Luther Godfrey Malle vs Mwajabu Mohamed Salehe (Civil Appeal No. 9 of 2023) [2025] TZCA 828 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KOROSSO. J.A., MAKUNGU. 3.A. And RUMANYIKA. J.A.^ CIVIL APPEAL NO. 9 OF 2023 LUTHER GODFREY M A LLE.......................................................APPELLANT VERSUS MWAJABU MOHAMED SALEHE ........................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, (Land Division) at Dar es Salaam) (Wambura. 3.) dated the 5th day of May, 2017 in Misc. Land Application No. 550 of 2015 JUDGMENT OF THE COURT 29h July & 7th August, 2025 MAKUNGU, 3.A.: This appeal originates from the decision of the High Court of Tanzania, Land Division, at Dar es Salaam, (Wambura, J) in Misc. Land Application No. 550 of 2015 dated 5th May, 2017. The application giving rise to the impugned decision was lodged by the appellant, Luther Godfrey Malle, against the decision of the District Land and Housing Tribunal (the DLHT) for Ilala at Ilala in Application No. 107 of 2013 dated 9th October, 2013. According to the affidavit supporting the application, the appellant blames the DLHT for its late supply of the copies of ruling, decree and proceedings in respect of the aforementioned Application for the intended appeal.

Having heard the parties, the High Court took the view that the period of delay was not accounted for by the appellant and in the end, it dismissed the application for lack of sufficient cause. Aggrieved by the decision of the High Court, the appellant has now appealed to this Court. He has marshalled a memorandum of appeal on three grounds of appeal as follows:-

1. The trial High CourtJudge erred in law and fact by failing to analyze the conditions precedent that led to the appellant's failure to file the appeal to the High Court within time.
2. That there exists serious issue o f illegality during the trial, as the first proceedings were initiated by SOPHIA IDD, now deceased, but no proceeding shows the changes from Sophia Idd to the respondent.
3. That the proceedings of the High Court are tainted with illegality as the proceedings do not indicate the disposition o f the preliminary objections. When the appeal was called on for hearing, the appellant was represented by Ms. Lucy Nambuo, learned advocate whereas the respondent appeared in person without representation. Both parties filed written submissions in compliance with Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009. When the appellant was invited to argue his appeal, Ms. Nambuo adopted the written submission filed by the appellant before the Court and prayed,

that they be part of her oral submission. She briefly submitted that the appellant's application before the High Court was wrongly dismissed. She attacked the learned High Court Judge for her failure to consider reasons given by the appellant in his written submission on why he failed to file his application for extension of time within the prescribed time. She prayed the Court to consider those reasons and allow the appeal with costs. On her part, the respondent also prayed to adopt her written submission filed before the Court. Being a lay person she had nothing material to reply on the appellant's submission. However, she prayed the Court to dismiss the appeal with costs. At the outset, we think that we should refrain from determining the second and third grounds of appeal for two obvious reasons. One, that the two grounds of appeal which revolve on the issue of illegality of the decision sought to be challenged were not featured in the appellant's affidavit in support of the application for extension of time before the High Court. (See page 2 of the record of appeal). It is now a settled position of the law that the ground which was not featured in the affidavit in support of the application is taken to be an afterthought and thus unworthy of consideration. See the cases of Zuberi Athumani Mbuguni v. National Bank of Commerce Limited, Civil Application No. 311/12 of 2020 [2023] 3

