Jones Magoge Matiko

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA CIVIL APPEAL NO. 000025366 OF 2024 CASE REFERENCE NUMBER 202410091000025366 (Originated from Civil Appeal No. 01 of2023 at Serengeti District Court) JONES MAGOGE MATIKO................................................................. APPELLANT

VERSUS KENEDY CHACHA............................................................................... RESPONDENT

JUDGMENT 25th & 28th February, 2025 M. L, KOMBA, J,: Above named appellant was sued by respondent together with other two people at the Serengeti District Court for the breach of contract which was signed between the two on cost sharing basis. He claimed for specific damage, general damage and interests. From the plaint, respondent was denied access to the mining field which was reconditioned and or modified as per term of the contract signed between the two on 09/07/2020. It was alleged that appellant has allowed other two people the access at the mining field with exclusion of respondent who incurred costs of up keep of the field. Page 1 of 6 Following that fracas, respondent sued the appellant and the trial court after analyzing evidence adduced during trial was convinced there was a valid contract between the parties and the terms were breached by the appellant hence entered judgment and decree in favour of the respondent. The trial court ordered the 1st defendant who is appellant herein to pay respondent specific damage to the tune of TZS 35,000,000 and general damage to the tune of TZS 10,000,000 and interest. Appellant was not amused by the decision of the trial court he has therefore, approached this Court through the instant appeal to challenge the decision of the trial court and its decree. Petition of appeal lodged by the appellant before this Court earlier on

contains five (5) grounds of appeal. However, for reasons to be apparent shortly, I will not reproduce them here but essentially, the appellant is challenging the jurisdiction of the trial court, decretal sum awarded and quality of judgment. At the hearing of this appeal, the appellant enjoyed the service of Mr.Edson Philipo, learned counsel while the respondent was represented by Mr. Paul Obwana, both advocates. When called upon to expound on his grounds of appeal, Mr. Philipo informed this court that he abandon the second ground of appeal while opting to start his submission with the 5th ground. He was Page 2 of 6 brief that the trial court errored in the judgment as there were only two parties reflected in the judgment that is; plaintiff and defendant but in proceedings record show there were three defendants (1st, 2nd and 3rd defendants). Reading the record, he submitted that there is nowhere indicating the pleading was amended to reduce number of parties while in the judgment there is no reflection of other parties. He was of the firm submission that the judgment is wrongly drafted. Responding to counsel for appellant submission, Mr. Obwana was of the position that there is no error in trial court judgment on number of parties as judgment is generated from the Electronic Case Management System (ecms) and it is the system which pick what to be featured on the cover of the

judgment. To him the judgment was well drafted and delivered. I had time to read the complained judgment of the trial court. The said judgment was delivered on 17th July, 2024 in the presence of plaintiff and 1st defendant while 2nd and 3rd defendants were noted to be absent. The judgment was attached to the petition of appeal together with decree extracted there from. The decree indicated only two parties, Plaintiff who is respondent herein and the defendant who is appellant. The rest of the defendants were featured in decree. Page 3 of 6 The decree shoulder up the burden of settling the decretal sum to 1st defendant who is appellant, however,the extract is not correct as pleadings show three defendants and there is no court order on removing some parties to that suit. It goes to the judgment which on the first page indicate there was one defendant, Jones Magoge Matiko while in the pleadings there was three defendants. In Salim Amour Diwan! vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023) where applicant was seeking for extension of time so that he can file application for revision. Before hearing of the said application, counsel for respondents drew the attention of the Court to the fact that the second respondent who has been made a party in that application was

not a part in the proceedings below, and therefore, he sought for the directives of the Court in that respect. The Court of Appeal directed that names in proceedings or pleadings should not vary unless there is court order and further clarified that Court record should not be altered as parties wish unless there is leave of the court. In the appeal at hand, it is not the parties who file an appeal with addition of or less parties as were in lower court, it the trial court which make Page 4 of 6 alteration of the parties. I find the principle is the same, names and position of parties should not vary even in judgment unless by application of the parties and court order thereto. See Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (supra). Court records are considered authentic and should not be easily altered. Court record has been defined by the Court to include a citation of parties' names as they appear in the proceedings. Mr. Philipo submitted that proceedings revealed there was three defendants but judgment reflected only one defendant. Clearly, my reading of the record, it is quite obvious that defendants in a plaint as well as WSD were Jones Magoge Matiko as 1st defendant, Joseph Kihungwe @ Mchaina as 2nd defendant and John Matiko Chacha as 3rd Defendant. Parties in the judgment and decree are not the same as

they appear in pleadings. In Isaack Wilfred Kasanga vs Standard Chartered Bank Tanzania Limited, Civil Application No. 453/01 of 2019 It was held that parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that. Page 5 of 6 In the result, I find and hold that, the appeal before me is incompetent and I hereby struck out. Given the circumstances that led to this outcome, I make no order as to cost. M. L. K BA Judge 28th February, 2025 Page 6 of 6