20020801 TZHC Bukoba

IN THE HIGH C01JRT OF TANZANIA AT BUKOBA (PC) CIVIL APPEA°L NO, 9~ OF 1994 (From the decision of the District Court of Bukoba District at Bukoba in Civil Appeal No~ 17/94. Original Kisha...'1je Primary Court Civil Case No.· 3 of 1993. Before: A. Go Mwarija 1 Esq. RM) SWEET ELIAS BUBERWA ooooooooooooe•oooooooC10000000 APPELLANT VERSUS GODFREY MUTAGAH'lA ■ oooo ■■ oo ■ o ■ ooo ■ oooo ■■ ••••••-•~ RESPONDENT JUDGMENT MASANCHE, J& When this case came for admission before our brother Lugakingira J (as he then was), he minuted: IIAdmit: The gist of the appeal is in para 3 of the memorandum, of the sentence underlined: 1 • 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 t_he judgment was in my favour• 1 • The :islip11 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 mother of the appellant, a woman called Theopista Mushara. The appellant, actually, is a soldier with TPDF .. He is currently stationed in Morogoro. He sought out to redeem a~~~ and the respondent resisted. He, however, according to the recor~never appeared in the two Courts in person. He had 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~·- power of attorney at all. It is not signed by a magistrate. It h~s no stampQ The whole document has just the name of Sweet Buberwa, the appellant, the soldier. In fact, 1) 2 ... I am, surprised why the two Courts below h~ 'Ve acted on the basis of. the worthless document. So, it is true that the appellant won the caseo The consequence of winning the case is that the shan,ba is adjudged redeemed by him~ I agree that the passage in the judgment which rends: 11 • • • 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 relee.se it, this is to avoid the respondent to 1.3.cquire title on redemption", 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, bi,t the appellant Sweet. If that is the case, Sweet is deemed to hevo lav1fully redeemed it. Let me say something: The slip that I 3.m talking nbout of referring to a person as a wonmn when he was n mnn is quite a common slip. 0 The slip could, thorefore, have been rectified by the normal slip rule (section 96 of the Civil Procedure Code 1966) The ce..se of Reniga v •. Jivraj [}.96rJ.l E.A. 700, ,-;_t p.703 has held that: 11 A Court will, of course, only ::i.pply the slip rule where it is fully satisfied that it is giving effect to the intention of the Court at the time when _judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attentionn. That passage is quoted with approval by Sir Charles Newbold Po in Lakhamshi Bros v Ro Rajan y.nd Sons !}96§7 E. A. 313, 314. In short, what Sweet or his mother should nave done, was to go back to the District Court and ask the District Magistrate to make necessary amendments. 3 The appeal is allowed to the extent thE,t the judgment of the district Court is amended accordingly. JUDGE At Mwe.nza, 1st August, 2002. Order: This judgment is to be typed e.nd then sent to Dukoba. 'i'he District Registrar there should summon the parties and have the judgment read to themo JUDGE . ' At r~w~za. /, 1st· August, 2002. ,- '