Yahya Raj Abu vs Ibrahim Salum Tahfif & Another (Civil Application No. 600/07/2018) [2025] TZCA 953 (8 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 600/07/2018 YAHYA RAJ ABU................................................................APPLICANT VERSUS IBRAHIM SALUM TAHFIF.............................................1 st RESPONDENT AHMED SALUM TAHFIF ............................. .................2 nd RESPONDENT (An Application from the Judgment and Decree of the High Court, Land Division, at Mtwara) (Long wav J.^ dated the 5th day of June, 2009 in Land Appeal No. 18 of 2008 RULING 28th August & 4th September, 2025 MGONYA. J.A.: This is an application for extension of time to give notice of intention to appeal from the decision of the High Court of Tanzania (Land Division) at Mtwara, in Land Appeal No. 18 of 2008. Brief facts to this application are to the effect that: The applicant lodged a Land Application No. 15 of 2007 before the District Land and Housing Tribunal of Lindi at Lindi (the DLHT) against the 1s t and 2n d respondents. After the full trial, the judgment was delivered in applicant's favor. Aggrieved, the respondents lodged an appeal to the High Court of i

Tanzania at Mtwara as Land Appeal No. 18 of 2008. After hearing, the judgment was entered in favor of the respondents. Hence, the applicant intends to appeal against such decision. At the hearing of the application, of which was conducted via virtual court/video conference proceedings, the applicant was represented by Mr. Daimu Khalfani, learned counsel while the 1st respondent was represented by Mr. Keneddy Fungamtama learned counsel. The 2n d respondent in essence is a deceased since April 2019. From the same, the application has been adjourned for three times before other Justices including Kerefu JA, Makungu JA and the late Kwariko JA. The reason for adjournment was to pave the way for the deceased's relatives to appoint the Administrator to the estate of the 2n d respondent. However, up to the time this matter came to Court for the fourth time, still the administrator was yet to be appointed. However, through the letter dated 27thAugust 2025 to the Registrar of the Court of Appeal by learned counsel Mr. Fungamtama, who had access to the 2n d respondent's relative, it was revealed that the process of appointing the legal representative to the 2n d respondent has been abandoned. From that development and after the prayer from both counsel to proceed with the matter pursuant to rule 57(4) of the Tanzania

Court of Appeal Rules, 2009 (the Rules), I granted the prayer. Hence there was no any representation to the 2n d respondent. Before the hearing of the application, Mr. Fungamtama prayed the Court to consider the legal matter to the application under rule 4(2) (b & c) and rule 28 of the Rules, the prayer which did not encounter any objection from the applicant's counsel. Submitting on the appointed legal concern, Mr. Fungamtama averred that, rule 45A (1) of the Rules (amendment) of GN No. 188 of 2024 clearly prohibits the applicant on the second bite before the Court to come with the new ground(s) apart from those which were presented at the High Court for consideration. He said, the purpose of the rule is to prevent the abuse of Court process of which directs the parties to a fair procedure before the proceedings on the second bite. The learned counsel informed the Court that in the present application, the applicant has added several other grounds for consideration contrary to rule 45A (1) of the Rules of which they seem to correct the errors from the High Court. In the cause, he said, the said grounds have been widened to fill the gaps. According to Mr. Fungamtama, this rule has been made to limit the new grounds to the Court from those presented before the High Court to avoid surprises to 3

the adverse party. He said, to allow the applicant to approach the Court with completely new grounds, will weaken the intended appeal as the said new grounds did not surface at the High Court which prevented the respondent to know them earlier. The learned counsel mentioning the new grounds that have surfaced in this second bite application, he averred that, in the Notice of Motion, the applicant has added 3 grounds which were not before the High Court. The same are grounds (i), (ii) and (iv) to the Notice of Motion of which were not before the High Court. The learned counsel insisted that, the said new grounds are not accepted as the same have been brought for the reason to fill in the gaps from the High Court. To bolster his argument, the learned counsel referred me to the case of David Naburi (As Administrator of the Estate of the Late Meeda Nabhuri) v. Stephen Pius Sangu, Civil Appeal No. 332 of 2022. From the above proposition, the learned counsel prayed the Court to allow the applicant to amend the application under rule 20 (1) of the Rules, or dismiss the application in its entirety. Responding to the above submission, Mr. Daimu averred that the second bite right was not affected by the amendment when it was filed. However, he agreed that ground (ii) of the Notice of Motion was not

presented at High Court. Nonetheless, ground (i), its explanation is seen at High Court affidavit in paragraphs 12-17. On ground (iii) which is on illegality, is supported with paragraphs 17 and 20 of the affidavit before the High Court. Further, on ground (iv), he said that it supports paragraphs 2 to 12 of the affidavit. Mr. Daimu conceded that ground (ii) of the Notice of Motion, which goes parallel with paragraph 23 in support of Notice of Motion are the new grounds which did not feature at the high Court. In the event therefore, the learned counsel prayed the Court to allow the applicant to amend the application and proceed with the hearing. In rejoinder, Mr. Fungamtama did not have much, but reiterated in brief his submission in chief. Having heard both parties7submissions in respect of the advanced legal concern in line with the provisions of rule 45A (1) of the Rules, as amended by GN. No. 188 of 2024, I shall now determine the advanced legal concern. Before I venture into determination of this point, having noted that the instant application was filed in 2018,1 see it apposite to reproduce the wording of rule 45A (1) of the Rules, before the amendment, as it was by GN No. 362 of 2017 which provided:

"45A. -(1) Where an application for extension of time to:- (a) lodge a notice of appeal; (b) apply for leave to appeal; or (c) apply for a certificate on a point of law, is refused by the High Court, the applicant may within fourteen days of such decision apply to the Court for extension of time. (2) In computing the time within which to lodge an application under this rule , there shall be excluded such time as may be certified by the Registrar of the High Court as having been required for preparation of a copy of the decision and the order. (3) Every application under sub-rule (1) shall be accompanied by a copy of the decision against which it is desired to appeal and where application has been made to the High Court for extension of time and refused, by a copy of the refusal order." Referring to the above quoted rule which emanated from the Tanzania Court of Appeal Rules (as amended in 2017), of which was used by the time the applicant filed his application on the second bite, the same did not require the applicant to advance the same grounds as they were at the High Court as presented by Mr. Fungamtama. One can note that Mr, Fungamtama wrongly submitted his objection under rule 45A (1) of

the Rules relying under amended Rules in GN No. 188 of 2024 where this application was already in Court. This position was stated in the case of Joseph Paul Kyauka Njau & Another vs Emmanuel Paul Kyauka Njau & Another (Civil Reference No. 5 of 2020) [2023] T2CA 18025 (4 July, 2023) TanzLII where it was stated: "In the later application a party is permitted to raise new grounds for consideration by the Court as the Court lucidly stated in Bishop Roman Catholic of Tanga Vs Casmir Richard Shemkai, Civil Application No. 507/12 of 2017 (unreported) cited in Benedict M. Kezirahabi Vs Loveness Mary D. Kezirahabi, Civil Application No. 572/01 of 2019 (unreported) that: "Our careful reading of Rule 47 of the Rules, we think that a party who is refused the application in the High Court, in making the same application to the Court in the second bite, not bound to front the same grounds advanced at the high Court. He can as well raise new ones in the fresh application and the Court is enjoined to consider them. (Emphasis added)."

From the above position, I find the legal concern advanced by Mr. Fungamtama is misleading and unsupported by the law. I therefore overrule the same and proceed to order the hearing of the application to take place with immediate effect. Ordered accordingly. DATED at DODOMA 4th this day of September, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 8thday of September, 2025 in the presence of Mr. Daimu Khalfani, learned counsel for Applicant, Mr. Kennedy Fungamtama, learned counsel for the Respondent via virtual Court and Mr. Shaban Kanyai, Court Clerk; is hereby certified as a true copy of the original. r * R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 8