anthony lucas vs mosi mwita 2018 tzhc 70 30 april 2018

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM PC CIVIL APPEAL NO. 80 OF 2016 (Arising from Matrim onial Appeal No. 7 o f 2015 o f the D istrict Court o f Kinondoni and Martim oniai Cause No. 81 o f 2014 o f Kawe Prim ary Court) ANTHONY LU CA S.................................. APPELLANT

VERSUS MOSI M W ITA.......................................RESPONDENT Date o f last Order: 23/03/2018 Date o f Judgm ent: 30/04/2018

JUDGMENT I. ARUFANI. J The respondent, Mosi Mwita filed Matrimonial Cause No. 81 of 2014 in the Primary Court of Kawe against the appellant, Anthony Lucas seeking for dissolution o f marriage, maintenance of the child and distribution of the matrimonial assets. After hearing the evidence o f the parties the trial Primary Court ordered in the decision delivered on 13th day of March, 2015 that, there was neither marriage no presumption of marriage between the parties as provided under section 160 o f the Law o f Marriage Act and the child namely, Angel was placed in the custody o f the appellant as the father o f the child. The respondent was dissatisfied by the decision of the trial Primary Court and lodge Matrimonial Appeal No. 7 o f 2015 in the District Court o f Kinondoni to challenge the decision. Upon hearing the appeal the District Court o f Kinondoni reversed the decision of the trial primary court and in its decision delivered on 2nd day of October, 2015 it ordered that, there was presumption o f marriage between the parties, the house at Makongo be valued and sold and its proceeds o f sale to be distributed to the parties and the respondent be given 40% and the appellant 60%, all the house hold utensils were given to the respondent and custody o f the child was placed to the respondent. The appellant was ordered to pay Tshs. 50,000/= in each month as a maintenance for

the child and he was given right o f visiting the child. The appellant was aggrieved by the decision of the District court and decided to appeal to this court through the petition of appeal admitted in the District o f Kinondoni on 17th day o f June, 2016. The grounds o f appeal contained in the petition of appeal filed in the District Court are as follows:- 1. That the Honourable Magistrate erred in law and fact in entertaining an incompetent appeal from Primary Court to District Court as the same was time barred; the appeal was filed in the District Court on 29th day o f April, 2014 about 46 days after the date of the decision against which the appeal was brought when 30 days after delivery of judgm ent expired o f 13th day o f April, 2014.

2. That Honourable Magistrate erred in law and fact in faulting the correct Primary Court decision and allowing the appeal without sufficient reasons.

3. That the Honourable Magistrate erred in law and fact in finding that there was marriage between the parties without sufficient reason.

4. That the Honourable Magistrate erred in law and fact in dividing what is purported to be matrimonial properties and issuing an order of custody and maintenance o f the child of the presumed marriage without any decree o f divorce or separation.

5. That the Honourable Magistrate erred in law and fact in entertaining and relying on evidence on appeal of a docum ent account o f a statement from Tanzania Women's Bank Ltd which was not produced at the hearing and without an order for adduction o f additional evidence or in the alternative that the Court erred in relaying on a docum ent whose nexus to the subject matter was not proved on a preponderance o f probability.

6. That the Honourable Magistrate erred in Law and fact in admitting evidence on appeal hearing.

7. That the Honourable Magistrate erred in law and fact in deciding the appeal against the law. When the appeal came for hearing the appellant was represented by Mr. Amin M. Mshana, learned advocate and the respondent appeared in person. As the respondent is not represented in the matter the counsel for the appellant prayed and the court allowed the appeal to be argued by way o f written submission. I will start with the first ground o f appeal because if it will be sustained there will be no need o f labouring in determining the rest o f the grounds o f appeal as will not add anything substantial to the determination o f the appeal rather than being for academic exercise which this court do not wish to venture at this moment. The learned counsel for the appellant stated in relation to the first ground o f appeal that, the appeal at hand was filed in the District Court o f Kinondoni on 29th day of April, 2014 which is about 46 days from the date o f delivery o f the decision o f the trial Primary Court while 30 days upon which the appeal was supposed to be filed in the District Court expired on 13th day o f April, 2014. He argued that, there is no extension o f time sought to lodge the appeal out o f time under section 20 (4) o f the Magistrates Courts Act, C a p ll R.E 2002 and section 14 (1) o f the Law of Limitation Act, Cap 89 R.E 2002. He argued further that, according to

