emmanual kayanda hosea and another vs sophia ernest rintenge and two others 2022 tzhc 14363 27 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA LAND REVISION NO 03 OF 2022 (Arising from the Land Application No. 93/2020 and Land Application No. 25 of 2020 from of District Land and Housing Tribunal at Kigoma) EMMANUEL KAYANDA HOSEA 1ST applicant HOPE JAFFAR KAWAWA 2ND applicant

VERSUS SOPHIA ERNEST RINTENGE 1ST respondent SPECIOZA DOMINICK SENTOZI 2ND respondent

DAGRAS HOSEA KAYANDA

RULING 25/10/2022 & 27/10/2022 L.M. MlachaJ This a ruling on an application for correction of errors on the Ruling of this court made in Land Revision No. 3/2022 dated 20/9/2022. The application was made by Mr. Hope Jafari Kawawa who was one of the applicants in the revision. He moved the court by way of a letter addressed to the Deputy I Registrar (the DR) dated 4/10/2022. Mr. Hope draw the attention of this court on two areas as follows: - 1 1. "1. On page 3 at the 8* line, from the after the full stop, counsel, I reasonably believe it ought to be chairman.

2. On page 9 at the 3*^ line from the top, a third word from left. applicant, I reasonably believe if ought to be the first applicant (Emphasis added). When the letter was brought to my attention by the DR I directed him to I insert an order in the record calling the parties to appear and address the court on the issue. The parties in the revision were Emanuel Kayanda and I Hope Jafari Kawawa (applicants) and Sophia Ernest Ritenge, Specioza I Dominick Sentozi and Dagras Hosea Kayanda (Respondents). He inserted I the order and made a telephone call to them. The applicatiorKwas called for hearing on 25/10/2022. Mr. Hope Jafari Kawawa appeared in person while Mr. Silvester Damas Sogomba appeared for the first respondent, Sophia Ernest Ritenge. Others could not enter an I

I I I appearance. Give the proof of service, the court decided to hear those who were present and proceed with the revision. Hearing was done online by oral 1 I submissions. Mr. Silvester Damas Sogomba was in Kigoma while Mr. Hope Jafari Kawawa was in Dar es salaam. 2 Mr. Hope invited the court to rectify the errors making reference to section I I 96 of the Civil procedure Code Act R.E.2019 (the CPC) as his authority. Mr. Silvester Damas Sogomba resisted the application saying that it was made contrary to the Law. He had in mind the provisions of order XLIII rule 2 of the CPC. He had no problem with the power of court to make the correction under section 96 of the CPC, but argued that where a party wants to move the court to do anything, he has to move it by presentation of a chamber I I summons supported by an affidavit not by a mere letter. He argued the court to struck out the application on failure to comply with the law. Given the nature of the submissions and for future guidance, this being an area of repeated mistakes, I think it is important to respond to the issue I I raised by Mr. Sogomba fully. Like Mr. Sogomba, I agree with Mr. Hope that. i I section 96 of the CPC allows 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 an application by any of the parties. The Law speaks of errors in judgments, decrees or orders. It speaks of errors arising from accidental slip of the pen or omission, not any error. The Law gives the court power to I make the correction at any time. The law say that the errors may be 3 corrected by the court on its own motion or on the application of any of the parties. Section 96 of the CPC is clear that the court may correct the errors on its own motion or on application by any of the parties. Section 96 of the CPC must be read with order XLIII rule 2 of the CPC. This is provision which show how to access the jurisdiction of the court. Rule 2 is reproduced in full for easy of reference as under; "2. Every application to the court made under this code shall, unless otherwise provided, be made by a chamber summons supported by an affidavit. Provided that, the court may where it considers fit to do so, entertain an application made orally or where the parties to the suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates or in such other made as may be appropriate having regard to all the circumstances under which the application is made"(Emphasis added). So, it is a rule that all applications to the court must be made by presentation of a chamber summons supported by an affidavit. But this rule

is not without exceptions. We have three exceptions. That is, where the court sees it to be 4 appropriate, it may allow an applicant to make his application i) orally or where parties consent to the order applied for, by memorandum in writ or ill) in such other mode as the court may find it proper. The court allow a party to make an oral application. This is usually done in the cou of trial in situations like a prayer for rescheduling of the pre-trial confere or a prayer for an adjournment. Parties may also sign a written memorand for adjournment of the case and present it to the court where there is agreement on adjournment and the date. And finally, where circumstan so permit the court may allow a party to use any other form. The m popular form in this regard is by presentation of a letter. This is what done in this case. In whatever situation, the court has power to say yes no. Two questions may arise. How can I know that this is a fit situation proceed otherwise than by presentation of a chamber summons affidavit? And how can It be done? The Law presupposes an ear consultation with the court before moving to the exceptions to the gene rule. That Is, the applicant(s) must have obtained a leave of the court I record) before deciding to use any of the three options. This is wha I apparent but in practice, a parties simply take the course and leave I 5 matter to the court for

decision. Most people will then suffer dismissal as was suggested by Mr. Sogomba. The court will act as it may deem fit. If it will find to be proper, it will entertain the matter or if it will find it as a case demanding the filing of a chamber summons and affidavit, it will refuse and I make a direction to do so. To avoid the risk of summary rejection, I think that good practice demands that one has to make a consultation with the court before moving to any of the exceptions to the general rule. Further, the parties must be given the right to be heard before doing anything. Whether it is done by the court on its own motion or on application by any of the parties, the court must summon the parties, inform them of I what it intends to do and require them to make their submissions before moving to examine the judgment or decree. Failure to call the parties may render the exercise illegal for the parties have a right to be hard in the matter safeguarded by the Constitution. In our case, the applicant wrote the letter and it was acted upon. It was not rejected. My endorsement on the letter signified the consent of the court. I found that this was one of the applications which fell under the third category, "such other mode as may be appropriatd'. I approved the letter because it appeared as the best mode of dealing with the problem in the 6 J circumstances of the case. The

corrections (if any), could be done quickly by a presentation of a letter other than a chamber summons and affidavit I because it involved straight forward issues which did not involve many facts. 1 It is not a situation calling for the filing of a counter affidavit to bring facts. I ! The right to be heard was accorded to the parties. Those who felt that they I I had something to tell the court have done so. The court can now safely move I to examine the judgement. The issue now is whether there is any clerical or arithmetical mistakes in the ruling calling for correction? Mr. Hope have referred us to page 3, the line from above. He referred the court to the word "Counsel" saying that in the flow of things it ought to have been "Chairman". Having read my ruling closely, I have the view that indeed this was a slip of the pen for the one who is said to have failed to give reasons for refusal in the decision was not the counsel but the chairman. Next is page 9, 3"* line from the top. Counsel referred the court to the word 'applicant' saying it ought to have been the 'first applicant'. I agree with him for the one who spoke the words which followed was Mr. Emanuel Kayanda Hosea who is the first applicant in the revision. It must have been a slip of 7 the pen because of the existence of two applicants in the revisions. Writing just applicant did not bring any sense. It was nothing but a slip of the pen. Having said so, I order rectification of errors by deleting the words and replacing the relevant words as pointed above. That said, let afresh ruling be produced, signed and supplied to the parties. The former ruling will still be in the file for record purposes. It is ordered so. No order for costs. L.MJ Judge 1 7/10/2022 Court I L.M. acha Judge 27/10/2022 8