19980312 TZHC Dar es Salaam

IN THE HIGH COIT.RT OF TANZANIA ' AT DAR ES SALAAM CIVIL APPBAL NO. 54 OF 1997 ALYKHJJ.N POPAT ·••ooo••················••o•APPELLl\NT VERSUS NATIONAL HOUSING CORPOR/\.TLON -. • o • • . •. • o • .RESPONDENT JUDGMENT ~ckanja 2 J. The appellant lodged a civil action against the respondent as a p~emptive measure against a threatened eviction by the respondent. It was a suit for a declaratory judgment that the plaintiff was a tenant of the defendant. It is not necessary, for the purpose of this judgment, to delve into the pleadings in detail. Suffice· it to say that soon before ' ---the proceedin~ were instituted the appellant .approached respondent to inform them that he was due to travel abroad for treatment. The defendant admits that it was so in paragraph 3 of the written statement of defence where it is avered that:- 11 3. The contents of paragraph No. 4 are admitted to the extent that the_Defendant allowed t~e plaintiff to to to abrdad "for treatment and left the suit premises rin-to JuJy - -1994, but the plaintiff from that time todate has not returned back to reoccupy the suit premisesn (Quo~ed verbatim). /J\ The record shows that -the appellant went to Canada for med•ical q. ' treatment. Several developments took place while the plaintiff was away~ One Kar_im Ladha, purporting to have lived in the suit premises with the plaintiff.applied for leave to be joined as a party. On the other-hand one Victoria Mkamka successfully applied to be joined as a c°""defendant. . . It is what transpired in Karim le.dha's application that has q bearing on this appeal Ka.rim la.dh~' s application was not suc,cessful. That applica.t ic:. was considered by the trial court to be nothin~ but de.laving_ tactic .d final· C l'laVJ.ng oeen sa1 • to the ~ -•. determination of the suit. Very little elfi-8 suit was also - I dismissed. . . .• 2 All along Mr. Maftah, learned counsel, had been appearing for the plaintiff and now for the appellant~ He was present when the suit was dismissed. Mr. Mniwasa who advocated for the defendant and now the respondent is not recorded to have applied for the dismissal of the suit. So the trial court dismissed the suit suo motto. The grounds on which the dismissal of the suit is based are contained in what the learned Principal Resident Magistrate refers to in her ruling as the background of the caseo Tiiat background forms part of the third paragraph ofth ~ rµl~g~ I will reproduce the mo~t relevant part:- ., "As shown above the suit was filed on 28/3/95. By June, 1995, this court ordered the case 'to proceed !X parte by oral evidence because the defendant de:faulted appearance while being well aware of the ~) case. The order could not be effected as the court was told that the plaintiff ::vas outside the country •• •" I have myself examined the-record and I have found nothing in the proceedings that suggests that the plaintiff could not prove his case .!;_X )2arte because of inaction. He was all along represented and there is nothing on record that shows that the trial court ever fixed the case for ;;.~rte proof as it had ordered. In any case,• ,it is apparent from the record that the court was unable to proceed 1vith the main trial because it was bogged down by chamber applications which took too long to decide. One of those applications has ,,; yet to be decidedo This is the application by the respondent in which it sought an order of the trial court to set aside the order to proceed <";.~ ;2arte. This application was presented for . -{/ling on 25th July, 1995. One wonders how the plafutiff could have lead ~idence in the !,X :g_~t:., proof of his claim while the above application stood undecided. If anything therefore, it is the court that is to blame 'for the delay•. ' The order by which the suit was dismissed has aggrieved the plaintiff. ' . in the first ground he contends that the trial court's dismissal of the sui. t 1s . erroneous, : :.. , · · . ·.. It 1s . argue.d in . t he second ground t ha t the trial • court did not ~ct· fair~y wh~n it determined the eounter claim in favour of .the i ' defendant without having heard'the plaintiff on the matter. After hearing learned · cou.nsel who have advanced rival propositions when arguing the appeal I find 1 ~J there is no doubt that the ord.e;P dismis,sing the suit is wholly unjustified. .. • ~ j., '. 2 " So is the decisio~ of the court to proceed to determine the counter cla.im without first hearing either of the parties or their advocates on the matter. The appeal would, in these circumstances, succeed. Upon the foregoing considerations the appeal is allowed. All orders of the trial court that have beeri the subject of this appeal are set asideo It is directed that the record of the trial court be remitted to that court so that the undecided application, the suit . and the counter claim be heard interparties. The appellant shall have his costs. Delivered •. JUDGE .1£pearanS= Mr. Maftah: Fp:-:- ..'.ppella..'lt Mr. Mniwasa/Mr. Maftah ~ For Respondent • ..' . ' ·, t