DIRECTOR MOSHI MUNICIPAL COUNCIL VS. JOHN AMBROSE MWASE. CIVIL APPEAL NO. 245 OF 2017

Abstract

i) It is a settled law that in civil cases that who alleges must proof which is a basis of Section 110 of the Evidence Act, [Cap 6 R. E 2019]. The Court cited with approval the holding in the case of Anthony M. Masanga V. Penina (Mama Mgesi) and Another, Civil Appeal No 118 of 2014 (unreported) in respect to burden of proof.

ii) It is a requirement of the law that any erection of building in planned area requires a building permit from the relevant authority. The Court relied on the provisions of Section 2 of the Urban Planning Act, Act No. 8 of 2007 and Rule 124(1) of the Local Government (Urban Authorities) (Development Control) Regulations, 2008.

iii) The Court reinstated the principle stated in the case of Goodluck Kyando V. Republic, [2006] TLR 367 that “it is a settled law that every witness is entitled to credence”. However, in certain circumstances and based on evidence that credence may be detached by the Court.

iv) It is settled that the claims of specific damages need strict proof before they are awarded by the Court.

v) The Court while interpreting the provision of Order VIII Rule 12 of the Civil Procedure Code, [Cap 33 R. E 2002], reiterated its earlier position stated in the case of Runway(t) limited Versus WIA Company Limited and Cascade Company Limited, Civil Appeal No 59 of 2015 (unreported), where it was stated that where the trial Court acknowledge existence of the Counterclaim is duty bound to make a finding on it.