20180423 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MJASIRI, J.A., MMILLA, J.A., And MWAMBEGELE, J.A) CIVIL APPLICATION NO. 334/17 OF 2017 TANZANIA ELECTRIC SUPPLY CO. LTD •••••••••••••••••••••••••••••••••••• APPLICANT VERSUS 1. MUFUNGO LEONARD MAJURA 2. ELIKIRA FANUEL KWEKA 3. KAMBWIRI OMARI SHAIBU 4. NOYA JOHN CONRAD 5. SALIMA RAJAB KIZIGO 6. MRS ABNEL SLATIERI MBALLA 7. IRENE BARAZA SALEHE 8. GALIO BANGO KISERA ....................... RESPONDENTS 9. ALLY MWALIM SHOMVI 10. OMARI SALUMU NGALOMBA 11. NAHUMU ANAEL PALLANGYO 12. NGIMBA MARY PAUL 13. MAROR MUSSA SELEMAN KINGAI 14. OMARY RAJABU REMMY 15. MASEGEDO JUMA MGWENO [Application to amend the notice of motion in Civil Application No. 292/ 17 of 2017 pending in the Court arising from decision of the High Court (Land Division)]. (Mansoor. J.) Dated 5 th day of February, 2015 in Land Case No. 55 of 2008 RULING OF THE COURT 18th April & 3rd May, 2018 MMILLA, J.A.: This application has been brought by way of Notice of Motion, and is anchored on the provisions of Rules 4 (2) (b) and 50 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules}. The applicant, Tanzania Electric Supply Company Limited, is requesting the Court to 1 permit her to amend the.Notice of Motion in Civil Application No. 292 of 2017 on the lone ground that the Notice of Motion thereof does not conform to the requirements of Form A in the First· Schedule of the Rules. The application is supported by an affidavit sworn by Mr. Richard Karumuna Rweyongeza, learned advocate who represents the applicant - At the hearing of this application, the applicant enjoyed the services of Ms Anna Marealle and Ms Florence Ernest, learned advocates. On the opposite side we have Mufungo Leonard Majura and 14 others (the first to fifteenth respondents respectively). On the day of hearing, they were represented by Mr. Gabriel Simon Mnyele, learned advocate, who held the brief of Mr. Audax Kahendaguza Vedasto, the learned advocate who ordinarily represents all the respondents. Mr. Vedasto had filed a notice of non-contendre. At the hearing, Ms Marealle firstly prayed to adopt the Notice of Motion, the affidavit in support and the written submissions they had filed. She subsequently urged the Court to grant the application on the strength of those documents on account that the advocate for the respondents did not contest the same. On his part, Mr. Mnyele affirmed the respondents' advocate's stand as reflected in the notice of non-contendre and consented to the grant of the sought order, but implored the Court to direct that each party bears its own costs. In a brief rejoinder, Ms Marealle shared Mr. Mnyele's view as regards the question of costs. 2 - - - On our part, we-have profoundly considered the notice of motion, the accompanying affidavit, the written - submissions filed -by the applicant's advocate, the notice of non-contendre, all of which feature in the court record; as well as the oral submissions of the learned advocates for the parties. Upon the respondents' advocate concession, and on the strength of the said documents, we grant the orders sought. Consequently, the applicant is permitted to amend the Notice of Motion in Civil Application No. 292 of 2017 so that it conforms to the requirements of Form A of the First Schedule to the Rules as pleaded. We also rule that each party bears its own costs. Order accordingly. DATED at DAR ES SALAAM this 23 rd day of April, 2018. S. MJASIRI JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL · J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. EAL 3 - . ~--- . ~,-~~-~-~,,.;..;c-. - --~=-= -