20020801 TZHC Mwanza

IN THE HIGH COURT OF TAN'ZANIA AT BUKOBA (PC) CIVIL APPEAL NO. 9e OF 1991+ (From the decision of the District Court of Bukoba District at Bukoba in Civil Appeal No. 17/94. Original I(isha.nje Primary Court Civil Case No. 3 of 19930 ]3efore: A. Go MwarijR 1 Esq. RM) SWEET ELIAS 3UBERHA 0oooooooooo,0011ooooao<1oooooooe APPELLANT VERSUS GODFREY MUTAGAiflA oooco,r9oo('toaooooC'looooooooc•oo•oe RESPONDENT JUDGMENT MAS ANC HE 1 J. When this case came for admission before our brother Lugakingira J ( as he then was), he minuted: ~'Admit: The gist of the appeal is in para 3 of the memorandum, of the sentence underlined: 1 e The sentence that my brother Lugakingira J. underlined reads: 11 'rhat my appeal to the High Court was based on one point of law where I was referred to as a woman instead of a man. The rest of the judgment was in my favour; 1o The :1slip11 of calling the appellant a woman instead of a man has come about because the person who featured before the District Magistrate and the primary Court was the mcther of the appellant, a woman called Theopista Mushara. The appellant, actually, is a soldier with 'rPDF. He is currently stationed in Morogorq.. He sought out to redeem a ~_land and the respondent resistedo Het however, according to the record,never appeared in the two Courts in person,. He hnd sent his mother, the said Theopista, to act on his behalf,# He had, purported to do so through a power of attorneY:, which, actually, as I see it, is 22.£..• power of attorney at all. It is not signed by a magistrate. It rws no stamp. The whole document has just the name of Sweet Buberwa, the appellant, the soldier. In fact, 2 I am, surprised why the two Courts below hc\re acted on the basis of the worthless document. So, it is true that the appellant won the case., The consequence of winning the case is that the shamba is adjudged redeemed_ by himo I agree that the passage in the judgment which reo.ds: ti • • • According to Haya Customary law a woman has no right of inheritance. This being the cose therefore it is now up to the clan to decide on how to release it, this is to avoid the respon,lent to acquire title on redemption' 1 , Could bring some trouble to the appellant •. The truth of the matter is that the respondent referred to there, according to the record, is not Theopista, the lady, but the nppellant Sweet. If that is the case, Sweet is deemed to h,wc lawfully redeemed it. Let me say something: The slip that I am talking a.bout of referring to a person as a woman when he was n man is quite a common slip •... The slip could, therefore, have been rectified by the normal slip rule (section 96 of the Civil Procedure Code 1966) The co.se of Reniga v •.Jiyraj /J96'i.7 E.A. 700, at p.703 has held that: aA Court will, of r,r:-urse, only 8.f'ply the slip rule where it is fully se.tisfied th?..t it is giving effect to the intention of the Court at the time when judgment was given or, in the c.3se of e. matter which Has overlooked, \,,;here it is sat isficd, beyond doubt, e.s to the order which it would have made had tly~ ;:i,:-..ttr:-)r been brought to its attentionn. That passage is quoted with approval by Sir Charles Newbold Po in Lakhamshi Bros v Ro Raj~_and Sons {:i96fl E. A. 313, 314. In short 1 what Sweet or his mother should nave done, was to go back to the District Court and ask the Distrfot Magistrate to make 11;ecessary amendments.,. 3 The appeal is allowed to the extent thet the judgment of the district Court is amended. !3,CCordingly. / J. E ~- C. MASANC:HE - u'1IDGE At Mwanza, 1st August, 2002~ Order: This judgment is to be t;,ped w'1.d then sent to Dukoba., 'Ehe District Registro.r there should summon the parties and have the judgment rec.d to ther.10 JUDGE At Mwanza .. 1st August, 2002.