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
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