ELISA MOSSES MSAKI v YESAYA NGATEU MATEE 1990 TLR 90 (CA)

 ELISA MOSSES MSAKI v YESAYA NGATEU MATEE 1990 TLR 90 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mnzavas JA

4 August, 1990

Flynote

B Court of Appeal Rules - Application for leave to appeal to the Court of Appeal -

Matters to be considered.

-Headnote

In an application for leave to appeal to the Court of Appeal the Court found that the

matters on which the applicant C sought to base his appeal were new matters which

were never at issue in the trial court nor raised at the High Court on appeal.

Held: The Court of Appeal will only look into matters which came up in the lower

court and were decided; not on D matters which were not raised nor decided by

either the trial court or the High Court on appeal.

Case Information

Leave refused.

E Desouza for appellant

Shayo for respondent.

[zJDz]Judgment

Mnzavas, J.A.: This is an application under rule 43 (b) and 44 of the Court of Appeal

Rules and under Section 5 F (1) (c) of the Appellate Jurisdiction Act 1979; against the

Ruling of Mwakibete, J. delivered on 31/8/89.

The dispute between the parties that has culminated to this application started in

Moshi RM's Court as RM Civil Case No. 54/ 82. The dispute was over two houses and

the trial court was required to decide whether the two G houses belonged to the

applicant's father alone or whether they were jointly owned by the parties i.e. Elisa

Mosses Msaki and Yesaya Ngateu Matee. After a full trial by the court of first instance

the Court was satisfied, and came to the conclusion that the two disputed houses were

jointly owned by the parties. Dissatisfied by the decision of the H district Court the

applicant appealed to the High Court in High Court Civil Appeal No. 19 of 1985. The

appeal was dismissed on 8/7/88, (Munuo, J.), and the decision of the trial Court

affirmed.

I Before this Court Mr. Desouza, learned counsel for the applicant, argued in

support of the application that both the trial court and the High Court erred in not

deciding as to who between the parties was the

1990 TLR p91

MNZAVAS JJA

owner of the plot on which the houses are built. This failure, it was argued has caused

a lot of difficulties as A ownership over the plots remains unresolved. It was

submitted that the point regarding ownership of the plot was basic and that this Court

should grant the application although it was not raised in the High Court. B

Held: (1) that the question of ownership of the plot on which the two houses are

built was neither the issue in the RMs Court nor in the High Court.

(2) Secondly it was submitted that the application is out of time as, it was

argued, it was in contravention of C the provisions of Rule 43 (b) of the Court of

Appeal Rules which specifies that such application should be lodged within 14 days

from the ruling of the High Court. According to Mr. Shayo's argument the Ruling of

the High Court was delivered on 10/8/89 and this application was filed on 13/9/89. D

I will first deal with the question of limitation. I agree with Mr. Shayo's submission

that the ruling of the High Court is dated 10/8/89 but as rightly argued by Mr.

Desouza the actual reading of the ruling to the parties was on 31/8/89. E That being

the position the application to this Court for leave is timeous.

Coming to the argument as to whether there is in this case question of law calling for

determination by this Court I have read the judgment of the trial court and I am

satisfied that the issues between the parties in the RM's Court F was about

ownership of the houses. Equally, in the appeal before the High Court the issued

canvassed by the learned counsels for the parties was that of ownership of the houses

and the question as to who should collect rent from the houses.

The question as to who was the owner of the plot on which the houses stood neither

featured in the Court of first G instance nor in the High Court. This Court will only

look into matters which came up in the lower Court and decided; not on which were

not raised nor decided by neither the trial Court nor the High Court on appeal.

The decision of the Court of first instance regarding ownership of the houses was

wholly based on matters of fact H involving credibility of the witnesses. That being

the position I am far from being persuaded by Mr. Desouza's submission that the

learned High Court Judge armed in coming to the conclusion that there were no

points of law involved in this case calling for determination by this Court. I

1990 TLR p92

A Accordingly this application for leave to appeal to this court fails. The respondent

to have his costs.

Leave refused.

1990 TLR p92

B