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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 16090 OF 2024 (Arising From Misc. Land Application No. 115 of 2009, Land Division) SHUNGU MLEWA APPLICANT VERSUS MICHAEL KALUNGA (Administrator of the Estate of the Late Merdard Kalunga) RESPONDENT RULING 23'^ to 29"^ August, 2024 E.B. LUVANDA,3 . The Applicant Is seeking extension of time to enable him file notice of appeal to the Court of Appeal against the ruling and drawn order of this Court In the above captloned matter dated 29/11/2012. In the affidavit In support, technically the Applicant pleaded technical delay In prosecuting application for review of the Impugned decision which was dismissed on 28/03/2013; application for leave to appeal to the Court of Appeal, which was dismissed and struck out, then sought restoration which was struck out, then realized that leave was no longer a requirement. He directly lodged an appeal to the Court of Appeal on 19/04/2023, the same was struck out. He stated to have realized that he was pursuing his right In a wrong way, for the explanation that the only decision which should have been subject of appeal Is Misc. Land Application No. 115 of 2009 which was delivered on 29/11/2012, as opposed to the review dated 28/03/2013. He stated that he was not idle rather was fighting all the way but on a wrong direction at right place. In the counter affidavit, the Respondent stated that, the Applicant along Yahaya Kizenga were applicants in other consequential multiple applications followed after dismissal, via Misc. Land Application No. 968 of 2016; Misc. Land Application No. 540 of 2018 and Land Case No. 660 of 2018 when the Applicant made attempt to fault the decision of Misc. Land Application No. 115 of 2009 which was determined before Madame Justice Fikirini, J (as she then was) on 29/11/2012. In view of the above, the Respondent raised a notice of preliminary objection that the application is incompetent for the same contravene the provision of Order XLII rule 7(1) of the Civil Procedure Code, Cap 33 R.E. 2019. Mr. Daniel A. Lisanga learned Counsel for Respondent submitted that the application is untenable for contravening the law under Order XLII rule 7(1) Cap 33(supra). He submitted that this provision has been applied by the apex Court vide Civil Application No. 267/17 of 2023 vide an order dated 24/04/2024 before Mr. Justice Maige, JA. He submitted that what the Applicant is doing now is a deliberate violation of the law, argued it commands as mandatory prohibition. He submitted that referring the decision of the ruling in Misc. Land Application No. 115 dated 28/03/2013, the Applicant Is the victim of the law. He submitted that the order sought to be appealed against is an order which is not appealable, arguing the application being untenable. Ms. Josephine Ndelike learned Counsel for Respondent submitted that the provision cited by the Respondent bar appeal from an order rejecting the review in which application in hand the order rejecting the review was delivered on 28/03/2013, argued which the Applicant concede that it was a wrong move for him to file notice of appeal on that decision as it is unappealable. She submitted that the Applicant does not intend to appeal against an order rejecting review dated 28/03/2013 rather wishes to file an appeal on initial decision dated 29/11/2012. According to Mulla,The Code of Civil Procedure, Sixteenth Edition, at page 4141, commented that. The dismissal ofan appiication for review does not affect the powerofa courthearing an appealagainstthe decree to decide the question' At page 4107, the author commented, I bold a relevant passage. There cannot be an appeal against rejection of a review appiication on merits or on default, but in the latter case the party has a remedy by filing an appiication for restoration of the review appiication. Otherwise, the remedy would be only to challenge the judgment or order originally passed' Th© sarn© position was tak©n in p©rsuasiv© Sukhbasi Lai vs Durjan Singh, AIR 1963 All 119, wh©r© th© Allahabad High Court-India was confront©d with situation akin to this application, it mad© th© following comm©nts, I bold a p©rtin©nt portion, 'It appears that the plaintiff appellant filed an application for review before the appellate court on the ground that the plaintiffssuitshould have been decreed atleastas regards the land surrounding the house for which the defendant held no Irrevocable licence. The application was rejected by thatcourt, the learnedjudge who heard the application not being the one who passed the decree. But the order refusing a review cannotaffectthe powers ofthis CourtIn appeal' In fact, ©v©n th© provisions of Ord©r XLII rul© 1(2) Cap 33(supra)s©©mingly to m© that it allow to pr©f©r an app©al against th© d©cr©© which was subj©ct for r©vi©w. For clarity I r©produc© th© provision of sub rul© (2) to rul© 1 of Ord©r XLII, I bold th© applicabi© portion, I bold a portion of int©r©st to m©, A' party who is notappealing from a decree or order mayapply for a review ofjudgment notwithstanding the pendency ofan appeal by some other party except where the ground ofsuch appealis common to the applicantand the appellant, or when. being respondent, he cen present to the eppellete court the case on which he appliesfor the review' Therefore, to my respective view, there is no provision of the law which expressly or constructively bar to appeal against the decree or order which was subject for an application for review. The rationale is based on logic that review is not a substitute to an appeal. Appeal is a substantive right to a litigants against an order or decision subject for aggrievement where the right of appeal is available. In other words, a mere fact that the Applicant preferred a review, does not take away his right of taking essential steps to appeal against the original order or ruling subject for review. For that reason, the preliminary objection is overruled. On the merit of the application, the Applicant submitted that he was a defendant in the Land application No. 130 of 2006 before the District Land and Housing Tribunal, on which, the impugned judgment was delivered on 16/6/2007. He submitted that the judgment was in favour of the Respondent. He submitted that he was aggrieved by the decision and wished to institute appeal to the High Court but was out of time, hence instituted Miscellaneous Land Application No. 