Baraka Chidundo

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CIVIL APPEAL NO. 16618 OF 2024 (Arising from Civil Appeal No. 10060 of 2024 of Cairo District Court at Cairo) BARAKA CHIDUNDO (As administrator of the estate of the late JEREMIAH CHIDUNDO) APPELLANT VERSUS KIKUNDI CHA KIUCHUMI CHA MSIMAMO ... RESPONDENT Date of last order: 29/10/2024 Dateof Judgment: 10/12/2024 JUDGEMENT MAGOIGA,J. The appellant, BARAKA CHIDUNDO aggrieved with the decision of the Cairo District Court at Cairo (first appellate court) in Civil Appeal No. 10060 of 2024, now appeals to this court with two grounds of appeal formulated as follows: - 1. That the magistrate erred in iaw and fact in determining that the appeai wasfiied outoftime contrary to the iaw and practices ofthe court. Page 1 of 19 Z That the magistrate erred in law and facts by not considering that the deiay in payment of court fees was caused by the court itseif and not the appeiiants negligence. On the strength of the above grounds of appeal, the appellant prayed that this appeal be allowed and set aside the decision and order of the first appeilant court. The facts pertaining to this appeal are imperative to be stated and will greatly assist this court in determining the matter at hand. At Cairo Primary Court, vide Civil Case No.08 of 2024, the respondent herein successfully instituted a civil suit against the appeliant in a decision deiivered on 26^^ March 2024. Aggrieved with the decision , of Primary court, the appellant preferred Civil Appeal No. 10060 of 2024 before Cairo District court but which was struck out with costs on a point of preliminary objection on 27^^ June 2024 for being time barred. Against the above backdrop, the appellant preferred this appeal challenging the first appellate court findings, hence, this judgement after hearing parties on merits. When this appeal was called on for hearing, the appeilant was represented by Mr. Stephano Nypngoto Njcholaus, learned advocate. And Page 2 of 19 the respondent enjoyed the legal service of Mr. Saul Sikalumba, learned advocate. The hearing was done through written submissions. Both learned advocates for parties complied with the orders of this court. I commend them for their insightful input on this appeal. Submitting in support of the appeal on the first ground, Mr. Nicholaus argued that being aggrieved by the judgement in Civil Case No. 08 of 2024 before Cairo Primary Court dated on 26/03/2024, the appellant filed his appeal at Cairo District Court. Mr. Nicolaus pointed out that appeals from the primary court to the District Court are guided under section 20 (3) of The Magistrates' Courts Act, Cap 11 R.E 2019 which has to be filed within 30 days after the judgement. The learned advocate stated that, the appeal before Cairo District was filed electronically through the judicial portal on the 22"^ day of April 2024, in adherence to rule 21 (1) of The Judicatgre and Application of Laws (Electronic Filing) Rules of 2018. Mr. Nicholaus asserted that in adherence to the requirement of filing documents electronically, the appellant complied with the requirement in time, whereas the appeal was filed on 22/04/2024, which was the 27^^ day after the judgement, and, therefore, the appellant complied with electronic filing rules. Mr. Nicola us further stated that the law also requires that upon Page 3 of 19 filing the documents eiectronlcaliy, one must comply with the requirement of the Court Fee Ruies of 2018, which under ruies 3 and 5 provides that a document is considered fiied upon payment of court fees, and the appeilant obtained a control number for payment of the court fee on 25/04/2024 and paid it on the same day at 09:50. According to Mr. Nicholaus, therefore, upon payment of the requisite court fee, the appeal was deemed to be properly filed on 25/04/2024. The advocate cited the case of John Chuwa vs. Antony Ciza(1992)TLR 233 to expound their assertion, where it was held that: - "The date offiling is the date ofpayment ofthe fees and not that of receipt ofrelevant documents in the registry". Mr. Nicholaus argued that taking into consideration the date of payment of the court fee, which was on 25/04/2024, the appeal before Cairo District Court was fiied on the 30^^ day of the limitation and therefore was properiy filed on time. He asserted that in calculating the days of limitation on appeal from the primary court to the district court, there are days that are automaticaily excluded; this includes the day on which the impugned judgement was delivered and the day on which the appeai was iodged. The advocate stated that the position was provided in the case of Abdon Page 4 of 19 Jackson Mkuchu vs. Kuya Lembagwa Munde and 5 others (P.C. Criminal Appeal No.08 of 2023)[20241TZHC 5614(2 April 2024)], whereas