ahmed j dhirani vs gulam hussein 1995 tzhc 706 6 november 1995

IN THE HIGH COURT OF TANZANIA AT DAE ES SALAAM CIVIL APPEAL NO.47 OF 1992 AHMED Z . DHIRANI APPLICANT Versus GULAM HUSSEIN .... ...... RESPONDENT JUDGEMENT MWAIKASu, J. THis is an appeal against che ruling of the lower court, (Mtotela, SRM) dated 30/9/92, whereby -Ghe application by the appellant „ . for Ghe Respondent to show cause wh; he should not obey uhe order of that court dace 20/5/92, . PR1:), to restore the applicant on che premises known as Royal Guest, was dismissed. In dismissing such application the presi learned magistrate based his decision on the ruling of that Oou A vMatui, PRM) da'Ged 11th Feb. 1991 and one dated 25/9/90 toge^b with the judgement of chis courc in Misc. Civil Appeal No.3 of 1991> (Mkwawa, J.) thao arose from che ruling of Matui, PRM da 25/9/90, which appears to have upheld such ruling. That, ho1' was an error because what "the applicant/appelant was seeking the enforcement of such court’s order (Matui, PRM) dated 2 0 /r following appellant's application for review of an earlier orac of that court (Matui, PRM) dated 11/2/91 which had ordered evir of che appellant. It is by his order dated 20/5/92 that she learned presiding magi (Matui PEM) ordered as follows: "Court: It ap:: e?-:;s the Respondent misled chis court into is .suing che eviction order for che^p is no decree for vacant possession consequently I rescind the aviction order and order that che applicant be restored in the suit premises forthwith,” It is such order for which enforcement was sought, and on-^ in his ruling dated 30/9/92, the learned presiding magistrate (Mtolela, SRM) ought to have considered and base his ruling. It appears that the learned magistrate did misdirect himse.1r' ' he did, due co lack of clarity when counsel for Ghe Applicf Appellant presented such application. For it is clear fro- record of the lower court that apart from making reference order e:p M ; P R T'r. that had rescinded the earlier eviction ... .. 2 and restored the tenancy of the appellant in "the suit premises, following appellant's application for review, there was no mention of the date of such order. Be as it may, -1 am satisfied that the complaint in the appellant's memo of appeal, as also represented before this court by Mr. Kashumbugu, counsel for the appellant, chat che learned presiding Resident Magistrate (Jitole la, SRM) had erred in law in considering che decision of Matui (PRM) of i1/2/91 ana 25/9/90, when what was at issue was the non-compliance of che said Matui's order of 20/5/92, which re-instated the appellant into the premises, is founded. 1 accordingly allow this appeal with costs, with an order that the lower court proceed to consider uhe appellant’s application f'or enforcement of such court’s order dated 20 / 5 /9 2 and come to an appropriate order, in accordance with the law. R.J. Mwaikasu Judge vated 6/11/95 At Dar es Salaam. Order: Judgment to be notified and read over to the parties by the District Registrar, High Court, DSM zone, at the earliest convenient date. R.J. Mwaikasu Judge 7/11/95 I certify that thi . _ ;rue copy of the original.