Modesta Mahando Matiko

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA MISC. LAND APPLICATION NO. 000031110 OF 2024 REFERENCE NUMBER 202412101000031110 {Arising from Land Case No. 4 of2023) BETWEEN MODESTA MAHANDO MATIKO and 27 OTHERS.............. APPLICANTS VERSUS NORTH MARA GOLD MINE LIMITED........................... RESPONDENT RULING 2?" March & April, 2025 M. L, KOMBA, J, In this application the applicants whose full names and numbers appear at the last page of this ruling are praying for this court to correct it decision (Mahimbali, J.) in Land Case No. 4 of 2023 delivered on 24th April 2023 by substituting the word 'RULING' appearing on the second and last pages with the words 'JUDGMENT ON ADMISSSION' and following correction of the said decision, this court be pleased to extract decree there to. The application was made by way of chamber summons premised under Page 1 of 9 section 96 of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC) and is accompanied by an affidavit sworn by applicant's counsel Mr. Juvenalis Motete. Upon service, respondents filed counter affidavit and preliminary objection. The PO was overruled and I proceed to determine the main application. Previously applicants sue the respondent in Land Case No. 4 of 2023 and pray for compensation which is fair and prompt basing on prevailing markets price as respondent forcefully evicted applicants from their land, they claimed for payment of TZS 9,786,000,000/=. Respondents (then defendants) filed WSD on 3rd March, 2023 in which he disputed the claimed amount of TZS 9,786,000,000/= arguing that it was exaggerated. However, respondents admitted that some of the applicants were yet to collect their compensation at the respondents account office and were invited to collect which is TZS 173.990.816/=. This court (Mahimbali, J.) on 24/4/2023 entered judgment on admission to the extent of TZS 173.990.816/= in favour of applicants as was from WSD by referring it as ruling instead of judgment on admission and no decree was extracted. Applicants wrote to Deputy Registrar requesting for correction in vain hence this application. Pspp5 nf Q When the matter was fixed for hearing applicants were represented by Mr. Juvenalis Motete and respondent had legal service of Ms. Rosemary Makori, both Advocates. Mr. Motete submitted that the application was filed under section 96 of the CPC which has three prayers; first the court decision on Land Case No. 4 of 2023 to be corrected on the heading which reads 'ruling' to be 'judgment on admission' and this court to extract decree from the corrected judgment and costs to be provided in favour of the applicants. He further prayed his affidavit to be adopted. For the purpose of keeping proper record of this court, counsel Motete prayed section 96 to be read together with Order XX rule 3 of the CPC which have procedures on how correction of errors and mistakes can be done and further supplied this court with CRJE East Africa Limited vs Lord Lerna, Civil Appeal No. 30 of 2023 in which the High Court draw guidance from NIC Bank Tanzania Limited and Another vs Samora Mchuma Samora Company Limited, Civil Appeal No. 340 of 2020 Court of Appeal of Tanzania when seated at Mwanza it laid down procedures at page 9 to 10 of their judgment. He went on submitting that correction of errors may be done by a separate order not a corrected version of the judgment. The cited cases Page 3 of 9 prove that application of this nature is a normal in courts that why applicants prayed for correction of errors. Mr. Motete submitted further on the second prayer that there is no ruling of the court without drawn order or rather no judgment without decree. He went on that on 24/4/2023 this court forget to extract drawn order in its ruling and applicants were just reminding this court of its duties. Counsel knew that awarding costs is discretion of this court, however he prayed for it on account that respondent conduct suggested that they were delaying the matter without good reason. He lamented, regardless that respondents were served with chamber summons and affidavit on 23/01/ 2025, they did not file counter affidavit on time which usually is filed within 15 days of service. When the first time the matter was placed for hearing, on 13/02/2025 is when they (respondent) applied for extension of time to file counter affidavit. Then, the matter was scheduled on 14/02/2025 but respondents were not ready till 27/03/2025 when the application was heard. He observed that determination of matter took more than a month due to conduct of respondent and applicants incurred unnecessary costs. He went on pointed the conduct of the respondent at 4th paragraph of counter affidavit when they depone that they are not aware if there is such Daaa A. nf Q ruling. He prayed their application to be found with merit and he prayed for costs. Ms. Makori resisted the application while praying their counter affidavit to be adopted and submitted that the application originated from Land Case No. 4 of 2023 which was finalized by this court on 28/08/2024 and later, applicants filed notice of appeal on 25th September, 2024 to the Court of Appeal, respondent filed further the notice of appeal in 11th September 2024 against the