Mansoor, J., at page 6, held that; Therefore^ counting from 01/06/2023^ after the impugnedjudgement was deiiveredf to 04/07/2023, when the instant appeai was hied, is thirty-one days, not thirty-three days as ciaimed by the respondent counsei. That means two days have been exciuded (01/06/2023, when thejudgement was deiivered, and04/07/2023, when the appeai was iodged), and thus the appeiiant is bound to teii this Court as to why his petition shouid not be considered time barred for one-day deiay on fiiing. Mr. Nicholaus argued further that, taking the same view, it is trite law and practice of this court that in calculatiiig the time limitation on appeal, two days are automatically excluded from the limitation, which is the day on which the impugned ruling or judgement was obtained and the day op which the said appeal was filed. He asserted that since the judgement subject of this appeal was derived on 26/03/2024 by Cairo primary court in Civil Case No. 08 of 2024 and the appeal case Number 10060 of 2024, which is subject to this appeal, was filed to the district court of Cairo properly filed after Page 5 of 19 payment of court fee on 25/04/2024, then, upon excluding the said two days, which are 26/03/2024 and 25/04/2024, the said appeal was filed on the 29^^ day of limitation and therefore properly filed within 30 days of limitation as per the provisions of section 20(3) of the Magistrates' Courts Act. Mr. Nicholaus, in strong terms, argued that it was improper for the first appellate court to determine that the appeal was filed after the lapse of 31 days while counting the days from the date on which the primary court judgement was delivered to the date when the appeal was filed to the district court and upon excluding the two days, which are the date on which the judgement was delivered and the date on which the appeal was filed, on 25/04/2024, which is the 29^*^ day on limitation as per compliance with the requirement of section 20(3) of the Magistrates Courts Act. The learned advocate for the appellant urged this court to allow this ground. On the second ground of ;appeal, Mr. Nicholaus argued that the appellant paid the prescribed court fee on the same date, 25/04/2024, to which he was availed with the control number from the court register, and therefore, there was no negligence on the part of the appellant in the payment of the court fee as adduced by the first appellate court magistrate. Page 6 of 19. The advocate cited the case of Maliselino B. Mbipi vs. Ostina Martine Hyera (Misc. Civil Application No. 08 of 2022)[2022] TZHC 14256 (18 October 2022),Tanzlii when the court determines different challenges that can face the Issue of electronic filing and payment of court fees, whereas different Issues were addressed by the court, Including the filing of documents on time and obtaining a control number to effect payment out of time, and the court held that this should not affect the Innocent party. Mr. NIcholaus asserted that from their scenario, the appellant filed the case In time and paid the prescribed fee on time and on a date to which control numbers were made available to him, and therefore. If there is any delay on payment of the court fees, that should not In any way be deglded against the appellant on the account of negligence; nevertheless, that should be taken as a technical mistake and delay pf the court Itself; therefore the appellant should not be punished In any way by the court official's mistake. Having all stated above, the advocate prayed for this appeal to be allowed with costs, setting aside both the ruling and order of the first appellant court. Page 7 of 19 In response, Mr. Sikalumba, strongly contended that appeals from the primary court to the district court are statutory, and it is governed by the Magistrates' Courts Act, Cap. 11 R.E. 2019 under Section 20(3) as provides that: "Every appeal to a district court shaii be by way ofpetition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought" (emphasis supplied). Mr. Sikalumba argued that the records of the first appellate court are clear and that the appeal was filed out of time, as it seems to have been filed on 05^^ June 2024, which was basically out of time. The advocate stated that even the counsel for the appellant in his submission failed to state exactly when the appeal was filed, as he says that it was filed on the 30*^^ day, and in the very same submission, he says that the appeal was filed on the 29^^ day upon exclusion of two days as per the case of Abdon Mkuchu (supra). Mr. Sikalumba stated that he had managed to go through the said case and found that the exclusion of two days had reasons that are stipulated therein at pages 6 and 7 of the ruling, so is distinguishable in the situation we have. Rage 8 of 19 Mr. Sikalumba