Misc Civil Application No

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 171 OF 2023 MUJUNI LUKE KEMIBARO and BUBERWA DAVID KEMIBARO (Joint Administrators of the estate of the late Ibrahim Mussa Kemibaro)………………………………………………..…………………..APPLICANTS VERSUS THE ATTORNEY GENERAL……………….…………………...........1st RESPONDENT COMMISSIONER FOR LANDS………………………………….…..2ND RESPONDENT ALEX MAGANGA……………………………………………………….3RD RESPONDENT 24/10/2023 & 25/10/2023 RULING Kafanabo, J.: This application emanates from the judgment and decree of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam (hereinafter ‘this court’), in Land Case No. 27 of 2013 which also involved the parties herein. The application is made by a chamber summons citing Section 96 and Order XLIII Rule 2 of the Civil Procedure Code [Cap. 33 R.E. 2022] (hereinafter the ‘CPC’) as enabling provisions. The Application is supported by a joint affidavit of the Applicants. Brief facts of the application can be easily deduced from the said joint affidavit of the applicants filed on 19th April 2023. It is gathered that on 9th 1 August 2017, this court (Hon. Muruke, J., as she then was) pronounced the judgment in Land Case No. 27 of 2013 (hereinafter the ‘judgment’) against the 3rd Respondent. It followed that the applicants applied for certified copies of the judgment and decree which were, belatedly, availed to them on 15th December 2022. Moreover, the said judgment and decree had discrepancies in respect to dates and signatures. The judgment was signed by Hon. Muruke. J., (as she then was) but the decree was signed by Hon. Tiganga, Deputy Registrar (as he then was). It is further stated that the said decree contains omissions that make it derogate from being a correct and formal expression of the orders of the court as contained in the judgment. It followed that, by way of letters dated 24/01/2023 and 22nd March 2023, the applicants made follow-up with the deputy registrar of this court regarding rectification of the said decree, so that it marries the contents of the judgment. On 4th April, 2023 the deputy registrar directed the applicants to make a formal application to this court requesting for rectification of the alleged errors in the decree. The applicants complied with the directive of the deputy registrar and, thus, this application. 2 Now, therefore, the major issue for determination before this court is ‘whether the decree in question contains errors and or omissions manifest on the face of the record’, warranting rectification/correction as per the application. In the hearing of the application Mr. Victor Ntalula, Advocate, appeared for the Applicants and Mr. Francis Wisdom, State Attorney, appeared for the 1st and 2nd Respondents. The 3rd Respondent did not show up, and after a review of the record of the court, it showed that he has never entered an appearance since the institution of the matter in this court. Nevertheless, the Court proceeded in the absence of the 3rd Respondent in accordance with Order IX Rule 8 of the CPC, taking into account the fact that the application is simply for rectification of errors and/or omissions on the face of the record of a decree and, thus, will not prejudice the 3rd Respondent. Mr. Ntalula for the applicants, submitting in support of the application, adopted the contents of a joint affidavit of the applicants as part of his submissions. Further, albeit briefly, he submitted that applicants are applying for amendment of the decree because the contents of the decree vary with those of the judgment, especially on dates and signature. It was also his submission that the decree has omitted and/or does not contain a 3 major finding of this court which is in the judgment of Land Case No. 27 of 2013 dated 09/08/2017 before Hon. Muruke.J., (as she then was). According to Mr. Ntalula, the major finding which is in the judgment but not in the decree is in the last paragraph of page 8 of the judgment. Replying to the applicant’s submissions, Mr. Francis Wisdom, State Attorney, representing the 1st and 2nd Respondents was very succinct, in that, he concurred with the submissions made by the counsel for the applicants because the errors in the decree being complained of are crystal clear. He referred this court to Order XX Rules 6(1) and 7 of the CPC. He finalized his submissions by supporting the application and that the same be granted without order as to costs. Mr. Ntalula was satisfied with the submissions made and, accordingly, opted not to make rejoinder submissions. Having heard the submissions of parties, it is now for this court to determine the major issue as set forth earlier. The law that governs the contents of the judgment and decree is provided for in Order XX Rules 6(1) and 7 of the CPC. The said Rule 6(1) provides: 4 ‘The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim and shall specify the relief granted or other determination of the suit.’ The above provision makes it very clear that, among others, for the decree to agree with the judgment, the decree shall clearly specify the relief granted in the judgment. In the present matter, the decree is being faulted for lacking a very specific order granted in the judgment of the court, especially in the last paragraph of page 8 of the judgment. In that particular part of the judgment, the court states as follows: ‘In the end Judgment is entered on the counter claim as follows: Alex Maganga, his servant or any other person occupying the area under him being trespasser to vacate on plot number 69 Block C Mbezi Beach Dar es Salaam immediately from date of this judgment’ As reproduced above, the order is very clear and categorical but was omitted in the decree contrary to the dictates of the law. Under the circumstances, I find that the decree in Land Case No. 27 of 2013 did not agree with the judgment for want of a specific order granted by the judgment. 5 Moreover, Order XX Rule 7 of the CPC provides that: ‘The decree shall bear the date of the day on which the judgment was pronounced and, when the Judge or Magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree.’ In the present application, it is also a complaint that the decree bears a different date from that of the judgment. It is not in dispute that the Judgment was signed by her ladyship Muruke, J., (as she then was) and dated 09/08/2017, this is noted by a cursory glance at page 9 of the judgment. However, the case is different when a closer look is made at page 2 of the decree extracted from the said judgment where it is written, and reads: ‘Given under my hand and the Seal of the Court this 9th day of August 2018 ’ It is clear that the date of the decree varies with that of the judgment and thus contravenes requirements of Order XX Rule 7 of the CPC, and thus correctly faulted by the parties to this application. It follows without reluctance that the date of the decree should be rectified to marry that of the judgment. 6 Another complaint was that the signature in the decree is different from that of the judgment and that the decree was signed by Hon. J. C. Tiganga, Deputy Registrar, as he then was, instead of being signed by Hon. Lady Justice Muruke, J., (as she then was). This will not detain this court as much because Order XX Rule 7 of the CPC above referred provides that the Judge or Magistrate when he ‘has satisfied himself’ that the decree has been drawn up in accordance with the judgment shall sign the decree. Therefore, it is a requirement that a judge who signed the judgment shall also sign a decree. On the other hand, the exception to this general rule is found in Order XX Rule 8 of the CPC which provides that: ‘Where a judge or magistrate has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed either by his successor, a Registrar, a Deputy Registrar or a District Registrar’. It is not clear why the decree was signed by the deputy registrar whilst the Hon. Judge who signed the judgment was, by then, a serving Judge of this court. I, therefore, find that the decree contravenes Order XX Rules 7 and 7 8 of the CPC for being signed by a deputy registrar whilst the Hon. Judge who pronounced and signed the judgment had not vacated office. This court, after satisfying itself as to the mistakes in the decree complained of, and the subject matter of this application, answers the major issue for determination in the affirmative. However, I should point out that the errors, mistakes, and omissions observed in the decree in question are curable and may be rectified accordingly. Now, with a view to rectifying the errors and omissions in the said decree, this court resorts to the provisions of section 96 of the CPC which provides 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 of its own motion or on the application of any of the parties.’ From the provision of the above section this court derives a mandate to rectify its judgments, decrees or orders provided that they are due to clerical or arithmetical mistakes, accidental slip, or omission. Given the said mandate and circumstances of the case at hand, I find that the mistakes and/or omissions found in the decree in Land Case No. 27 of 2013 fall 8 squarely within the ambit of the said provision and this court proceeds to rectify the same as per the law. Therefore, this court settles for the order that the decree in Land Case No. 27 of 2013 be rectified and should contain the orders pronounced in the Judgment dated 09/08/2017 as follows: 1. Rectification of the orders in the decree: a. Alex Maganga, his servant, or any other person occupying the area under him being trespasser to vacate plot number 69 Block C Mbezi Beach Dar es Salaam immediately from the date of this judgment; b. Alex Maganga to pay general damages of 10 million to the third Defendant; c. Alex Maganga to pay the defendants costs of this suit. 2. Other rectifications: a. Date of the decree should be the same as that of the judgment, that is 09/08/2017; and b. The decree should have been signed by the Hon. Judge who signed the Judgment, but taking judicial notice that the Hon. Judge who signed the Judgment was elevated to the Court of 9 Appeal, the relevant decree should be signed by the successor Ruling delivered in the presence of Victor Ntalula, Advocate for the K.I.~ JUDGE 25/10/2023 10