Guhenga Ng'hongoke and 2 Others vs Joseph Jengwa and 3 Others (Civil Application No. 197/14 of 2024) [2024] TZCA 998 (28 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: JUMA. CJ.. MWAN DAM BO, J.A And RUMANYIKA. J.A.^ CIVIL APPLICATION NO. 197/14 OF 2024 GUHENGA NG'HONGOKE ......................................................... 1 st APPLICANT NGUSA NG'HONGOKE ............................................................. 2 n d APPLICANT NG'HANGA NG'HONGOKE........................................................3 rd APPLICANT VERSUS JOSEPH JENGWA................................................................ 1 S T RESPONDENT NKOLA KULWA...................................................................2 n d RESPONDENT DOTTO JESAGWA............................................................... 3 rd RESPONDENT SENI NKOLA...................................................................... 4 th RESPONDENT (Application for striking out the notice of appeal arising from the decision of the High Court of Tanzania at Shinyanga) (Kulita, J) Dated 5th day of June 2023 in Land Appeal Case No. 3 of 2022 RULING OF THE COURT 24th & 28th October, 2024 MWANPAMBO, J.A.: The applicants have moved the Court under rule 89 (2) of the Tanzania Court of Appeal Rules,2009 (the Rules) for an order striking out a notice of appeal from the decision of the High Court (Kulita, J) sitting at Shinyanga made on 5 June 2023 in Land Appeal Case No. 3 of 2022. It is contended in the notice of motion that the respondents have not taken essential steps in the appeal by their failure to apply for leave to appeal which is a mandatory

requirement in appeals originating in the District Land and Housing Tribunal. The averments in the affidavit annexed to the notice of motion make a chronology of events from the date of the impugned decision to the date of filing the application. The respondents resist the application through the affidavit in reply deponed to by Ms. Stella Thomas Nyakyi, learned advocate. Essentially, while admitting their failure to file an application for leave to appeal, they contend that, leave to appeal is no longer a legal requirement warranting an order striking out the notice of appeal. Mr. Frank Samwel, learned advocate representing the applicants appeared at the hearing of the application urging us to grant the application on the basis of the ground set in the notice of motion and the averments in the founding affidavit. In the course of his address, counsel conceded that, leave to appeal is no longer a legal requirement. Responding to a question put to him by the Court, Mr. Samwel pointed out that, the respondents did not comply with rule 90 (5) of the Rules by their failure to follow-up with the Registrar, High Court for delivery of copies of the documents they had requested for the purpose of their intended appeal. The learned advocate argued that there is no indication in the affidavit in reply that the respondents have done so or that they have instituted their appeal. He thus invited us to grant the application and strike out the notice of appeal with costs. 2

Not surprisingly, in her reply, Ms. Nyakyi reiterated the averments in the affidavit regarding abolition of the requirement for leave to appeal. She argued that since failure to apply for leave to appeal was the only ground the applicants moved the Court to strike out the application, the notice of appeal ought to be found to be valid and the application dismissed with costs. On the other hand, the learned advocate conceded on the failure to comply with rule 90 (5) of the Rules, but argued that, that was not taken as ground for striking out the notice of appeal. It was her further submission that, as the respondents had lodged an application to withdraw the notice of appeal before the Court, it was no longer necessary to follow-up the requisite copies from the Registrar as they were no longer intending to pursue an appeal but a review before changing their strategy resorting to an appeal. Having heard the arguments of the learned advocates for and against the application, it is no longer in dispute that, due to the amendment to section 47 (1) of the Land Disputes Courts Act by the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023, leave to appeal from decisions of the High Court in exercise of its appellate and revisional jurisdiction is no longer a requirement. It is significant that, the requirement for leave to appeal falls under the category of procedural laws which apply retrospectively. Indeed, Mr. Samwel conceded as such that the amendments to the law abolishing the requirement for leave to appeal from the decisions 3

of the High Court in its appellate jurisdiction in first appeals applied retrospectively. That being the case, we endorse Ms. Nyakyi's submission that the application is, to that extent, misconceived. Ordinally, after finding the applicant's sole ground in support of the application as redundant, we would have dismissed the application as urged by Ms. Nyakyi. However, the peculiar circumstances in this application dictate otherwise. It will be recalled that, Mr. Samwel urged us to strike out the notice of appeal in any event by reason of the respondents' non-compliance with rule 90 (5) of the Rules. Despite her concession, Ms. Nyakyi contended that the Court cannot strike the notice of appeal on a ground not raised by the applicants in the notice of motion. With respect we do not agree with the learned advocate mindful of rule 91 (a) of the Rules which stipulates: " Where a party who has lodged a notice o f appeal fails to institute an appeal within the appointed time: (a) he shall be deemed to have withdrawn his notice of appeal and shall, unless the Court orders otherwise, be liable to pay the costs o f any persons on whom the notice o f appeal was served arising from that failure to institute the appeal." Admittedly, it may not always be easy for the Court becoming aware of failure to institute an appeal in each and every case. Luckily in this application, the respondents have conceded through their advocate of their failure to

institute their appeal within the appointed time for whatever reason. It is remarkable that parties to the application are the same in Civil application No. 204/14 of 2023 lodged in Court on 28 September, 2023, 14 days after the applicants had lodged the current application on 14 September 2023 seeking to withdraw the very notice of appeal now sought to be struck out. Whether it was just a coincidence for the two applications to be filed in such a short interval is not our concern. What appears to be clear is that, the respondents had no intention of taking any step in the appeal, compliance with rule 90 (5) of the Rules included after lodging their application to withdraw the notice of appeal. To our surprise, after a year, they became wiser and prayed to withdraw it on the date it was called on for hearing before us on 21 October 2024. The above said, it is our firm view that regardless whether or not non- compliance with rule 90 (5) of the Rules was a ground in the application, the Court is not precluded from raising it as it did in the course of hearing. That became necessary mindful of the dictates of rule 91 (a) of the Rules upon being satisfied of the non-compliance conceded by the respondents. In the event, we hold that the respondents have indeed failed to take an essential step to institute their appeal within the prescribed period warranting an order striking out the notice of appeal. The application is

accordingly granted and the respondents' notice of appeal lodged on 27th June 2023 is hereby struck out with costs. Order accordingly. DATED at SHINYANGA this 25th day of October, 2024. I. H. JUMA CHIEF JUSTICE L.J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 28th day of October, 2024 in the presence of the Mr. Frank Samwel, learned counsel for the Applicant and in the absence of the Respondent's counsel though duly notified, is hereby certified as a true copy of the original. COURT OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR