Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 8879 OF 2024 ALI SHOMARI.................................................................. APPLICANT

VERSUS JUMA SAID......................................................................... DEFENDANT

RULING 31/7/2024 & 20/8/2024 GWkt, J The applicant, Ali Shomari is after being granted extension of time within which to file his notice of appeal to, out of time after his former notice of appeal filed on 10th June 2021 being withdrawn in the Court of Appeal of Tanzania on 18th day of March 2024. The application is preferred under section 11 (1) of the Appellate Jurisdiction Act, Cap 141, Revised Edition, 2019. As precipitated by the records, the applicant was aggrieved by the decision of this Court (Maghimbi, J) vide Land Appeal No. 176 of 2019, which was delivered on 23rd June 2020. Sequel to the decision of this court exercising its first appellate jurisdiction, the applicant filed the requisite 1 Notice of Appeal to appeal to the Court of Appeal on the 23rd day of July 2020, which was however withdrawn upon application by the applicant. Nevertheless, the records further reveal that, the applicant filed an application in the Court of Appeal of Appeal for extension of time to file an application for leave to appeal vide Civil Application No. 55/17/2022 but was dismissed for want of his appearance on 19th July 2023 by the Court of Appeal (Makungu, JA). Following the dismissal of the application for extension of time and the advice given to the applicant by Mr. Armando Swenya, the learned advocate that, his failure to serve the respondent with the same within fourteen days

rendered the same defective. Relying on the said advice, the applicant instructed Mr. Armando Swenya to apply for withdrawal of the Notice Appeal, which was withdrawn on 18th March 2024 accordingly. Subsequently, the applicant electronically filed this application in order to eventually pursue his intended appeal to the Court of Appeal on 23rd day of April 2024. The applicant's version is that, this application is grantable since his delay is associated with the death of his advocate; Mr. Kipilima who died while intending to pursue his appeal and then was given his file after he 2 differed with an advocate who bequeathed the instruction of the deceased. That, after the demise of the late Kipilima, the applicant secured another advocate, Mr. Swenya who advised that the notice duly filed in the Court of Appeal is defective as earlier alluded. On the other hand, the respondent resisted the application on two grounds; First ground, it is incompetently filed for the following reasons, one; the application is overtaken by event namely; handing over of the disputed piece of land in favour of the respondent and two that, it is tainted with procedural irregularity. Second ground, that, the application at hand lacks merits as the applicant has failed to give reasonable cause. Hence, according to him, it is out of the required standards in application for extension of time to file

notice of appeal. Before this Court, Mr. Armando Swenya and Mr. Mohamed Majaliwa, both the learned advocates appeared for the applicant and respondent respectively. Hearing of the application proceeded by way written submission. As I have not found the applicant's reply to the respondent's submission on PO. In such premise, I shall therefore go straight to the 3 determination on the points of law raised by the respondent's counsel and if negatively, I shall consider the parties' written submissions for and against the application. Firstly, that, this application has been overtaken by event, I am of the view that this application has not been overtaken by event that is to say the eviction order dated 25th January 2022 as opposed to the view of learned counsel for the respondent. As the case, where an appeal is duly filed in an appellate court, such appeal does not operate as a bar to an application for execution in terms of Order XXXIX Rule 5 (1) of the CPC. Equally, execution of a decree or order does not operate as a bar to a filing of an appeal. I am holding so for two reasons;- a.That, the right to appeal is a constitutional right in terms of Article 13 (6) (a) of URTC, 1977 exercisable by any person aggrieved with a decision or order of the court unless his failure to exercise is due to his gross negligence b.That, even if the execution of an appealed decree or order, a

party who successes in an appeal shall still have a remedy including restitution in terms of section 89 (1) of the CPC which reads; " 89. -(1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way 4 ofrestitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal." My reading of the above statutory provision, in my view, entails that, there are other remedies or avenue where an appeal is found meritorious whether partly or wholly in a situation where an execution of a decree or an order has been carried out. Therefore, the executing court or any other court competent may make an order as to refund and any other order deemed fit to make as consequential to the decision on appeal. Hence, there is no legal room of asserting that, once an execution has been carried out, any subsequent matter involving the same parties and same subject matter will be said to have been overtaken by event. The 1st

limb of objection is therefore overruled. In the 2nd Umb of objection of herein, it is the considered opinion of the respondent's counsel once the matter before the Court of Appeal 5 which was for extension of time to file leave to appeal was dismissed for want of appearance, the applicant's remedy available was to apply for setting aside the dismissal order. I do not buy this stance since when the notice of appeal-to-appeal was withdrawn that, automatically rendered an application for extension of time to apply for leave to Appeal useless. I have further taken into account of new piece of legislation deleting the requirement to apply for leave for decision or order made by the High Court when exercising its 1st appellate jurisdiction. (Section 5 and 47 of the DLCA, Cap 216 and 5 of the AJA Cap 141 respectively as amended by the Written Laws (Misc. Amendments) Act No. 8A of 2023). Therefore, I find the order of withdrawal of a notice of appeal does not have same effect as the withdrawal of an appeal before the Court of Appeal, which requires a party interested in further prosecuting his appeal to apply for restoration in terms of Rule 77 (3) of the Court of Appeal Rules, 2009. Now to the court's determination of the merit or otherwise of the application. Though I have found unusual tendency on the part of the applicant for his failure to file his appeal to the Court of Appeal

after grant of leave by this Court on 12th May 2021 and the applicant's Application before 6 CAT for extension of time in Civil Application No. 55/17 of 2022 to apply for leave. Further to that, I have observed that, the applicant is not certain of who exactly was prosecuting his matter (s) as his advocates between Mr. Kipilima and Mr. George Joseph Sang'udi as rightly contented by the respondent's counsel. (See Paragraph No. 6 of the applicant's application and Civil Application No. 55/17 of 2022). However, the respondent's counsel have not demonstrated if the said Sang'udi was not working with the late Kipilima. Despite the above noted shortfalls, I am of the considered view that, this application has merit. I have taken into account as to when withdrawal order of the notice was entered (18th March 2024) and when this application was electronically filed (23rd April 2024) and fact that, the former notice was filed within time (23rd July 2020). I have also considered that, the issue of illegality, as noted by this Court (Maige, J as he then was now JA) when the applicant applied for leave to appeal vis Misc. Appl. NO. 399 of 2020, is one of the grounds for the appropriate exercise of the judicial discretion in granting the sought extension of time to appeal. (See Lyamuya Construction Company vs. Board of Trustees of Young Women of Young Women's Christian of Tanzania (Civil

Application No.2 of 2010) 7 [2011] TZCA (15 November 2023). Without wasting much time, this application is grantable. Consequently, I overrule both points of the respondent's PO and in the light of the reasons given above; I hereby grant the applicant time to file afresh his Notice of Appeal to Appeal to the Court of Appeal of Tanzania. He is given ten (10) days from the date of this ruling within which to re-file the same. Costs of this application shall abide the results of the intended appeal by the Court of Appeal. It is so ordered. DATED at DAR ES SALAAM this 20th day of August 2024. 8