section 20 (3) of the Magistrates Court Act copies o f judgm ent and decree are not required to be attached to the appeal originating from the Primary Court to the District Court. To bolster his argument he referred the court to the case of Joseph Mtenga V. Jumuiya ya Maendeleo Msigani Mbezi, Civil Appeal No. 101 o f 2002 and Monica Kavishe V. Meek Makundi, Misc. Land Appeal No. 16 of 2006. He stated that, the delay to be supplied with the copies o f judgm ent and decree would have been advanced in an application for extension o f time. He submitted that, as provided under section 3 (1) o f the Law of Limitation Act Cap 89 R.E 2002 any proceeding filed in court after expiration o f the time provided by the law is bound to be dismissed. He also referred the court to the case o f Hezron Nyachia V. Tanzania Union of Industrial and Commercial Workers and Organization of Tanzania Workers Union, Civil Appeal No. 78 of 2001 where it was held by the Court o f Appeal that, the application instituted in court out of time without leave o f the court deserve to be dismissed. He submitted that, the District Court of Kinondoni ought to have dismissed the appeal notwithstanding that, the issue o f limitation was not raised by the appellant in this appeal and pray the first ground o f appeal to be allowed to succeed with costs. In reply to this ground appeal the respondent stated in

her submission that, the appellant has nothing new to tell this court but is intending to waste the precious time o f this court and is trying to deprive the rights of the respondent. She argued in relation to the first ground o f appeal that, it is surprising to see the appellant is coming now with issue o f delay to appeal to the District Court while that point was supposed to be raised at the District Court. She argued that, the appellant attended the matter at the District Court and exchanged the documents o f the appeal with her and attended all the dates of hearing o f the appeal up to the date of decision but he never raised the aforem entioned point. The respondent referred the court to section 110 (1) o f the Law of Evidence Act, Cap 6 R.E 2002 to support her submission. The respondent stated that, after the decision of the Primary Court o f Kawe be delivered, on 13th day o f March, 2015 she applied for the copy o f judgm ent so that she can appeal as she would have not been able to appeal basin on the legal words stated during delivery o f the judgment. She stated that, despite the fact that she made several follow up but the copy o f judgm ent was supplied to her on 21st day o f April, 2015 which is after lapse o f more than one month. The respondent stated that, the copy o f the judgm ent was very vital docum ent to enable the respondent to know where to start in

lodging the appeal in court. She stated that, after getting the copy of judgm ent she found a lawyer to assist her to prepare the grounds o f appeal and managed to file the appeal in court on 28th day of April, 2015. She submitted that, as the appellant was well aware of the appeal and he was given chance to defend the appeal and she didn't raise the alleged point then the first ground o f appeal is baseless and is intended to waste the time o f this court. The court has carefully considered the rival submissions o f the parties in relation to the first ground o f appeal filed in this court by the appellant. After going through the record o f the lower courts, the court has found there is no dispute that the decision of the Primary Court o f Kawe in Matrimonial Cause No 81 o f 2014 was delivered on 13th day o f March, 2015 and the Matrimonial Appeal No. 7 of 2015 was filed in the District Court o f Kinondoni by the respondent on 29th day o f April, 2015. That being undisputed facts, the court has found that, if you count from when the decision of the trial Primary Court was made up to when the appeal was filed in the District Court o f Kinondoni you will find about 46 days had lapsed. Having find those are the days which had lapsed from when the appeal was filed in the District Court, this court has gone through section 20 (3) o f the Magistrates Courts Act and find

the Matrimonial Appeal No. 7 o f 2015 of the District Court o f Kinondoni was filed in the said court out of time because as rightly stated by the learned counsel for the appellant the appeal was supposed to be filed in the District Court within thirty days from the date of the decision. Since the Matrimonial Appeal No. 7 o f 2015 was filed in the District Court after expiration o f the time prescribed by the law the court has found the District Court had no jurisdiction to entertain the appeal filed in the court out o f time and without leave of the court to lodge the same out o f time prescribed by the law. The court has considered the argum ent by the respondent that the point of delaying to lodge the appeal in court was supposed to be raised in the District Court and not in this court which is sitting as the first appellate court and find the same has no merit. The court has arrived to the afore stated finding after seeing the Court o f Appeal stated clearly in the case o f Sebastian 8 Rukiza Kinyondo V Dr. Medard Mutalemwa Mutungi, [1999] TLR 479 that, question o f limitation and jurisdiction of the court to entertain the matter can be raised on appeal and determined by the appellate court like in the matter at hand. As for the argum ent that she delayed to get the copy of the judgment o f the trial court which would have assisted her to prepare the sound grounds o f

appeal the court has found that, the said argument would have been used in seeking for extension of time to lodge the appeal out of time and not to lodge the appeal out of time without seeking for leave o f the court to file the appeal out of time. Upon finding the District Court of Kinondoni entertained the appeal filed in court out o f time and without leave o f the court to file the same out o f time, the court has found the first ground o f appeal has merit and deserve to be allowed. The court has found this ground is enough to dispose of the appeal and there is no need to continue to deal with the rest of the grounds of appeal. In the premises the court is hereby quashing the proceeding and judgm ent o f the District Court of Kinondoni made in Matrimonial Appeal No. 7 of 2015 for being null and void as the District Court o f Kinondoni had no jurisdiction to entertain the matter lodged in the court out o f time and without leave of the court to lodge the same out o f time. Each party to bear his own costs in this matter. It is so ordered. Dated at Dar es Salaam this 30th day April, 2018 I. ARUFANI

JUDGE 30/ 04/2018 10