20090331 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REVISION NO. 2 OF 2008 CHARLES GADI & JOYCE K. GADI ................................ : .... APPLICANTS VERSUS NAPKIN MANUFACTURES LIMITED ................................. RESPONDENT {A revision from the Ruling of the High Court, Land Division of Tanzania at Dar es Salaam) {Longway, J.) dated the 9 th day of April, 2008 in Land Case No. 216 of 2004 KILEO, J.A.: RULING (In terms of Rule 37 (3) of the Court of Appeal Rules, 1979.) I have read the draft Ruling of Ramadhani, C.J. I agree that the dismissal of the Land Case No. 216 of 2004 on 20/7/2005 when it had been fixed for the first Pre-trial Settlement and Scheduling Conference under Order VIII A was irregular. All other proceedings which followed there after were a total confusion and must be quashed and set aside. I would order that all proceedings and orders flowing from 20/7/2005 be quashed and set aside and the case to proceed before another judge from th'e stage it had reached before the dismissal order. This means that the case in the High Court, Land Division will now proceed with a Final Pre-trial Settlement and Scheduling Conference under Order VIII B Rule 3 of the Civil Procedure Code. As this necessarily implies that the rights of the parties in this case are yet to be determined, I would not go further, at this revision stage, to order re-possession of the property by the Gadi's. This is not withstanding the fact that they were evicted through an irregular order. I would not order a re-possession at this stage being mindful of the fact that in the event the Gadi's eventually win the case, the grant of the prayers in their counterclaim will take care of any loss that they will have incurred due to the non-use of the godown. DATED at DAR ES SALAAM this 31 st day of March, 2009. E. A. KILEO JUSTICE OF APPEAL I certify that this is a true copy of the original. (P. A. LYIMO) DEPUTY REGISTRAR 2