORNEY GENERAL ……………..…………….…………...……3RD RESPONDENT Page. 1 RULING 12th February, 2025 HASSAN, J.: The applicant has filed this application for Review made under Section 96 of the Civil Procedure Code, [Cap 33 R. E 2019]. The applicant is appealing the court to rectify proceedings and orders emanating from the decision of this court in Civil Case No. 19 of 2022. The application is supported by an affidavit sworn by Mr. Samwel Mcharo, the applicant’s learned counsel. The respondents contested the application by filing a joint counter affidavit deponed by Mr. Erasto S. Baluwa, learned State Attorney. When the matter was called on for hearing, the applicant was represented by Mr. Samuel Mcharo, learned counsel. Whereas, on the other side, Ms. Jenipher Kaaya, Senior State Attorney represented both respondents. The applicant’s learned counsel submitted in support of the application by firstly adopting his affidavit as evidence to this application and argued that, the applicant was a plaintiff in the Civil Case No. 19 of 2022 in this court whereas, the respondents were the defendants. He went on submitting that according to the proceedings, on 03/04/2024 the applicant was asked to submit a 90-day notice to sue the government by the court. Thus, the learned counsel prayed the court to allow him to submit the same on 17/04/2024. On that date, he failed to submit the same and therefore, he prayed to withdraw the suit for the purpose of refiling the same after he has served the 90 days’ notice. The learned counsel submitted that soon after receiving the typed proceedings and refiling the case through Civil Case No. 19702 of 2024, it was observed that there was a minor mistake in Civil Case No. 19 of 2022; that is, in the order, instead of reciting Civil Case No. 19 of 2022, it was recited as Miscellaneous Civil Appeal No. 19 of 2022. And that, it appears from the order that the Civil Case No. 19 of 2022 was withdrawn without leave to refile. Therefore, due to those errors, the applicant decided to withdraw Civil Case No. 19702 of 2024 in order to stage up this application for rectification of those mistakes. The learned counsel finalized his submission by praying the court to allow this application for rectification of proceedings and order as aforesaid for the sake of justice to the applicant who wishes to pursue his right through litigation. On her part, the learned Senior State Attorney firstly prayed to adopt the respondents’ joint counter affidavit. She then conceded that the court erroneously withdrew the Miscellaneous Civil Appeal No. 19 of 2022, instead of withdrawing a Civil Case No. 19 of 2022. She added that it was a clerical error on the face of the records which need to be corrected, to read Civil Case No. 19 of 2022 because at that time, the parties were only dealing with Civil Case No. 19 of 2022 and not otherwise. Page. 2 She submitted further that on the other part, the applicant also contended that this court withdrew the said Civil Case No. 19 of 2022 without giving the order for refiling. The learned Senior State Attorney argued that on their part, that was not a clerical or arithmetic mistake which is covered under section 96 of the Civil Procedure Code because, at page 24 of the proceedings of Civil Case No. 19 of 2022, the applicant’s advocate himself used Order XXIII Rule 1 of the Civil Procedure Code, which allows withdrawal of suit without leave to refile. Thus, had he intended to withdraw his suit with leave to refile, he could have used Order XXIII Rule 2 which deals with leave to refile. She added that, the application of these provisions of the law is to give option to the party whether to withdraw the suit with leave to refile or not. That is why, the court used the same provision which the applicant’s advocate has used to apply for the court’s order to withdraw the suit. In her view, that was not a clerical error, but in fact the advocate got what he prayed for, that is withdrawal of suit without costs. She added that, that was the reason even in the Civil Case No. 19702 of 2024, the issue was not about a leave to refile, but instead it was about to rectify the word “Miscellaneous Civil appeal No. 19 of 2022” in order to read “Civil Case No. 19 of 2022”. The learned Senior State attorney further submitted that, looking at the applicant advocate’s prayer for withdrawal of the Civil Case No. 19702 of 2024 in order to stage an application for rectification, he clearly pleaded that, the sought rectification will not relate with a preliminary objection advanced by the respondents. And that was the reason, the respondents withdrew their preliminary objection. She submitted that, the advocate had not intended to refile the case, hence, the order of this court given on 17/04/2024 in the Civil Case No. 19 of 2022 