NA TZHC Simon21

I ,; , } •] ..... > •., • {;, ·, IN TH.EHIGH COURT OFTANZANiA ~ . . ' . . AT DAR ES.SALAAM .. f /t;ir,·f . ~;. MISCELLANEOU~;CtVIL APPLICATION . NO. 75 OF 2011 -._" , HAMAD SHAAM E HA'SSAN .... •·~ .............................APPLICANT -.; ~ ~-?.·· ·<·VERSUS . -~. ' ,.,L~ .. .: ' . . ST MWAMPEMBA SHAMJt';~:._ ..........f~-~ .............. 1 ~ ~ .

RESPONDENT ' . .· . · .t' ND . . HASSAN SHAAME HASSAN ....... i .................. 2 RESPONDENT (Original Civil Appeal No. 71 of 2008 of the District Court of Ila/a at Samora Avenue an~M~dai ya Tal~{(Na. 49/2007 Bugurun, R{tmary ;.,... . Court)\.. .· .

RULING Rugazia, l. ~:' The applicant filed an applica~ion '\ for. ~xtension of time to file ' revision proceedings in respect of the deciSion of the Primary Court ' ., ~ \_Vhich was upheld by the District Court. The said decision arose from a Matrimonial Cause between the two respondents. Th-e said ..,. decision was that the matrimonial . house be divided equally. , However, the applicant claims to have an interest in that house in that the second respondent who is his blood brother is the one who purchased the said house. According to him, their parents died \ leaving behind real property in Zanzibar and ·_..Kigamboni plus four ·fishfng boats. The two brothers sold a clove farm in Pemba and a 1 land at Vingunguti. -~Th~.:~s~ld transaction was executed by the second y ' . . . respondent because -t., ~. . .' the elder brother . •. (applicant) spends • much of his . . . . . . ' time in Kilwa where 'he conducts '.~--. fishing business. : It was submitted that·. the disputed hoLJse was constructed under supervisioh of the young brother . but :the -.·,··· appHcant bought ·, •,. -•; -~- .·: . . . -;;.J_··.\ . : . .· ·, . . windows and doors from Kilwa and, also,.· timber,~md . -~ iron sheets from . ·-;,._,,,!.·_ . . .. . . , ·•_. ! Buguruni. When the house was ready Jor,:;e:,ccupation both brothers .. -·-: ·_. .. : · •. · moved in with their families. The applicant's-·further

submission was that the 1st respbndent maintains in her counter affidavit that the applicant contributed nothing to the construction of the said house. Another fact which was pointed out is that the house has a licence of occupancy which is in the names of both the applicant and the second respondent. The applicant contended that as he was not a party to the matrimonial proceedings he could no take any action; and that he only became aware when the said house was being valued. Having became aware at that stage, the applicant asserted, the only option 2 ·.. :: _- (!_.... for him was to file a .f,tevision to this ~ourt sjnce he could not appeal. • • •• •• • .r • The applicant's .. coun1et\,~~ferrecL . me to the case of Attorney . "; General vs:·M,aalim . .. .,, · .,. ...' Kadau & 16 . Others (1997) TLR 69 where it _,· . was resolved that:~f·p·ersoq \'.Vflc{is ndt a party to the. proceedings can only file a re~'sibn and nof an>·appeal. . . l;be ': ,···· learned counsel . strenuously argued ' that if. executidn of the. Jowe/c6urt's -· order is to .• . . . . -· · be effected,it is bound to interfere with the . . . '}: . . . . ·• . r~ts of the applicant in ~ ..·.·;~~->-: ' .. the house he is occupying .. It W,a's\'~H\~tefore prayed that the application be aJlow·ed. Finally, the applicant stated that it is a question of fact that if the house is left to be disposed off ( sic) the

family of the applicant will be rendered homeless. I was therefore urged to halt the sale proceedings until the issue of ownership is resolved. In rebuttal, the first respondent submitted that the application has no merit and that the applicant has nothing to do with the matrimonial home. She made reference to section 79(1)(c) of the Civil Procedure Code, Cap. 33 R.E 2002 which provides for grounds 3 ...,<·_,::·-, '\·- ' ' .. ,. -~·:·.:.. , f{ .· upon which a RevisioB\rn~y be made::_ Sh¢ was bf the vi~w that no grourids have been esfubit~~d by the a;plicani: to move the court to . r.. '.'::! • / . . ~-~ grant the app1isation._ ;11 supposed to··:collnter on . th~ ieqsbni" for;·d~lay:·:\~o:·file the same . • ·• · •••1; ·;:·;..:}>/ ·:· ..: ·. / , ·.:.\•_'__'~ . :. ·.' ',' .·-~ : According to the applicant, reasclns forthef;de.layare because he was . r •,• , . . not a party to the'-,rpatrimonial procee~i_ng:$::,and, ·also, he spent most .... : : .. (.~. of the time in K.iJW9 where he conducts business. As it is, these reasons are not controverted and they are weighty. On the issue of stay, it is said and again undisputed that the applicant and his family are staying in the house. This being so, any execution is most inevitably bound to have him evicted therefrom. It is for this reason that I proceed to grant a stay pending hearing of the intended application. I also grant the application for extension of time to file revision proceedings. 4