gilbert mwakatuma vfrancis mwakyendenge 2021 tzhc 2588 31 march 2021

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 96 OF 2020 (Originating from the Decision of the High Court of Tanzania in Misc. Land Appeal No. 18 of 2013) GILBERT MWAKATUMA........................................APPLICANT

VERSUS FRANCIS MWAKYENDEGE.............................. RESPONDENT

RULING Date of last order: 20/01/2021 Date of Ruling: 31/03/2021 NDUNGURU J. By way of Chamber Summons, this court is moved to make correction of the date of the judgment in Misc. Land Appeal No. 18 of 2013. The application is made under Section 96 of the Civil Procedure Code (Cap 33 Revised Edition 2019). This application is supported by affidavit deponed by the applicant one Gilbert Mwakatuma. The grounds of this application are contained in two affidavits that of the applicant and of one Ezekiel Mwampaka learned advocate who represented the applicant in the said Misc. Land Appeal No. 18 of 2013 which this Court is called to correct the date of delivery of the its judgment. At paragraph 1, 2 and 3 of the application, the applicant states that, Misc. Land Appeal was set for judgment on 10/08/2017, that on the very date the trial Judge started delivering judgment in the presence of the parties but could not finalize it. The trial Judge adjourned it till on 11/08/2017. That on 11/08/2017 the trial Judge resumed to deliver the said judgment against him in the presence of both parties in the absence of counsel for the parties. But the trial Judge typed the judgment to have been delivered on 10/08/2017. That the same version is contained at paragraph 2 and three of Mr. Ezekiel Mwampaka learned advocate, but he is referring the date set for judgment was 10/08/2018 and that upon

adjourning the same was delivered to its finality on 11/08/2018. When the application was called up for hearing, Mr. Mushokorwa learned counsel appeared for the applicant while Mr. Simon Mwakolo appeared for the respondent. The respondent resisted the application by filing the affidavit in reply. At paragraph 7 of the respondent's affidavit in reply or counter affidavit he states that judgment in Misc. Land Appeal No. 18 of 2013 was delivered by Hon. Ngwala, J on 10/08/2017, that there was no typing error on the date. Submitting for the application, Mr. Mushokorwa learned advocate begged to adopt the affidavit as part of his submission. The counsel stated that parties are at dispute on whether the court delivered judgment on 10/08/2017 or on 11/08/2017. It is the counsel's submission that the fact the trial Judge has since moved from the station, the reliance has to be made to those who were in the attendance on 10/08/2017 and 11/08/2017 who are Mr. Ezekiel Mwampaka and Mr. Ngogo learned advocates. It is the counsel contention that from the affidavit of the applicant, the court judgment be corrected to 11/08/2017. Responding to the applicant's submission, Mr. Mwakolo learned advocate was of the argument that all what is said about Mr. Ngogo are hearsay statement from the bar it has no evidential value. As regards the affidavit of Mr. Ezekiel Mwampaka Mr. Mwakolo, learned

advocate was of the submission that, the affidavit reflects that the judgment was read on 11/08/2018 which is contrary to 11/08/2017 thus according to Mr. Mwampaka, he does not know anything about the judgment which was delivered by Hon. Ngwala, J (as she then was) on 11/08/2017. In his rejoinder, Mr. Mushokorwa advocate reiterated his submission in chief. On the varying dates contained in the affidavit of Mr. Ezekiel Mwampaka, Mr. Mushokorwa submitted that it was a slip of pen, but reading his affidavit as a whole particularly para 5 it is apparent that the deponent meant on 11/08/2017 and not on 10/08/2018. I had ample time to go through the parties rival submission. The question for determination is whether the application is meritorious. I am aware that Section 96 of the Civil Procedure Code under which this application was brought does not set down time limit. It provides that such correction which the applicant is sought can be corrected at time. Further the court can suo motto or upon application made by the parties correct such errors arising therein from any accidental slip or omission. The fact that the applicant and the respondent are the parties who are alleged to have been in attendance on when the judgment was delivered which is on 10/08/2017 when it was not finalized till 11/08/2019 when it was finalized. The respondent's position is quite different, he is of the

firm position that judgment was delivered to its finality on 10/08/2017. From such a competing situation the resort is to the court record, I saying so because the proceedings of the court may shed light as to what transpired especially taking into account that this is a court of record. The record reveals that the case was heard on 10/07/2018. The judgment was fixed to be delivered on 10/08/2017. The judgment of the trial Judge was signed 10/08/2017. The proceeding dated 10/08/2017 provides: Court: Judgment delivered in the presence of the parties and in the absence of the advocate. Crt: Right of Appeal to Court of Appeal of Tanzania explained. Sgd. A. F. Ngwala Judge 10/08/2017 From the above, the court process ended on 10/08/2017, there is nothing in the record which can move this court to believe that on 10/08/2017 judgment was adjourned till 11/08/2017. The court record is very clear. Having so said. I find the application is devoid of merit. I accordingly dismiss it. I order no cost each part to bear its own costs, due to the fact that the case has been in court corridor for a long time now. It is so ordered. D. B. NDUNGURU Date: 31/03/2021 Coram: D. B. Ndunguru, J Applicant: Absent For the Applicant: Respondent: For the Respondent: Mr. Mwakolo - Advocate Mr. Mwakolo - Advocate: I am for respondent I also hold brief of Mr. Mushokorwa advocate for the applicant. We are ready for ruling. Court: Ruling delivered in the presence of Mr. Mwakolo advocate for the applicant who also holds brief of Mr. Mushokorwa advocate D. B. NDUNGURU1 . JUDGE ^LvwM3^te/2021 % wigwsy /