omary rajabu vs juma sultani langeni 2001 tzhc 11 28 june 2001

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM PC CIVIL APPEAL NO.94 OF 1995 OMARYRAJABU ........................................ APPELLANT Versus JUMA SULTANI LANGENI ................ RESPONDENT RULING CIIIPETA. J.; Omari Rajabu is an appellant in (P.C) Civil Appeal No.94 of 1995, which is still pending. Before the appeal was fixed for hearing, the appellant filed the present application seeking an order for the recording o f additional evidence. The application was opposed by the ^respondent. The learned advocates of the parties filed written submissions. I have carefully considered the affidavit, counter affidavit, and the written submissions. In my view the crucial question is as to whom the house in question belongs. The evidence sought to be adduced additionally is crucial, and it appears that it came to be discovered much later, most probably due to the illiteracy o f the applicant. The evidence, if believed, could throw important light which could influence the result o f the case. As was pointed out by Denning, L.J., in the case o f Ladd v. Marshall,’ (1954) 1 W.L.R. 1489atp .l491! 3 To justify the reception of fresh evidence ... three conditions must be fulfilled: first, it must be shown that the evidence could not be obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably/^have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” In the instant case, the circumstances show that the evidence sought could not be obtained with reasonable diligence for use at the trial for reasons given above. Secondly, bearing in mind that the evidence is largely documentary relating to public records, it would probably have an important influence on the result of the case as it would go to the root o f the question o f ownership o f the property in dispute. Thirdly, the evidence is presumably believable, though perhaps not incontrovertible. For these reasons, I hereby grant this application and order that the additional evidence shall be recorded by this court to eschew further delay. Costs shall be in the cause. B. D. CHIPETA JUDGE 23/6/2001 Coram: F.S.K. Mutungi-DR flfl For the Appellant: Mr. MheaLMhango For the Respondent: Mhango for Mr. Magafu CC: Maurice Court: Ruling read this 28/6/2001 in Court before Mr. F.S.K. Mutungi-DR in the presence of Mr. Mhezi Mhango the appellant/applicant also holding brief for Mr. Magafu from the respondent. (Sgd): F.S.K. MUTUNGI DISTRICT REGISTRAR 28/6/2001 Order: Mention In chambers on 11/9/2001. (Sgd): F.S. MUTUNG1 DISTRICT REGISTRAR 28/6/2001 1/9/2001 Coram: B.D. Chipeta, J. For the Appellant: Mr.Magafu For the Respondent: Absent CC: Emmy Order: Hearing on 15/11/2001. Respondent to be served. B. D. CHIPETA JUDGE 11/9/2001