olive oswald mosha vs roman selasin swai 2023 tzhclandd 17162 29 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 542 OF 2023 (Arising from Land Appeal No. 240/2023) OLIVE OSWALD MOSHA........................................................................ APPLICANT

VERSUS ROMAN SELASIN SWAI................. 1st RESPONDENT FREDRICK JERY HUNT................................................................ 2nd RESPONDENT

RULING 29/09/2023 to 29/11/2023 E.B. LU VAN DA, J In the memorandum of review, the Applicant is seeking review of the judgment of this Court in Land Appeal No. 240/2023 dated 25/08/2023, on the following ground: That, having found that the appeal has merit, instead of saying "the appeal is allowed", the learned Judge in the last paragraph (final words) of his judgment slipped into an error by saying "the appeal is dismissed" Mr. Stephen Mosha learned Counsel for Applicant, submitted that having found that the appeal has merit, the learned Judge unfortunately slipped into an error by dismissing the appeal instead of allowing the appeal, arguing it is an error and is apparent on the face of record which the Judge is mandated i in law to rectify the same. He cited Exim Bank Tanzania Limited vs Trulite Investment Ltd & Three Others, Civil Application No. 446/16 of 2020 CAT. Mr. Edward George Mtaki learned Counsel for Respondent, submitted that the court's decision to dismiss the appeal constitutes the ultimate conclusion in the judgment, arguing it cannot be labeled as a clerical error, for reason that nowhere in the judgment that the court has stated the appeal has merit. He submitted that upon review the judgment there is no explicit indication that the court had intended a different order within its judgment. He submitted that the judgment does not contain statement from the

court indicating that the appeal holds the merit as asserted by the Applicant. He cited Chandrakant Joshubhai Patel vs Republic [2004] T.L.R. he submitted that the Applicant has not succeeded in showing that the appeal in question was found on a manifest error. It is the law that any person considering himself aggrieved by a decree, on account of some mistake or error apparent on the face of the record, may apply for review of judgment to the court which passed the decree, see Order XLII rule 1(b) Civil Procedure Code, Cap 33 R.E. 2019. 2 In the impugned judgment, the Applicant (Appellant therein) raised four grounds of appeal. At the outset of my findings at page eight second paragraph first line, I endorsed a conclusion that there is merit on ground number one. After canvassing ground number one, at page thirteen I ruled the adumbration in ground number one to have taken into board grounds number two, three and four, meaning was too meritorious. However, at the final verdict of my judgment, I proceeded to dismiss the appeal. To my view, having ruled all grounds of appeal to be meritorious, it cannot entail dismissal of the appeal. This is a manifest error on the face of records. It needs no more interpolation or discussion. The findings are obvious as to where I was heading to in my landing. I therefore rule that there is a sufficient ground for review. The judgment and decree dated 25/08/2023 in Land Appeal No. 240/2023 is hereby reviewed to reflect that the appeal is allowed. The application for review is granted. No order for costs. 3 Ruling delivered through virtual court attended by Mr. Fredrick Mpanju learned Counsel for the Applicant and Mr. Edward George Mtaki learned 4