20131204 TZCA Arusha1

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO, J.A., MASSATI, J.A., And MMILLA, J.A.) I CIVIL APPLICATION NO.11 OF 2012 NAUSHAD MOHAMEDHUSSEIN ............................APPLICANTS MOHAMEDRAZA MOHAMEDHUSSEIN VERSUS ARUNABEN CHAGGAN CHHITA MISTRY............................RESPONDENT IN THE MATTER OF INTENDED LAND APPEAL NO. OF 2012 BETWEEN ARUNABEN CHAGGAN CHIHHTA MISTRY.................................APPELLANT VERSUS NAUSHAD MOHAMEDHUSSEIN MOHAMEDRAZA MOHAMEDHUSEIN RESPONDENTS THE HON. ATTORNEY GENERAL THE ASSISTANT REGISTRAR OF TITLES MOSHI (Application to strike out notice of appeal in respect of judgment of the High Court of Tanzania at Moshi) (Nyerere,J.) dated 241h August, 2012 in Land Case No. 2010. RULING OF THE COURT 3rd & 5th December, 2013 KIMARO, J.A.: Mr. Loomu Ojare, learned advocate representing the applicants, Dr. Masumbuko Lamwai, learned advocate representing the respondent, 1 K 4-) and Mr. Karim Rashid and Mr. Mtuli Mwakesya learned State Attorneys for necessary parties (3rd and 4th respondents) in the intended appeal, were all in attendance when the application was called on for hearing. The learned advocate for the applicant requested for an adjournment because of a pending application in this Court Civil Application No. 24 of 2013 which has not yet been fixed for hearing, in which he is requesting for an extension of time to file additional written submissions to support -- - - - this application on the aspect of the jurat of attestation on the affidavit supporting his application. For this reason he was of opinion that the application was fixed for hearing prematurely. The learned advocate for the respondent conceded that as a matter of practice Civil Application No 24 of 2013 should have been heard first, before Civil Application No.11 of 2012. He said Civil Application No. 24 of 2013 relates to incidental matters in Civil Application No. 11 of 2012. He said he is aware of existence of conflicting decisions of the Court on jurat of attestation and he has not raised any objection on the jurat of 2 attestation in the affidavit of Mr. Ojare which supports the application. He said he was conceding to the application made by Mr. Ojare learned advocate, to have the notice of appeal struck out. Dr. Lamwai said since he appeared in Court to concede to the application, he requested the Court to make no order for costs and leave each party to bear its own costs. Mr. Ojare in rejoinder insisted that he should be awarded costs. On our part we consider the position taken by Dr. Lamwai in this application to be very helpful not only to the Court but also to the other parties involved. He has saved the time and costs for all parties involved in the two applications. He has also relieved Mr. Ojare from the burden of preparation for the hearing of Civil Application No 24 of 2013. For this reason we strike out the notice of appeal filed by the respondent in this application for failure by the respondent to take essential steps in time in pursuing the appeal. Given the reasons we have indicated above, we make no order for costs. It is accordingly ordered. 3 DATED at ARUSHA this 41h day of December, 2013. N.P. KIMARO JUSTICE OF APPEAL S.A MASSATI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I Cerfythat this is a true copy of the original. / F.J. KABWE DEPUTY REGISTRAR u izJ COURT OF APPEAL 4