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