Fauzia Omar Abeid vs Juma Mtoro and Another (Civil Case No. 68 of 1998) [1998] TZHC 2233 (8 September 1998)

:ii.;..'., IN THE HIGH COURT OF TANZANIA ~~ FAi:JZIA OMAR ABEID 000000000000000000•000 PLAINTIFF VERSUS RULING Upon perusal of the records of these.files, it is evident that this matter went so the Court of Appeal after the judgment of Mackanja, J, on 28/6/94. However, the Court of Appeal dismissed the application to extend time within which to file the notice of appeal. What remained was for the lower court to execute the decision of this Court. What .was the decision of this court?. Mackanja, · and I quote: :;••~•••••••••••••••••• the applicants who, for all practical purposes and intent, are acting as plaintiffs, have a right to sue whomsoever they thirik is liable to them ooo••••••••••••o the proceedings in Kariakoo Primary Court ,i.,, ·t.: i Mirathi No.91 of 1980, the Civil Cause No.154 of 1989 and the Ilala District Court Civil Revision N• 8 of 1990 are hereby queshed and orders which were made therein are also set aside. 1 find1.-_l_1lew hol<!_that the administrateir in Mirathi No 54 of 1954 had 0::-·-- ·-·--=------'----- "!:s,t<:~9onY.:~Y: t.h~~-1:2-t house to Nyag~~ ~o_Y-Ti1l1x~goha <;:,;,d_t._!l.!; latter passed good title to the applicants who are now the legal ewners of the pr9perty which is known as House No 1 situate on Plot 24, Block 4, on Somali Street The _£osi tion .~1.e law being: as it is, Ki bi had. no l:.le .. which oould pase to a third person••••·•••••• The issue then is how does this decision get executed in view of the fact that Fauzia Omari Abeid, now applicant/objector, has put up a one storey building on the suit ploto · e 2 0

. e 2 • Does the Primary Gourt order's to demolish the present structure and rf!place it with the former structure fearrible? The objectvr has filed a suit for a declaration a:hd or refuI1d of TSh 80,000,000 being the current val?te of the property, which the order of the Primary Court seeks to demolish • . Before Me,c_kanja, J. the applicant Fauzia was not called as a party while the decision made affects her legal interestso She has claimed in para 13 of her plaint that 11 i~~at a!, matex:~~~im~_a b~!:!,1:. __ filie ;eurcheser _ fE~~ at market overt. 11 I think it is only frdr tho.t her objection b_e heard and finally determinedo It would not be in the interests of justice if the applicant's objections are not heard. Indeed the decision of Mackanja, J. is to the effect that Juma Mtoro and Hadija Kambi had a right to sue Kazi Kambi and Fauzia Ornari. The order of the Primary Court to demolish the present structure aYJ.d rebuild on site the old building is not what was ordered by Mackanj.a, J 0 and cannot certainly be implemented. Hence the execution of that order is ordered stayed pending the determination of·the objections rights 0 Delivered before. Dr Twaib for applicant/objectr ;. :f~ ~~~·1 . 1·· '.!\ ( ',i ;.), .•. r. Q ! ' . . h· ,r. ;.• . .JY.1.. ~ ·\ \ A.Go Bubeshi _Judge 8/9/98 /