19881104 TZHC Dar es Salaam

/ IN THE IITGII COURT O:D' TANZANIA

AT DAR ES SLLAAN CIVIL APPEAL NO. 20 OF 1986 (Original RM Civ.,C. lfoo213 of 1985 - IDPs Court Kisutu DsM) ABDALLA SEI.,IDWJ ALLY ~ u o ,~ o o -o o o o • o o t, ,, c ,, -;, o " o o ,o " ~ • e o o o o tJ o o o o -o e <" o a, .APP~LAIJ'T · (Original Plaintiff) versus MOHAMED I<IJLEBYA •• , •••• ., • ~.,, ••• ., • o. o • • • • • , • ~ • • • • • • < • • • • • • • • • • • • RESPONDENT (Original Defendant)

JUDGEMENT ¥.!AINA 2. J. This is an appeaJ. against the decision of the Court of resident Magistrate in which a consent judgement uas entered in favour of the appellant. I must state at the outset that I found this appeal 'very extraodinary bec~use the person who was successful in ·che trial Court is appealing against -!;he decision of ·che trial courto The reco:cd of the lower oourt shows that the appellant Al:xlallah Selemani Ally1 :filed a suit th.roug:1 his advocates, Mwalrasungula & Company, claiming the sum of shs. 116 9 300/= being money which the appellant paid · to the respondent Mohamed Kulebya, 9 for a plot and some building materiaJ.s., On 5 June 1986 the parties appeared before the Resident Magist:cate. A consent juclgment was entered in favour of the appellant, for the amount claimed; and an order for payment of the docretal amount was made, also by consent. The appellant said he was present in court when that consent judgement was entered. But he now seys that b.e does not want the money. All he wants now is the certificate of occupancy fox- the plot and the building materials as well as the foundation on the ploJli, so that he ma;y constract a house there. It is trite law that parties are bound by their pleadings. The appellant sued for refund of the money which he had pa.id to the respondent, and judgement was accordingly entered in his :favour., I:f he changed

his mind before judgement was entered, and wanted the plot and the building materiaJ.s, he would have applied to amend tho plaint and sue for specific performance of the contract. An appella.lhe Court cannot amend the plaint and dec,icle issues ullich were not before the trial Court. Tb.is Court cannot therefore grant to tho appellant a relief which he did not claim in the lower Courto The appeal is devoid of merit and it is dismissed with costso W.J. MAINA

JUDGE Dar es SaJ.aam 4th November 7 1988 Appellant present in person Respondent absento I certify that it is a true and.