eliakira gabriel pallangyo vs magreth daniel another 2018 tzhc 2442 23 november 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF ARUSHA

AT ARUSHA MISC CIVIL APPLICATION NO. 126 OF 2017 (Originating from Civil Application No. 103 of 2002 and High Court (PC) Civil Appeal No. 52 of 1999) ELIAKIRA GABRIEL PALLANGYO................APPLICANT

VERSUS MAGRETH DANIEL.................... ............ I st RESPONDENT DAUGLAS SAMSON LEMA........................ 2nd RESPONDENT

RULING 19/11/2018 & 23/11/2018 MZUNA, J.: This application is for making correction of the drawn Order in respect of Misc. Civil Application No. 103 of 2002. The application is preferred under Section 96 of the Civil Procedure Code, Cap 33 RE 2002. There is an affidavit supporting the application. i Arguing in support of the application, Mr. Lundu, the learned counsel for the applicant in the first place prayed for the court to adopt the filed affidavit as part of his submission. He said that they seek for correction of the drawn order and the proper certificate of law as the one which was issued by Hon Sambo J (as he then was) merely said that "the application is granted" without certifying the points to be determined by the Court of Appeal. That this court should grant leave to appeal and certify the points which are listed in the Ruling issued by the same Hon Judge. In brief he said that the problem is only on the drawn order and the word leave to appeal to the Court of Appeal and Certified points of law as well. Apparently Mr. Kinabo, the learned counsel who represented the respondents did not file counter affidavit and therefore he was presumed to have no objection to the application but the court allowed the learned counsel for the applicant to argue the application as above shown. The main issue is whether the application seeks to make corrections on the errors which are

apparent on the record? Section 96 of the CPC, Cap 33 RE 2002 to which this application relates, reads that:- "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 o f its own motion or on the application of any of the parties." That provision was interpreted in the case of Jewels & Antiques (T) Ltd vs. National Shipping Agencies Co. Ltd [1994] TLR 107 (CA) where the court observed that courts power is limited to the clear wording of the provision and cannot go beyond like "further amending the decree." Reading from the submission of the learned counsel, it is clear that what is being sought is a clear "accidental slip or omission" which is allowed. That said, I proceed to make corrections on the drawn order to read as per the ruling that:- 1. Leave to appeal to the court of Appeal is allowed.

2. It is hereby certified that the following is a point of law worth consideration by the Court of Appeal "Whether a person who was sued as an interested party regarding a property in dispute in a suit, but decided not to defend his rights in a suit, is legally competent to give evidence as a defendant's witness testifying on how he passed his title over the property in dispute to a third party without first establishing his title to such property. " Application is allowed with no order for costs. k--- V' M. G. MZUNA, JUDGE. (SUCCESSSOR JUDGE).