NA TZCA Der es Salaam

IN TIIS COURT OF APPEAL OF T.4.Nz..ANL'\ i\T Dl-\R ES SAL1Vil'1 ..,,,,,...:=-.,___,,__--.:.w-~--.--- CIVIL APFEAL NO. 51 OF 1997 iHCIIA£L LSbENI K'v.;EKil.. " • • • • AF?~LLAifi' AND 0 0 C' 0 0 IiESPONDENT (Anueal from a Ruling and Order of the High Court of Tanzania at Dar es Salaam) dated the 20th cl.ay of November, 1995 l in J"UDGKiNT OF 'l'I-D~ COUH'l' ..... &:.A-.a._.,._-r';'~...:.:..;:,,..=-......--_,_,_______ ·.1r.:..arc-.- The appellant was the loser before the District Court of Ilala ,, at Kisutu in a dispute over the mmership of Plot No. 92, Block ''D'; Fart 1 1 at 'l'abata iJl Dar es Salaam. \ •• •a• The respondent/plaintiff ~,as declared the rightful owner of the plot and was grcµ1ted all his prayers .. which included a prqier. for a p(;.,r~1anent injunction restraining the . . appellant or his workmen:-f1~om: de.:vilo}ing the plot and a demolition and eviction ordero ... From this decj:sion the appellant appealed to the High Court in Civil Appeal Hoo 76 of 1993. The appeal was dismissed on 5*8.94 for want of prosecution. 'l'he appellant then filed an application for re-admission of the appeal. The application was in j:;urn •'dismissed en 18.5095, similarly for want of prosecution. Undaunted, the appellant ne:y.:t .filed an application for re-admission, of the application for re-admiss_ion of the appeal. The applicati9n was .dismissed for lack of· ••• /2 2 merits on 20 .. 11.95. This appes.l is from that dismissal, leave to appeal having been granted by the High Court (Bubeshi, J.• ) on the same occasion. Learned counsel for the appellant, Mra 3hayo, filed and argued three grounds of appeal. The first ground asserts that Bubeshi, J. dismissed the last application injudiciously. 1v1r., Shayo submitted in this connection that there was sufficient ce.u.Ge to allow the application because Mr. Mbuya, learned counsel who was to argue the same, had first to attend the Kisutu court and was held up there contrary to his expectation., Mr. Shayo conceded, though, that Mr. Mbuya was imprudent i.-ri risking to go to Kisutu first, but submitted that Bubeshi, Jo should have been liberal since Mr. Mbuya turned up later on the same day only to find the application already dismissedo He sought to strengthen his argument with a passage from the 8th edition of SARKAH's CIVIL PROCEDUIIB, P• 736, where it is stated~ 'l'he question is not whether by hwuan possibility, being wise after the event he could not have got i.-ri time to the court, but whether he honestly inter.ded to be in court and did his best though '' in his o\-m stupid way to get there in , . cimeo In reply to the argument, the respondent, appeari.11g in person, submitted that Mr. Mbuya was not diligent but had been a habitual abs en tee from the commencement of the suito We have given consideration to the contending arguments and we can say at on·ce that ther8 is merit in the respondent 1 s side. To begin with, Bubeshi, J. fully considered. almost similar arguments by Vir. Mbuya and rejected them. She observed th.at twice he had absented himself from •.• /3 3 the hearing of the application, that he had no regard for the High Court's ,, precedence over district courts, and that even the appellant's son who was in court when the application was called oht did not report that Mr. Mbuya was on his way, but merely said that he was listening in on behalf of his father. We think, with respect, that e;iven this scenario, it is incorrect to say that the learned judge reached her decision injudiciously. By enumeratine these factors, it is evident that she gave careful consideration to the matter before 1~eaching her decision. We cannot see how liberal she could have been when she did not lmow ,that Mr. I1buya would have turned up. That aside, there is considerable truth in the responcl.ent 1 s charge. We had the opportunity to examine the entire record and cannot help observing that Mre Mbuya 's unexplained absences from the time he got onto the suit make saddening reading. On the same page of Sarkaris work cited ,, by Mr .. Shayo, it is also stated: ;1Lcss leniency should be shown to pleaders than to parties seci.~g that it is a pleader's business to attend court regularly a.'1d to provide suitably for meeting his daily engagements .'i, Mro Mbuya failed to provide suitably for meeting his daily engagements. We reject the first ground., The second ground turns on the merits of the dismissed appeal. It is stated that the trial court did not take the appellant's evidence from a land officer on the revocation of the respondent's right of occupancy• The purpose of this evidence was presumably to show that the appellant had acquired a valid title over the disputed plot. The second ground of appeal therefore contends that the learned judge erred in holding that the issue of revocation was sufficiently considered by the trial court. Replying to this, the respondent drew the Courtts attention to the appellant's various annextures in the record of appeal pertaining to the revocation. It should first be poi..."lted out that Bubeshi 1 J. considered _\ ••• /4 4 the fact that the land officer did not te~tify and observed that the I appellant failed to produce the witness despite several adjournments. That is true, in fact on at least one occasion the trial magistrate vacated his order to proceed to judgment :in order to enable the land officer to testify but the appellant failed to produce him. As the respondent also argued, the appellant could have taken out a court summons to coillpel the officer 1 s appearance if he was keeping away but the appellant did not. We think the appellant had himself to blame in these circumstances. What is more pertinent to ask is whether the ! absence of the land officer's evidence ort the revocation occasioned a failure of justice, in other words, whether that evidence, if received 1 would have tilted the scales in the appellant's favour. It does not appear so. The documents in the record ;f appeal, PP• 68 and 79 respectively, show that the respondent's title 1over the disputed plot was revoked on 10.2 .. 92 and that the appellant was offered a right of occupancy ovor the same plot ~n 28.2.90. In other words, the offer was made to the appellant while there was a subsisting title over the plot. ~he omission of this evidence did not by any stretch of imagination prejudice tho appellant; on tho contrary, it was .evidenCG in the rQspond,ent 1.s In the third and final ground it is suggested that the trial was a nullity ruid the Court is invited to invoke its revisional powers. Mr. Shayo stated tr.at the suit was tried in the Resident Magistrate's Court contrary to section 22 (2) of the Land Ordinance (Cap. 113) 0 11he subsection requires all claims, other than claims against the government, arising under the provisions of the Ordinance in respect of any rights act1uired under a right of occupancy in respect of land situate within the jurisdiction of a dist~ict court, to be prosecuted before such court • ••• /5