20000726 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM ' MJ:SCELLANEOUS CIVIL .APPEAL N0~6 OF 1995 (Original Housing Appeal No.85 -Of 1993) SEIFI HOUSEHOLD STORES LIMITED••••••• APPELLANT VERSUS NEV! MABATI STORES .... •.•........... RESFONTIENT •.• JUDGMENT BUBESHI 1 J: In this appeal there are two grounds raised by Mr·. Maira learned counsel advocating for the appellant. These are that:- the learned deputy Chairman erred in law and in fact to hold that there was an appeal prpperly before the Housing Appeals Tribunal and thereafter proceeding to quash the proceedings and set aside the judgment and decree, the honoura'!_;le llppeals Tribunal had no jurisdiction under the circumstances tc• order re-tria1. ,Counsel were ordered to file written submission; appellant by 17/3/2000; resr,ondent by 5/4/2000. I must hasten to add that the respondent has not filed(to date) his written submissions. That notwithstanding, the arpeal as filed has to be determined on merits. Mr. Maira submitted that then? was no appeal. filed at the Housing Appeals Tribunal as the rleginal Housing Tribunal could net trace the original file. H:1T held that. a notice cf ar:-r-eal had been filed before the file got misplaced ·- Rule 7 (1) of HAT Rule 1990, That HAT relied upon a receipt allegedly issued by Nr. Chandoo. However it was contended by -:~t-~- ~--- ,,,_. 'v -...._._ ··,';I" - ~.r:'\,- .' .. ~ . ·;. -t.'! .r 2 Mr. Maira that there was no SUfportive evidence to prove that an appea1 had been filed, and if so, whether it was filed within time, so argues Mr. Maira_. The issue to be determined is this if the original case file had been misplaced, and no evid.ence was produced to show that an appeal had indeed been filed. How-.could the H_ousing Appeals Tribu:ial quash the RHT decision without having a proper ar~lication~ It there was only a notice of appeal issued which is denied by Mr. Maira, what were the grounds of,apreal? I think the Housing Appeals Tribunal_ acted in haste, and therefore imprGperly and without le1sal. basis to hold that there was a proper appeal before it. ··, In the premises I am inclined to agree with Mr. Maira's submission to the extent that there was no proper ar,peal before Hf:1T. The decision of ~he Housing Appeals 'l'ribunal is therefore ordered quashed and -that of the rtegional Housing Tribunai ordered to stand. But then this is the record·that h8s disappeared ) from the Tribunal lockers. So what does this court do? I am of the firm new that ' in order ,,. fer . justice to be peen to be done, let the application at ttfe~: 1:lHT. be heard . !)• denovo, ',,1~-. . /--. ;y ·:>• ., I _;1__ &I' ! / i i ( > . .., . "-if. ,. ·.'. ·_,_,;j/ . ~1 . y .. './, i,. ' . .../ ....... , ... - ' ,. '--"-. -r D~livered before A •. G. BilDESHI ,,.. .,'-..___ parties. JUDGE 26/7/2000 • ,:'~ ·, i/,' _..JI '',. ~-