magreta basso vs ferdinand gilgo lulu 2023 tzhc 21693 6 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI MISC. CIVIL APPLICATION NO. 30 OF 2023 (Arising from Decision o f High Court of Manyara in the Land Appeal NoA of 2022) MAGRETA BASSO........................................APPLICANT

VERSUS FERDINAND GILGO LULU................................... RESPONDENT

RULING 6th & 06" October 2023 Kahyoza, J.: This is a ruling in respect of the preliminary objection raised by Ferdinand Gilgo Lulu, the respondent, during the pendency of an application for an order of maintenance of status quo ante in respect of the use of the suit land, to allow the applicant to continue with the use of the suit land, pending the final determination of the dispute between them. The hearing of this preliminary objection was conducted by way of oral submissions, where Ferdinand Gilgo Lulu, the respondent was represented by Mr. Lengai Nelson Merinyo, Advocate; and Magreta Basso, the applicant (the objected) was not legally represented, following non-appearance of Mr. Raymond Kim without reasons. The preliminary objection 4s reads - 1) That, this Hon. Court lack jurisdiction to entertain this matter on a ground that with the Notice of Appeal Lodged to the Court of Appeal, there is no pending suit in this Court.

2) That, the applicant application is incompetent in law for lack of enabling provision of the law. A brief background is that; Magreta Basso sued Ferdinand Gilgo Lulu for land trespass before the District Land and Housing Tribunal for Babati at Babati (the DLHT). The DLHT dismissed Magreta Basso's application for want of merit. Aggrieved, Magreta Basso knocked the doors of this Court in Land Appeal No. 4 of 2022. On 30/05/2023 this Court nullified the proceedings, judgment and decree of the DLHT and ordered a fresh trial. Ferdinand Gilgo Lulu was bitterly aggrieved and on 09/06/2023 he lodged a notice of appeal, emancipating his intendment to appeal to the Court of Appeal. Mr. Lengai, submitted that since the respondent has lodged a Notice of Appeal to appeal to the Court of Appeal, then this Court's jurisdiction is ousted save for hearing an application for leave to appeal and certification on point of law. To buttress his position, he cited the rule in National Insurance Corporation vrs. Kweyambah Quaker, TLR [1999] 150. Further, he argued for this court to dismiss the application. On the second limb of his submission, he submitted that there is no enabling provision on which this application stands. 2 Magreta Basso, the applicant, being a lay person, she had nothing substantial to submit. On the outset, I agree with Mr. Lengai, that the application before this court is

misconceived and is bound to be dismissed. The record bears testimony that the respondent has already filed a Notice of Appeal to the Court of Appeal of Tanzania in this court on 09.06.2023. The respondent cited the case of National Insurance Corporation vrs. Kweyambah Quaker (supra) where it was held among other things that- "A Notice of Appeal removes a case from the High Court to the Court o f Appeal and rule 76(4) o f the Tanzania Court o f Appeal Rules 1979 under which the High Court exercises jurisdiction to grant leave to appeal even after a Notice o f Appeal has been lodged does not serve to bring back to the High Court a matter already before the Court o f Appeal;... ” It is trite law that once a notice of appeal to the Court of Appeal is instituted, the High Court ceases to have jurisdiction on that particular proceedings. The Court of Appeal reiterated its position in a number of its decisions. In the case of Mohamed Enterprises Tanzania Ltd V. The Chief Habour Master and The Tanzania Ports Authority Civil Appeal No.24/2015 CAT (unreported). The Court of Appeal stated, 'the institution of a notice of appeal deprives the High Court its power 3 to entertain the proceedings giving rise to the notice of appeal. (emphasis supplied) As stipulated above, this Court ceased to have jurisdiction on the matter between the parties in the applicant, from 09.06.2023 the date

the respondent lodged the notice of appeal except on matters specifically provided by law or rules. Matters which this Court retain jurisdiction are applications for extension of time to lodge a notice of appeal, for leave to appeal and for certificate that there is a point of law to be considered by the Court of Appeal. The Court of Appeal in Matsushita Electric Co. Ltd V Charles George t/a C.G. Travers, Civil Appl.No.71 of 2001 (unreported) avowed this position as follows- "Once a Notice o f Appeal is field under Rule 76 (now Rule 83 (1) o f the Rules) then this Court is seized o f the matter in exclusion o f the High Court except for applications specifically provided for, such as leave to appeal or provision o f a certificate of law". The application before this court for maintenance of status quo ante and to allow the applicant to harvest crops in the disputed land before the intended appeal to the Court of Appeal. The instant application is not one of such applications which the High Court retains jurisdiction after a notice of appeal is lodged. In Aero Helicopter Limited V. F.N. Jensen [1990] TLR 142 the Court of Appeal pronounced itself concerning the issue of the powers of the High Court to entertain an application for stay of execution after institution of a notice of appeal. It decided that issue as follows- "Once appeal proceedings to this Court have been

commenced by filing notice o f appeal, the High Court has no inherent jurisdiction under section 95 of the Civil Procedure Code to order stay o f execution pending appeal to this Court". From the authorities cited above, it is vividly clear that this Court has no jurisdiction to entertain the application for maintenance of status quo which is akin to an application for stay, after the date the applicant lodged the notice of appeal. In the end, I sustained preliminary objection as I find no legs on which the application is to stand. I hereby dismiss the application. Basing on the subsisting relation between the applicant and the respondent, I make no order as to costs. It is ordered accordingly. th Dated at Babati this 9 day of October, 2023. J. R. Kahyoza ----- 09/10/2023 Court: Ruling delivered in the virtual presence of Mr. Lengai advocate for the respondent and the absence of the applicant and his applicant. B/C Ms. Ombeni Kazyoba (RMA) present. J. R. Kahyoza Judge 09/10/2023