joseph jesagwa and 3 others vs guhenga ngohongoke and 2 others 2023 tzhc 22707 13 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA MISC. LAND APPLICATION NO. 48 OF 2023 (Originating from District Land and Housing Tribunal of Shinyanga at Shinyanga in land Application No.41 of 2019) 1. JOSEPH JESAGWA 2. NKOLA KULWA 3. DOTTO JESAGWA 4. SENI NKOLA } .................. APPLICANTS

VERSUS 1. GUHENGA NG'OHONGOKE } 2. NGUSA NG'ONGHOKE RESPONDENTS 3. NG'ANGHA NGUSA

RULING 3pt October & 13th November 2023 F. H. Mahimbali, J. This ruling is in respect of one preliminary objection filed by the respondents against the application seeking for extension of time to file review against the judgment of this court vide Land Appeal No. 03 of 2022 in which dismissed the appeal for being unmeritorious. 1 According to the facts as per court's records, the applicants having been dissatisfied by the decision of this court dated 5th June 2023 as stated above, on 27th June 2023 lodged their notice of appeal against the decision of this Court to Court of Appeal. Subsequent to this, on 31st August, 2023, they preferred this application of review to this court while the Notice of Appeal dully filed is still in existence. It is from this background then, this objection has been preferred by the respondents that this court is ousted with jurisdiction to entertain such an application in the existence of the Notice of Appeal. On the date set for hearing of the preliminary objection, Mr. Frank Samwel learned advocate appeared for the respondents whereas Ms Stella learned advocate appeared for the applicants, resisting the said preliminary objection. In arguing for his preliminary objection, Mr. Frank Samwel submitted that in his understanding, so long as the applicants have preferred an appeal to the Court of Appeal by first lodging Notice of Appeal to the Court

of Appeal, legally speaking cannot then come back to this court and knock its doors for review application while the lodged Notice of Appeal is in existence. In support of this legal position, he cited the case of Mohsin Mohamed 2 - ==-- ~=::::::::: Taki Abdalah Vs. Tariq Mizra & 4 Others, Civil Application No. 53 of 1998, HC- DSM where it was clearly ruled that an application for injunction before the High Court could not be entertained where there is in place a Notice of Appeal to Court of Appeal. In a similar view, he argued that an application by the applicants is misconceived. He prayed that the application be dismissed with costs as it is an abuse of court process. In her submission against the preliminary objection, Ms. Stella admitted that this application was filed on 3pt August 2023, while the Notice of Appeal against the decision of this Court was filed on 27th June 2023. That notwithstanding, on 29th September 2023 they filed the Notice of Motion to Court of Appeal to withdraw the intended appeal before it. Therefore, so long as the Notice of Motion to withdraw the Notice of Appeal is in place, the filing of this application was not prevented by the presence of the filed Notice of Appeal which the same was about to be withdrawn by the Court of Appeal. She argued further that since the filed preliminary objection was filed on 3rd October 2023, they did it without

knowledge that the applicants have filed the Notice of Motion to withdraw the said intended appeal. On this, she argued that once Notice of Motion to withdraw appeal is filed, then 3 automatically the filed Notice of Appeal dies its natural death and therefore trying to convince the Court that this application is properly before the Court. On the cited case of Mohsin Mohamed Taki Abdalah Vs. Tariq Mizra & 4 Others (supra), she agreed with the principle laid down but differed with it in its application to the current case it being distinguishable on the sense that the former case dealt with an injunction application while there was no notice of motion to withdraw notice of appeal while the current application for extension of review has been preferred while there is in place a Notice of Motion to withdraw the intended appeal before the High Court. Having dispassionately heard both parties, the vital question is whether the preliminary objection is merited. According to the facts of the case, it is undisputed that by the time this application for extension of time to file review was filed, the Notice of Appeal to Court of Appeal against the decision of this Court to be reviewed by was still in force and that the Notice of Motion to withdraw the intended appeal was filed recently. Does this then justify the existence of the current application before this Court while the Notice of

Appeal is still in place? 4 This is not the first time this Court determines this issue. Thus, this issue will not detain me much. I have pondered on the submissions by the counsel for the parties, and I agree the current application is improperly before the Court. The notice of appeal lodged on 27th June 2023, is still intact as there is no proof that the Court of Appeal had ever ordered its withdrawal. The case of Milcah Kalondu Mrema v Felix Christopher Mrema, Civil Appeal No. 64 of 2011 (unreported), has well rounded up the argument. At page 5 of the ruling the Court observed that: "It is now settled that once a notice of appeal to this Court have been duly lodged, the High Court ceases to have jurisdiction over the matter. " It was not the first time the Court of Appeal was faced with the situation in the Milcah Kalondu Mrema case (supra). In Arcado Ntagazwa v Buyogera Bunyambo [1997] T. L. R. 242, which referred to Milcah Kalondu Mrema, the Court stressed: "Once the formal notice of intention to appeal was lodged in the Registry, the trial judge was obliged to halt the proceedings at once 5 ~- and allow for the appeal process to take effect or until that notice was withdrawn or was deemed to be withdrawn. If Since there was nothing placed before the court, that the lodged notice of appeal has been withdrawn or was deemed to be withdrawn, then the notice of appeal lodged

is considered to be still intact. Under the circumstances, the High Court's jurisdiction ceased to warrant the entertainment of the current application leave alone its filing. In essence, the applicants ought to have waited until the full withdrawal of the intended notice of appeal through the notice of motion, otherwise there was no any justification to warrant the filing of the current application (See also Exaud Gabriel Mmari vs Yona Seti Akyo & Others (Civil Appeal 91 of 2019) [2021] TZCA 726 (3 December 2021)). That said, the current application for review before this court while there is in place a notice of appeal not yet withdrawn from the Court of Appeal, is a legal nuisance which should not only be entertained but even attempted its filing. 6 That being an abuse of court process, the same is dismissed with costs and the applicant's counsel is warned from such a legal betting (appeal and review at the same time). DATED at SHINYANGA this 13th day of November, 2023. F.H. Mahimbali Judge Ruling delivered today the 13th day of November, 2023.in the presence of the appellant and respondent and Ms Beatrice, RMA, present in Chamber ~~ Court .. ;I'(jOURT d}1\ /I;";}.. . ~~' /I(~~ ~ i/•.••• ~ .••• ~ ~ I~* }I)l F.H.MA~-::- ~ .,,~_~ --/~ JUDGE 7