TZCA 17290 and Hamis Ally Kwembe v. Siamini Markus Komba & Others, Civil Appeal No. 647 of 2024 [2025] TZCA 670. Two, the said grounds were not fronted to be considered anddecided by the High Court. Even the appellant's written submission in support of the application as appearing on pages 11 to 12 of the record of appeal, was silent on that aspect. As a general principle, a higher court is precluded from determining a matter, which was neither raised nor decided by the lower courts. See our previous decisions in Jongo Mwikola v. Geita Gold Mining Limited, Civil Appeal No. 344 of 2020 [2024] TZCA 125 and Sunshine Furniture Co. Ltd v. Maersk China Shipping Co. Ltd & Another, Civil Appeal No. 98 of 2016 [2020] TZCA 1934. In the circumstances, since the High Court did not make a finding on the said issue, this Court has no jurisdiction to entertain the same, and as such, ought to be ignored or struck out. Therefore, the only issue for our determination is whether the appellant demonstrated sufficient cause to warrant the court to extend the time sought which falls under ground one of the appeal. In this appeal, the appellant contends that his delay was attributed to the fact that the DLHT delayed in supplying him with the necessary documents for appeal purposes. In other words, the appellant sought to rely on section 19 (2) and (3) of the Law of Limitation Act, [Cap. 89 R.E 2019]

which provides for an automatic exclusion of the period spent for obtaining a copy of judgment, ruling, decree or order sought to be challenged in computing the prescribed limitation period. However, under the said law, it is plain that to enjoy the exclusion, the litigant has to provide proof of records of dates of critical events for the reckoning of the prescribed limitation of period, which are the date of delivery of the impugned decision, the date on which a copy of the decree or judgment was requested and the date of the supply of the requested documents. See the case of Alex Senkoro & Others v. Eliambuya Lyimo, Criminal Appeal No. 16 of 2017 [2021] TZCA 104. In the matter at hand, as stated earlier on the affidavit is silent as to the date on which the aforementioned copies of ruling and proceedings were requested. What is stated is only that in respect of the date on which the decision was delivered [9th October, 2013] and the date on which the copies of the same were supplied to the appellant [30th September, 2014]. Notably, the date on which the appellant requested the copies was mentioned in the appellant's written submission in support of the application. In our view, as the date only came out of the written submission and not in the founding affidavit, the same is a statement from the bar deserving no consideration by the Court. See the case of Zuberi Athumani Mbuguni (supra). 5

On those premises, it is without any doubt that the appellant cannot enjoy the automatic exclusion of the days. It follows that he was duty-bound to account for the days from 9th October, 2013 the date the impugned decision was issued, to 18th September, 2015 when he applied for extension of time before the High Court. Assuming that the appellant had enjoyed the automatic exclusion from 9th October, 2013 to 30th September, 2014 when he was supplied with the copies, it is our view that the period from 30th September,2014 until 18th September, 2015 when the application for extension of time was lodged, has remained unaccounted for. Apparently, in his written submission, at page 11 of the records of appeal, the appellant also pleaded technical delay, justifying that his previous application for extension of time before the High Court was filed on the 5th November, 2014 and then withdrawn on the 15th September, 2015 with leave to refile. Unfortunately, the ground of technical delay was also not featured in the founding affidavit, and thus the same deserved no consideration by the High Court. Be it as it may, the period from 30th September, 2014 when the copies were supplied to the appellant, to 5th November, 2014, when the first application for extension of time was filed, have not been accounted for. It is therefore, our observation that the appellant has failed to account for each day of delay as required in application of the present nature. See the cases 6

of Joseph Paul Kyauka IM jau & Another v. Emmanuel Paul Kyauka Njau & Another, Civil Application No. 7/05 of 2016 [2017] TZCA 318 and Julius Matogolo v. Henerico Lugayila, Civil Appeal No. 492 of 2020 [2024] TZCA 96. For the foregoing observations, we agree with the finding of the learned High Court Judge that the appellant failed to advance good cause to warrant extension of time. Having so found, we dismiss the first ground of appeal and the appeal is therefore dismissed with costs. DATED at DAR ES SALAAM this 7th day of August, 2025. W. B. KOROSSO JUSTICE OF APPEAL O. O. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025, via teleconference in the presence Ms. Lucy Nambuo, learned counsel for the Appellant, the Appellant and Respondent present in person, is hereby certified as a true copy of the original.