JAMAAT ANSAAR SUNNA v THE REGISTERED TRUSTEES OF UMOJA WA VIJANA WA CHAMA CHA MAPINDUZI 1997 TLR 99 (CA) A

JAMAAT ANSAAR SUNNA v THE REGISTERED TRUSTEES OF UMOJA WA VIJANA WA CHAMA CHA MAPINDUZI 1997 TLR 99 (CA) A

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JA B

CIVIL APPLICATION 46 OF 1996

27 March 1997

Flynote

Evidence - Additional evidence - Subsequent to disposal of matter in High Court -

Where C evidence would avoid the demolition of a mosque - Evidence allowed.

-Headnote

The applicant applied for an order to lead additional evidence subsequent to the D

disposal of the matter in the High Court. The litigation between the parties involved

sensitive titles to land. It was submitted on behalf of the applicant that evidence had

been uncovered in the form of survey maps which would have established that there

had been no double allocation of plots as held by the High Court. E

Held:

It would be more just that the evidence alleged to have come to light since the

determination of the matter in the High Court be adduced where appreciating the

true picture could avoid the demolition of a mosque.

Case Information

Order accordingly. F

No cases referred to.

Dr Saffari for the appellant.

Mwakajinga for the respondent.

[zJDz]Judgment

Makame, JA G

This application is by Jamaat Ansaar Sunna who are represented by Dr A J Saffari,

learned advocate. The applicant is seeking an order for additional evidence, which

application is resisted by the respondent, advocated for by Mr Mwakajinga, learned

counsel.

Counsel for the respondent requested that this application be stood down until a H

preliminary objection for which he filed a notice way back in July, 1996 is disposed

of. Dr Saffari pointed out that he was aware of that application and that he had

already filed a counter-affidavit. I decided to go ahead and hear this application. I

appreciate of course that if the respondent's preliminary objection is upheld the main

appeal would automatically disappear, but I I

1997 TLR p100

MAKAME JA

A think it is not desirable that this application should remain unattended until after

the other application is heard.

This present bridge should be crossed now -- if later the preliminary objection is

sustained there would be no occasion to adduce additional evidence even if today's

application is allowed. If the preliminary objection is upheld the order for B

additional evidence will already be there. If I do not allow this application that would

be the end of this matter.

It is evident that the intended appeal arises from a sensitive litigation involving titles

to land. Dr Saffari submitted that since the disposal of the matter in the High Court he

has researched and discovered the existence of some survey maps which C would

have established that there was no double allocation of the plot in issue, and so the

High Court (Kyando, J) would not have arrived at the conclusion reached if it was

aware of it. Appreciating the true picture would avoid the demolition of a mosque

already in use. D

While I find it engaging Mr Mwakajinga's retort that a demolition of the mosque

would be justice itself, for indeed justice consists of giving each man his due, I think it

will be more just that the evidence alleged to have come to light after the

determination of the matter in the High Court should be adduced, in the E

circumstances. I take into account, in considering Dr Saffari's submission, the fact that

the applicant's case was handled by a string of advocates, four in all before Dr Saffari,

and this might have made the applicant fall between several stools, as it were. F

I grant the applicant's prayer for additional evidence regarding the alleged survey

maps and order the trial High Court to take such additional evidence, in terms of Rule

34(1)(b) of the Tanzania Court of Appeal Rules.

I make no order as to costs. G

1997 TLR p101