115/2009 before the High Court praying extension of time which was dismissed. That he decided to file review against the High Court decision in which was dismissed on 28/03/2013, where he decided to lodge notice of appeal to the appeal to the Court of Appeal dated 11/4/2013. That he also lodged application to the High Court for obtaining leave which was dismissal and struck out in which necessitated filing an application for restoration in which the same was struck out. That later on he realized that the application for leave was not necessary for lodging of appeal to the Court of Appeal and after full examination he realized that he was pursuing his right in wrong way as the only decision which should have been the subject of appeal is the decision of Miscellaneous Land Application No. 115/2009 which was delivered on 29/11/2012 and not of Review of 28/03/2013, hence triggered this application so that he could lodge notice of appeal against the decision delivered on 29/11/2012 2. The Applicant pleaded technical delay, arguing is sufficient reason for the extension of time. He pleaded to have wrongly pursued his right on wrong forum, arguing it is technical delay. He submitted that the discretion to extend time is always exercised after the Applicant has advanced sufficient cause or good reason for the delay, citing Tang^ Cement Co. V. Jummanne Masangwa And Another, Civil Application No. 6 of 2001 (unreported). He submitted that the efforts which were made by the Applicant above indicate that regardless of whether he took a right or wrong course of action or whether he was represented or not, he was busy in pursuit of his rights, arguing that he did not lie idle, citing Okech Boaz Othiambo & Another Vs Salama Idi Kanyoroto, Civil Application No. 900/15 of 2021, CAT [2024] TZCA 291 (2 MAY 2024) (TANZLII), at pages 7-8,the Court of Appeal In reply, the learned Counsel for the Respondent submitted that interms of section 14 of the Law of Limitation Act, Cap 89 R.E. 2019, extension of time is granted upon the court being satisfied that the Applicant has demonstrated sufficient cause. He submitted that the law has set out the guiding principles or factors which aid the court in determining whether the Applicant has shown good cause, citing Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania. He submitted that the Applicant's affidavit and submission does not meet the requirements in the case cited above. He submitted that the requirement to account for each day of delay was also underscored in Dar es Saiaam City Councii vs S. Group Security Co. Ltd, Civil Application No. 234 of 2015. He submitted that the Applicant had been silent for two years before lodging Application No. 115 of 2009 in this Court. He submitted that the law is clear that the order dismissing the review is not appealable. He submitted that in so far the Applicant is aiming at an intended appeal, he is automatically a victim of the law. He submitted that even if this Court may grant the prayer for extension of time, argued it will be helpless and the situation attracts illegality to that extent. He submitted that the Applicant lodged an application in the Court of Appeal Civil Application No. 267/17 of 2023 seeking for extension of time to lodge an appeal against the decision dated 28/03/2013 in Civil Application No. 115 of 2009 and for leave to serve the Respondent with a notice of appeal dated 11/04/2013, argued the outcome of the apex Court is that the intended appeal from the dismissal order seeking for review is no longer appealable in terms of Order LXII rule 7(1) Cap 33(supra). The learned Counsel submitted that he opposes the application for reason that the ground by the Applicant that had been pursuing multiple of applications in a wrong forum as a technical delay and therefore he has a good reason for extension of time, to his opinion such a reason does not implicate the reasonable weight as a matter of law to be granted with leave to appeal albeit out of time. He submitted that the Applicant has completely failed to account for all the period of delay and the delays are relatively inordinate. On my part I have taken cognizance of a fact that ever since delivery of the impugned decision by this Court on 29/11/2012, the Applicant had been throughout hanging out in the corridors of this Court and apex Court fighting for his right. The learned Counsel for Respondent did not dispel this factual ground. The only query by the learned Counsel for Respondent is that the Applicant did not account for a period of two years he remained idle prior lodging Application No. 115 of 2009 in this Court. It is to be noted that the Applicant is intending to challenge the decision of this Court in Misc. Land Application No. 115 of 2009. Therefore, what is important to me is what transpired from when that decision was delivered on 29/11/2012, onwards. The alleged delay prior instituting Misc. Land Application No. 115 of 2009, does not fall under my domain, nor can it form the basis for consideration of granting or refusing extension of time. To my view, a fact that the Applicant has been in Court pursuing other matters in a wrong way or forum, on itself constitute technical delay. In the case of Okech Boaz Othiambo (supra), the apex Court made the following remark. With respect to the counsel for the respondentI don't share the view that if an application is withdrawn on some iegai shortcomings^ that should be branded as negligence on the counsel for the applicant which is not excusable. We are not angeis. We are human beings and can make mistakes. People should not be punished for mistakes which they couid not be foresee unless there is evidence that the mistakes were made deiiberateiy with the view ofgetting some advantage out ofit. Idon'tsee such a situation here but a technical delay. To the contrary^ Isee chances ofdisposing the properties which may render the appeal nugatory' Therefore, technical delay was well grounded. The Applicant is given an extension of fourteen days counting from the date hereof, to file the intended notice of appeai against the decision of this Court dated 29/11/2012 in Misc. Land Appiication No. 115 of 2009. The appiication is granted. No order for costs. LUY DA U ^GE 29)68/2024 Ruling delivered in the presence/df Mr. Daniel Lisanga learned Counsel for Respondent also holding brief foij/Ms. Josephine Ndelike learned Counsel for Applicant. COUi^? c> s LVAND nc 08/^24 if 10