c m nyirabu vs m p nyagaswa 1986 tzca 13 14 may 1986

IN THE COURT QF APPEAL OF TANZANIA AT PAR ES SALAAM CORAH; MUSTAFA, J.A.; MKAM^, J.A. And OMAR, J.A. CIVIL APPLICATION NO. 8 OF 1986 BETWEEN C. M, NY IRABU.......... ............APPLICANT AND M, P. NYAGASWA. . . . . . . . . . . RESPONDENT (Applica.tion for Additional evidence in Civil Appeal No. 14 of 1985 from the Decision of the High Court of Tanzania a.t Da.r es Salaam) (Ba.hati, J.) dated the 17th day of Januaxy, 1985 in Civil Case No. 61 of 1986 RULING MUSTAFA. J.A.s This is an application by the respondent in this appeal for an order of additional evidence to be ta.ken. The applicant alleges that the land in dispute wa,s within the jurisdiction of Mbezi Village which he alleges wa.s registered under the Village and Ujamaa Villages (Registration, Designation and Administration) Act 1975 at the material time, ^hat fa.ct was not made a. point in issue at the trial, and Mr, Mka.tte for the applicant submitted that it is an important legal point, and although no evidence was led at the trial, opportunity should now given for such evidence to be taken as it involves the question of consent or approval by the Village Council in respect of any disposition of land in a registered village, Mr, Mkatte submitted that such evidence wa.s omitted from the trial because of an oversight then on the part of the^counsel for the respondent, Mr. Mucca,da,m for the appellant in this appeal objects to the applica.tion. He eoatoniad that such evidence could and should _ 2 - have been adduced at the trial, and tha.t such evidence wa.s ava.ila.ble at the material time. He also sta.ted that it has not been established that such evidence was -n-ecvassary or important for the decision of the appeal• Even at the hearing of this application there is controversy as to whether the disputed plot is situated at Ke.we or the Mbeai Beach area. The location of the disputed plot is, at this stags, in issue. However there is a registered plan No* 17448 which puts the disputed plot in a certain area, V/e think that the additional evidence, if it pinpoints where the disputed land is, will be important and useful, If the plot is situated that in a village, the evidence / buch village is registered or not and whether such transfer of village land needs Village Council approval, or not, becomes relevant and indeed necessary for the determination of this appeal. In all the circumstances, especially in view of the legal point involved, we think we should allow the application for additional evidence to be taken. This Court itself will take the additional evidence. The deponent of the affidavit filed with the application for additional evidence Fidelis Paulo Kilulumo is to appsar before this Court oc due date to testify to the following ma.tters, and will be subject to cross-examination; (1) If and when Mbezi Village was registered and incorperated under the Village TJjamaa Act 1975. (2) Whether the disputed plot, as conta,ined in the registered plan No. 17448, is situated in the Mbezi Village, (5) How does Mbezi Village, if registered, approve a transfer of paxt of its land, assuming that the disputed plot is in Mbezi Village. The applicant is to take steps to summons his witness Pidelis Kilulumo to appear on due date after such date has been fixed by the Registrar. Costs of this application to be in the cause^ ES SALAAM this 14th day of May, 1986 A. MUSTAFA USTICE OP APPEAL L. M. MAKAME JUSTICE OP APPEAL A. M. A. OMAR JUSTICE OP APPEAL I certify that this is a true copy of the original. (J. H. MSOFFE) DEPUTY REGISTRAR,