decision of this court of 28/8/2024. She was of the position that all the appeals emanated from this judgement and ruling of 24/4/2023. Therefore, so far as both parties have filed intention to appeal and the matter is before Court of Appeal, this court has no jurisdiction to determine anything. She cited that case of TANESCO vs DOWANS Holding, Civil Appeal No. 142 of 2012 CAT at DSM that once the Court of Appeal is lodge with Notice of Appeal, then HC cease to have jurisdiction unless on application for leave to appeal. She prayed this court to halt the proceedings. About the prayer for costs, she submitted that the first summons was to appear on 13/2/2025 and she insisted that on that date respondents prayed for leave to file counter affidavit. She resisted that they were no Page 5 of 9 abnormal conduct as to file counter affidavit party need leave of the court. She prayed the prayer for costs not to be allowed and the application as a whole not to be granted. During rejoinder by Mr. Motete submitted that paragraph 6 and 7 of counter affidavit has confused matters. He differentiates the decision of this court before Mahimbali J. delivered on 24/4/2023 and decision of this court (Komba J.) delivered on 28/8/2024. What applicants prayed to be corrected is decision of Mahimbali J. which was 24/04/2023 and was based on admission as found in WSD, this he insisted is not appealable and none of the parties show interest to appeal against that decision. What both parties intend to appeal according to him is decision of this court delivered on 28/8/2024 as found at paragraph 6 of the counter affidavit which have Notices of Appeal and prayed me to read attachment of the counter affidavit. He insisted that no party show interest to appeal against decision of Mahimbali J. regardless that it is non appealable. He went on that there are some circumstances parties filed notice of appeal but they don't appeal. Basing on the nature of the decision of Mahimbali J, the decision has errors and need to be corrected as the Court of Appeal might return it. However, Respondent did not submit on errors and he finds that to be admission and therefore, extraction of decree was admitted. About the costs he clarified that a party is required to file counter affidavit when served with chamber summons and affidavit, respondent noted was out of time that why she applied for leave and insisted that respondent is not supposed to be rewarded for her conduct. The application is objected by respondent on account that, both parties has filed notice of appeal and therefore this courts' hands are tied up. That assertion of Ms. Makori was seriously resisted by Mr. Motete that parties have shown interest to appeal against decision which was delivered on 28/08/2024 and not the decision which was delivered on 24/04/2023 which was admission made by respondents. I had time to read counter affidavit in which respondent claim that there is an appeal to the court of appeal. I find at paragraph 6 of counter affidavit respondent annex two notices of appeal, one filed by applicant on 25 September, 2024 and the other file by respondent on 11th September, 2024. From Paragraph 6 of counter affidavit, applicant intend to appeal against decision of Komba, J. issued on 28/08/2024 and not against ruling Page 7 of 9 delivered on 24/04/2023 by Mahimbali, J. The same applies to Notice filed the respondent themselves is against decision of Komba J which was delivered on 28/08/2024. None of the Notice refer ruling which was delivered on 24/04/2023 and I find this court is not barred to entertain the prayer by applicants. Further to that, I read ruling which is annexed under paragraph 3 as annexture, PAI of the applicant affidavit and find the ruling was delivered basing on admission done by respondent to some of the claims as found in plaint in which plaintiffs now respondents need not to prove any more. The ruling which Mr. Motete pray to be corrected was drafted under Order XII rule 4 of the CPC which provides that; 4. Any party may at any stage of a suit, where admissions of fact have been made either on the pleading, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may thinkjust. From Paragraph 3 and its annexture, I find counsel for applicants, then plaintiffs, prayed for judgment in admission and at page 10 of the ruling Q nf fl trial judge found the prayer was fit for judgment in admission. However, he delivered a ruling. I find that was a mistake which need to be corrected. Basing on the decision in NIC Bank Tanzania Limited and Another vs Samora Mchuma Samora Company Limited (supra) the correction is done by a separate order and not by composing the second judgment, this court is ready to make order for correction. I hereby order the word 'ruling' as it appear at page 2 of the ruling delivered by this court (Mahimbali J.) on 24/04/2023 in Miscellaneous Land Application No. 4 of 2023 to read 'Judgment in Admission' and the word 'ruling' as it appear at page 11 of the ruling delivered by this court (Mahimbali J.) on 24/04/2023 in Miscellaneous Land Application No. 4 of 2023 to read 'Judgment in Admission' and the decree to extracted. It is so ordered. DATED at MUSOMA this 08th day of April, 2025. M. L. KOMBA Judge Page 9 of 9