| dc.description | ALISUM PROPERTIES LIMITED V. SALUM SALENDA MSANGI IN THE COURT OF APPEAL OF TANZANIA – DAR ES SALAAM KWARIKO. J.A. KEREFU. J.A. and KIHWELO, J.A. 10th & 24th June, 2022 CIVIL APPEAL NO. 39 OF 2018.
(An Appeal from the judgement and Decree of the High Court of Tanzania at Dar es Salaam District Registry Case No.67 of 2010 dated 5th February,2016 by Hon. Feleshi, J)
Facts
This appeal emanates from, the issue of ownership of land described as plot No.33/4 situated at Kunduchi Beach, Dar es Salaam measuring 1.773 hectares. It is the appellant claim that the respondent has trespassed to the disputed land, that the appellant prays for eviction of the respondent from the disputed land and declared lawful owner of the land, payment of mesne profit to the tune of TZS 5,000,000 per month from 31st December 2008. The respondent disputed appellants claims and averred that he has been in ownership of the land since 20.11.1967. He also challenged the appellant’s suit that is time barred. The issues were framed by the court to determine ownership of the land in dispute. After hearing Advocates were encouraged to file their final submissions where the respondent’s Counsel raised two issues on that hearing proceeded after expiration of speed track and the appellant’s suit is time barred having been instituted after twelve years.
In his judgement the learned Judge considered the issue of expiration of speed track and dismissed it for lack of merit, he proceeded to decide on issues of ownership of land. He observed that the appellant had no locus standi to institute the suit against the respondent but M/S Concern World Wide Ltd who was not a party to the suit. The Judge reserved determination of issues of competence of the appellant’s suit on account of the absence of M/S Concern World Wide Ltd. Aggrieved by the decision the appellant lodged this appeal.
For the Applicant: Mr. Samson Mbamba
For the Respondent: Mr. Yahaya Njama and Daimu Khafan
Legal Issue
i. Whether it is appropriate for the Judge to proceed with hearing on merits without determination of issues raised by the parties?
ii. Whether it is proper for the Judge to raise new issues at the Judgement stage?
Held
i) It is elementary principle of law that an issue raised by the parties should be resolved, failure to do so renders the judgement defective.
ii) Cases must be decided on the issues or grounds on record and if it is desired by the Court to raise other new issues either founded on the pleadings or arising out of evidence adduced by witnesses or arguments during the hearing of appeal, those new issues should be placed on record and parties must be given an opportunity to be heard by the court.
Civil Practise & Procedure – Issues raised by parties-determination of issues- Whether it is appropriate for the Judge to proceed with hearing without determining issues raised by parties?
Civil Practise & Procedure- issues- new issues raised by the Court- whether it is appropriate for the Court to raise new issues at the judgement stage?
Statutory Provisions referred:
Section 4(2) The Appellate Jurisdictions Act, (Cap.141 RE;2019)
Rules 105(1), 106 (1) (7) Court of Appeal Rules as ammended
Case Law:
Alnoor Shariff Jamal vs. Bahadir Ebrahim Shamji, Civil Appeal No.25 of 2006 (unreported) quoted Kukal Properties Development Limited vs. Maloo and others (1990) EA 281
Celestine Maagi vs Tanzania Elimu Supplies (TES) and Another, Civil Revision No.2 of 2014 (unreported)
Scan -Tan Ltd vs. The Registered Trustees of Catholic Diocece of Mbulu, Civil Appeal No.78 of 2012 (unreported)
Abbas Sherally and Another vs, Abdul S. H. M Fazalboy, Civil Application No.33 of 2002 (unreported)
Books;
Mullah, The Code of Civil Procedure Vol. II 15th Edition at page 11432 | en_US |
