MISC

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

AT DAR ES SALAAM MISC LAND APPLICATION NO. 16728 OF 2024 AUGUSTINE NGIMILANGA................................................APPLICANT

VERSUS RAMADHAN RASHID KUHUKA......................................................... 1stRESPONDEN

THE PERMANENT SECRETARY MINISTRY OF NATURAL RESOURCES AND TOURISM............................................................ 2ndRESPONDEN THE ATTORNEY GENERAL.................................................................3rdRESPONDEN

RULING 2nd September 2024 L.HEMED, J, This application has been preferred under section 11 of the Appellate Jurisdiction Act [Cap. 141 R.E 2019] and section 2(1) of the Judicature and Application of Laws Act [Cap. 358 R.E 2019]. The Applicant seeks for the following orders: "a. For extension of time to the Applicant to file an appeal against the Judgment and Decree of the High Court of Tanzania, Land Division, Mgetta J., dated 14h day ofApril 2021 in Land Case No. 51 of 2016; i b. Costs be provided; and c. Any other Order or relief that this Court ofjustice may deem just and fair to grant." The matter was called for necessary orders on 2nd September 2024. MrJohn Chogolo, learned counsel appeared to represent the Applicant while Mr Augustine Kisarika, learned advocate acted for the 1st Respondent. The 2nd and 3rd respondents enjoyed the service of Mr. Elias Mwendwa, learned State Attorney. When called to address the court, Mr. Kusarika, raised orally the preliminary objection that "the application is premature before this court for want of notice of appeal". In response to the preliminary objection, Mr. Chogolo conceded to it and proceeded to pray to withdraw the application with leave to refile. He also prayed that the Applicant should not be condemned to pay costs for the intended withdraw. On his part, Mr. Kusarika was of the view that the Applicant should not be granted

leave to refile the application, as the same is incompetent. The counsel for the 2nd and 3rd respondents, Mr. Mwendwa was of the opinion that the application should be struck out without costs. 2 The first question that needs an answer is whether the Applicant can withdraw the application at this stage. In my firm view, the Applicant is precluded from withdrawing the Application upon registration of the preliminary objection. I am holding so because, by permitting the Applicant to withdraw the application with leave to refile, will amount to circumventing the preliminary objection. Once the preliminary objection has been registered, an adverse party has two options:- i. To concede to the preliminary objection and face the consequences thereof; and ii. Remain adamant, argue against the preliminary objection, wait for the ruling, and associated consequences. A party who concedes to the preliminary objection, he/she should be ready for the consequences as well. In the instant matter, the learned counsel for the Applicant has conceded to the preliminary objection that the Application for extension of time to appeal against the decision of this court is premature for want of notice of appeal. Impliedly, the learned advocate agrees that the application before this court is incompetent. The only remedy available for any incompetent matter before the court is to strike it out. 3 Before

I pen of, let me point out that, appeals to the Court of Appeal of Tanzania has to commence by lodging a written notice of appeal with the Registrar of the High Court. This is pursuant to Rule 83 of the Court of Appeal Rules, of 2009 which provides thus:- "83(1) any person, who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court. (2) Every notice shall, subject to the provisions of rules 91 and 93, be so lodged within thirty days of the date of the decision against which it is desired to appeal." The relevance of the cited provisions is that any person who desires to appeal to the Court of Appeal against the decision of this court in civil cases has to lodge a written notice within thirty (30) days of the date of the impugned decision. In view of Rule 90(1) of the Rules, an appeal is supposed to be lodged in the appropriate registry of the Court of Appeal within sixty (60) days of the date when the notice of appeal was lodged. This has the meaning that the notice of appeal is the one that commences the appeal process in the court of appeal. This position was also taken by the Court of 4 Appeal of Tanzania in David Malili vs Mwajuma Ramadhani, Civil Appeal No.119 of 2016, when it observed thus:- "Despite the fact that Rule 83 of the Rules does not clearly specify that once a notice of appeal is filed, it institutes an

appeal as found in rule 68(1) of the Rules on criminal appeals but that the notice of appeal in. civil appeals, commences the appeal process to this Court." [Emphasis added] In the final analysis, it is obvious that, in the absence of notice of appeal, one cannot lodge an appeal to the Court of Appeal nor can he/she apply for extension of time to file appeal against the decision of this Court. I am on the same page with learned counsel that the instantaneous application is incompetent before this court. I do hereby proceed to strike out with no orders as to costs. Order accordingly. :Dat DAR ES SAL this 2nd day of September 2024. m re.

JUDGE 5