need not to be rectified to add the phrase “with leave to refile” as prayed by the applicant’s advocate. She further went on submitting that, this application has been filed out of time. She argued that, since this is a legal issue, it can be raised at any stage of proceedings. She backed up her submission with item 21 to the first schedule of the Law of Limitation Act, Cap. 98 R.E 2019 which provides for 60 days to file application if specific time has not been given in the specific law. She went on submitting that in the instant case, the court order in the Civil Case No. 19 of 2022 was issued on 17/04/2024, and this application for rectification has been filed on 28/10/2024, that is nearly 193 days. She submitted that, she is aware that there was a Civil Case No. 19702 which was lodged on 12/08/2024 and the same was withdrawn on 28/10/2024. Therefore, in her view, this case has not exempted the applicant to abide with the law. And that, if the applicant’s counsel thinks that was a sincere cause for delay, he should have applied for extension of time. She finalised her submissions with a prayer that the application should be dismissed with costs under section 3 (1) of the Law of Limitation Act, Cap. 89 R.E. 2019. In rejoinder, the applicant’s learned counsel maintained his submission in chief. He challenged the respondents submissions on the issue of time limit as submitted by the learned Senior State Attorney by arguing that, the application was filed under section 96 of the Civil Procedure Code, which provides that applications of this nature Page. 3 can be lodged at any time. Therefore, item 21 of the First Schedule of the Law of Limitation Act cannot apply since section 96 of the Civil Procedure Code has paved the way. Thus he prayed that the application should not be dismissed with costs as prayed by the counsel for the respondents. On the second part about the omission of the phrase “withdrawn with leave to refile,” he rejoined that, the court should allow it to be inserted under section 96 of the Civil Procedure Code, Cap. 33. He submitted further that, their intention to withdraw Civil Case No. 19 of 2022 was to manage a proper refiling. Therefore, he prayed the court to allow the application for rectification to insert the phrase “withdrawn with leave to refile” in the order of this court in the Civil Case No. 19 of 2022. I appreciate the parties’ submissions in support of and against the application in court. At this juncture the only question for determination is whether or not this application has merits worthy granting it. There is no dispute that there was a Civil Case No. 19 of 2022 which was withdrawn by the applicant in this court. The applicant then went ahead to file Civil Case No. 19702 of 2024 before the court which was also withdrawn for the purpose of applying to the court for rectification of the Order given in Civil Case No. 19 of 2022 hence this application. In his affidavit, the applicant’s counsel avers that, he prays the court to rectify the order of the court in the said civil case for two reasons, one, because the court’s order withdrew Miscellaneous Civil Appeal No. 19 of 2022 instead of Civil Case No. 19 of 2022 and two that, the court withdrew the case without inserting an order to refile a fresh suit as allegedly prayed by the applicant. In his submissions in support of the application in court, the applicant’s learned counsel argued that, he prayed to withdraw the Civil Case No. 19 of 2022 for the purpose of refiling the same after he has served the 90 days’ notice to the respondents. But, when he was served with the typed proceedings, he came to realize that, the Civil Case was wrongly cited as Miscellaneous Civil appeal No. 19 of 2022 and also there was no order for filing a new suit. On her part, the learned Senior State Attorney, firstly conceded to the prayer of rectifying the quoted Miscellaneous Civil appeal No. 19 of 2022 thus she prayed the same to be recited as Civil Case no 19 of 2022. As regards to the other prayer that the court should insert an order for refiling a new suit, she vehemently contested by submitting that, firstly, the application is out of time contrary to Item 21 to the first schedule of the Law of Limitation Act, Cap. 98 R.E 2019 which provides for 60 days time limit for filing an application if specific time has not been given in the specific law. Secondly, she argued that, the applicant’s advocate himself used Order XXIII Rule 1 of the Civil Procedure Code which allows withdrawal of a suit without leave to refile. She stressed that, had he intended to withdraw his suit with leave to refile, he could have used Order XXIII Rule 2 which deals with leave to refile. Now coming to my determination of this application. I will start with the point of law raised by