Silaha Watison vs Kulwa Nassoro (Civil Application No. 536/17 of 2023) [2024] TZCA 1131 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 536/17 OF 2023 SILAHA W ATISON............................................ .........................APPLICANT VERSUS KULWA NASSORO ...................... ...... ........ ....................... RESPONDENT (Application for Extension of Time to file a Review of the Ruling of the Court of Appeal of Tanzania) at Dar es Salaam) (Kitusi. JA.1 ) dated the 30th day of September, 2021 in Civil Application No. 96/17 of 2020 RULING 1st & 19th November, 2024 MLACHA. J.A.: By notice of motion made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant filed an application for extensions of time to file an application for review against the decision of a single Judge of the Court made in Civil Application No. 96/17 of 2020. The notice of motion is supported by the affidavit of Mr. Silaha Watison, the applicant herein.

To understand the issues before me properly, the factual background is reproduced, albeit briefly, as follows; The respondent sued the applicant at Wazo ward tribunal claiming that he had trespassed to his land located at Mbuyuni Salasala within Kinondoni District, Dar es Salaam Region. The respondent was declared the lawful owner of the land. The applicant appealed to the District Land and Housing Tribunal for Kinondoni District and the High Court (Land Division) at Dar es Salaam without success. He needed to appeal to this Court but was out of time. He filed Miscellaneous Land Application No. 312 of 2019 at the High Court seeking extension of time but it was dismissed on 14th February, 2020. Still undaunted, he approached the Court and filed Application No. 96/17 of 2020 seeking extension of time to file a notice of appeal out of time. It was dismissed by my brother Kitusi JA on 22n d September, 2021. He feels that the decision has errors which can be cured by way of review hence the application for extension of time within which to file the application for review. Mr. Faraji Mangula and Rajabu Mrindoko, learned advocates, appeared for the applicant and respondent respectively. Submitting before me, Mr. Mangula contended that there is an illegality in the decision of the Court because the Judge misconstrued the application as a second

bite application while it was an application for extension of time to lodge a notice appeal against the decision of the High Court. He contended further that, the applicant had no legal representation. He added that counsel for the respondent who was present could not assist the Court in the matter. He cited to me the decision of the Court made in Mohamed Iqbal v. Esron Maryogo, Civil Application No. 141/9 of 2017 on the duty of a counsel to assist the Court. He contended that the applicant has always been in Court fighting for his right. In reply, Mr. Mrindoko contended that in an application for extension of time to file an application for review, the applicant should not only state good cause for the delay but also propose ground of review in terms of rule 66(3) of the Rules and put them in the notice of motion. He contended further that the application does not show the grounds of review in the notice of motion or the supporting affidavit. He cited to me the decision of a single Judge of the Court made in Abdalah Sospeter @ Mabomba v. The Republic, Criminal Application No. 36/08 of 2021 page 6 where it was stated that failure to show the proposed ground of review rendered the application for extension of time to file an application for review incompetent.

Mr. Mrindoko went on to submit that the illegality which is alleged to exist in the decision o f the Court is an afterthought for it does not feature in the application. He went on to contend that the issue of second bite was raised by the Court suo motu and the applicant accepted. He added that, if the applicant was ignorant, that is not a defence. He contended that the applicant was supposed to account for the period of delay from 30th September, 2021 when the decision of this Court was pronounced to 19th July, 2023 when this application was filed, one year and 10 months, for which he has not done. He added that, even if the time spent in prosecuting Application No. 490/17 of 2021 is excluded, still there is a period of 114 days which has not been accounted for. He cited to me the case of Lyamuya Construction Co. Ltd v. Board of Trustees of Young Womens Association of Tanzania, Civil Application No 2 of 2010 to support his stance. He urged me to dismiss the application. Mr. Mangula made a rejoinder and reiterated his earlier position. I had time to peruse the notice of motion, the supporting affidavit and considered submissions made before me. Indeed, in an application of this nature, the applicant has to account for each day of delay or point an illegality in the impugned decision. All these have to be pleaded in the

supporting affidavit before they are brought to the attention of the Court through submissions. The applicant in this case is basing his application in an illegality in the ruling of the Court made in Application No. 96/17 of 2020; That, the Court took the matter as a second bite application for extension of time whereas it was an application for extension of time to lodge a notice of appeal against the decision of the High Court made in Miscellaneous Application No. 312/2019. Much as the argument of Mr. Mangula may sound compelling, but, as correctly pointed out by Mr. Mrindoko, there is no single sentence in the notice of motion or the supporting affidavit stating the illegality. It was only raised by the counsel during submissions. It was thus an afterthought and therefore cannot be acted upon. Further, as correctly observed by Mr. Mrondoko, in an application of this nature, the grounds for review must be stated in the notice of motion in terms of rule 63(3) of the Rules which states; "63(3) The notice of motion for review shall be filed within sixty days from the date o fjudgment or order sought to be reviewed and it shall set out clearly the grounds for review . " [Emphasis supplied].

The notice of motion does not show the grounds for review. It follows that the application before me is misconceived and incompetent. It is dismissed with costs. It is ordered so. DATED at DAR ES SALAAM this 14th day of November, 2024. The Ruling delivered this 19th day of November, 2024 in the presence of Mr. Faraji Mangula, learned counsel for the Applicant and Mr. Rajabu Mrindoko, learned counsel for the Respondent, is hereby certified L. M. MLACHA JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL