20060410 TZCA Dar es Salaam3

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 150 OF 2005 SHAFFIQUE A.S. DHIYEBI ............................................... APPLICANT VERSUS PRESIDENTIAL PARASTATAL SECTOR REFORM COM MISION .......... ......................................... RES PON DENT {Application for an order that Civ.App.No. 164 of 2005 be struck out from the decision of the High Court - Land Division at Dar es Salaam) (Kileo, J.} dated the 15th day of October, 2004 in Land Case No. 46 of 2004 4 & 18 April, 2006 RULING LUBUVA, J.A: When the matter was called on for hearing, both Mr. Mbwambo and Mr. W. Chipeta, learned counsel for the applicant and respondent respectively, consented to the withdrawal of the appeal. Earlier on, counsel for the applicant had filed notice of withdrawal of the appeal. The matter reached this stage because there was no consent at that time of all the parties to the withdrawal of the appeal. 2 Now that both parties are consenting to the withdrawal of the appeal, the application is granted as prayed. Accordingly, the appeal is marked withdrawn. However, I think it is desirable to make the following brief observation. In The University of Dar-es-Salaam v. Richard Kajuma Muzo, Civil Application No. 19 of 2004, the Court had occasion to deal with such unusual and unique application. The facts were more or less similar. Strictly, this matter should not have reached this stage if it were not for the requirement of rule 95 ( 4) whereby an intending appellant, upon reconsideration of the matter decides not to further pursue the appeal but is held at ransom, as it were, by the respondent refusing to consent to the withdrawal. In my view, the matter should be left open to the intended appellant to decide without dragging in the respondent to consent to the withdrawal. After all, the respondent was not dissatisfied with decision which it is intended to appeal against. On the face of it, the logic behind the provisions of rule 95 (4) is not, in my view quite 3 clear. Perhaps, at an appropriate stage, this aspect would be gone into exhaustively. Accordingly, the appeal is marked withdrawn. Having regard to the history of the matter, costs are awarded to the respondent in this application. DATED at DAR ES SALAAM this 10th day of April, 2006. D.Z. LUBUVA JUSTICE OF APPEAL I certify that this is a true copy of the original.