the respondent in his submission regarding time limit since the same touches jurisdiction of the court. The learned Senior State Attorney submitted that Item 21 of Part III to the first schedule of the Law of Limitation Act, Cap. 98 R.E 2019 provides for time limit to file application if specific time has not been given in the specific law, that is 60 days. Page. 4 In my opinion I think, the Senior State Attorney has misdirected herself since in this chamber application, the applicant has moved the court under section 96 of the Civil Procedure Code, Cap 33 R. E 2022 for rectification of errors on the face of record. The said Section 96 provides, thus; “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on the application of any of the parties.” [Emphasis Added] The provision clearly gives guidance that applications for rectification made under this provision may be filed at any time. The logic behind this guidance being that, arithmetical errors can be corrected at any time by the court on its own motion or by application by either party without touching or affecting the merits of the case. Thus, as well submitted by the applicant’s counsel in his rejoinder submissions, there is no time limit for the application. Thus, since the provision is clear on the issue of time limit then applications for review made under Section 96 of the CPC cannot fall under Item 21 of Part III to the first schedule of the Law of Limitation Act, Cap. 98 R.E 2019 as cited by the Senior State Attorney. That said, the point of law raised by the Senior State Attorney in her submissions is discredited and overruled. Coming to the main reasons for the application. Starting with the arithmetical error in Civil Case No. 19 of 2022; that is, in the order, instead of reciting Civil Case No. 19 of 2022, it was recited as Miscellaneous Civil Appeal No. 19 of 2022. This prayer was conceded by the learned Senior State Attorney for the 3rd and 4th respondents. Indeed, going through the court’s record specifically the order for withdrawal I have observed the said error and since there is no dispute regarding the same the prayer is hereby granted. Therefore, tapparent in the face of record the order of the court shall be read Civil Case No. 19 of 2022, instead of Miscellaneous Civil Appeal No. 19 of 2022. Moving to the second prayer that the court should insert an order for refiling as allegedly prayed by the applicant. The record in Civil Case No. 19 of 2022 is clear that the applicant prayed for withdrawal of the suit under Order XXIII Rule 1 of the CPC. The Order reads thus; “1-(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.” The applicant prayed to withdraw the suit under Order XXIII Rule 1 and the court granted the order as prayed. Thus, the court rightly withdrew the civil case without an order for refiling as submitted by the learned Senior State Attorney. It might have been in the applicant’s learned counsel mind to pray for withdrawal with leave to refile the suit but he ought to have made it clear in his prayer. And for the court to put it in record, he ought to have used the right provision, that is Order XXXIII Rule 1 (2) of the CPC. To add on that, when the applicant filed Civil Case No. 19702 of 2024 in this court (before Kakolaki, J) the respondents raised a preliminary objection that the suit was instituted contrary to Order XXIII Rule 1 (2) (b) and 3 Page. 5 of the CPC, that the applicant was barred from filing a new suit since there was no order for refiling. The applicant then prayed the respondents to withdraw their preliminary objection to allow him apply to the court for rectification of the order on the arithmetical error regarding type of the case as it was earlier argued, without touching the merit of the preliminary objection raised. This is clearly seen at page 2 of the typed proceedings of the Civil Case No. 19702 of 2024. The court then granted the prayer hence this application. Thus, the applicant’s new prayer in this application is an afterthought and abuse of court’s process. That said and done, the applicant’s prayer for rectification of the order in Civil Case No. 19 of 2022 by inserting an order to refile lacks merit and thus, the same is hereby dismissed. In the end, the application is partly granted to the extent that the order in Civil Case No. 19 of 2022 is altered to read Civil Case No. 19 of 2022, instead of Miscellaneous Civil Appeal No. 19 of 2022. Each party Shall bear its own costs. Ordered accordingly. DATED at DODOMA this 12th day of February, 2025. S. H. HASSAN JUDGE 12/02/2025 Ruling delivered this 12th day of February, 2025 in the presence of the learned counsels for the parties. S. H. HASSAN JUDGE 12/02/2025 Page. 6 Dated at DODOMA this 15th of February 2025 . S. H HASSAN JUDGE OF THE HIGH COURT Page. 7