stated that in the case at hand, the appellant has never given any reason for his delay In filing his appeal within time; he just stjcks with his belief that his appeal Is within time, but If this court goes through the records of the first appellate court. It will realize that the appeal was filed out of statutory time and no extension of time was applied for by the appellant. He made an emphasis by cited section 20(4) (a) of the Magistrates' Courts Act,[Cap 11 R.E. 2019] herelnabove referred to, which provides that: "Notwithstanding the provisions ofsubsection (3), the district court may extend the time for fiiing an appeai either before or after such period has expired". Mr. Sikalumba argued that much as the appellant never bothered tp apply for leave to file his appeal out of time, so the Instant appeal Is Incompetent and ought to be dismissed with costs. The advocate stated further that the provisions regarding an appeal from the primary court to the district court do not provide for the requirement of annexing the judgement appealed against, such that It cannot be a defence for the appellant was awaiting the judgement to be provided to him. He contended that In a situation where the appellant Intends to get a copy of the judgement, then ; Page 9 of 19 , an application for an extension of time to file an appeal has to be made to this court; likewise, time starts running from the date the judgement is pronounced and not the date from which the judgement is availed. Mr. Sikalumba argued that the High Court of Tanzania has, in various cases, not been hesitant in dismissing appeals that have been lodged beyond the statutory time of 30 days and without leave of the court because in taking court actions, time is of the essence. The advocate cited the case of Madaraka Halid vs. Lung'wecha Mashjli(PC)Civil Appeal No. 142 of 2001, HC Mwanza Registry (unreported), his Lordship Mackanja J., dismissed the appeal lodged out of time, remarked at page 2 that: The judgement and decree against which the appeai was preferred was deiivered on ICf^ November 2000. However, it appears that the defendant did not act with promptitude because, instead of iodging the appeai within 30 days as prescribed by section 20 of the Magistrate's Courts Act, he didso weii after thatperiod had expired... Because the appeal before the District Court was fiied out of time,itfoiiows that the proceedings before the District Court are nuiiand void"(emphasis suppijed). Page 10 of 19 Mr. Sikalumba argued that the appeal before the district court was rightly dismissed as it was filed out of time. He stated that the appeal was filed online within time, as the same is not found in the system, which shows that the appeal was filed on the 06^'^ day of May 2024, which is typically out of time. The advocate further stated that the rules are very clear; the document is deemed to have been filed upon payment of the required court fees as elaborated by Hon. MIyambina J. in the case of Maliselmo B. Mbipi vs. Ostina Maitine Hyera, Misc. Civil Application No.08/2022 HC at Songea (unreported). Mr. Sikalumba expounded that if the appeal was filed within time as alleged by the appellant counsel, how come the case is seen to have been registered on the 05^^ day of June 2024? He said that the court records are clear as to when the case was filed, and this court is in a position to see whether the appeal was filed within time or not. The advocate ended by stating that, based on the authorities cited hereinabove, humbly prayed this appeal be dismissed with costs. In rejoinder, Mr. Nicholaus reiterated his submission in chief by adding that the first appellate court in its judgement at page 10, paragraph 1, provides that, in this regard, the appeal at hand, which was lodged via the Page 11 of 19 electronic filing system on 22^^ April 2024 and admitted on 24^^ April 2024, and the corresponding fee being paid until 25'^'^ April 2024, is deemed to have been filed on the later day when the appropriate fees were evidently paid. He stated that,from the records of the judgement, which is subjected to this appeal, it provides that the appeal was filed on 25^*^ April when the appropriate fees were paid and not on 05^*^ June 2024 as proclaimed by the respondent. Mr. Nicholaus argued that there was no need to seek an extension of time to file the appeal out of time as argued by the respondent advocate since the appeal was filed in accordance of the law and within the prescribed time of limitation, which is 30 days. He further stated that 05^^ day of June 2024, was not the date of filing the appeal at the first appellate court but rather the date in which the court registry received the hard copies for stamping, as clearly indicated by the case of John Chuwa v. Antony Ciza (supra). Mr. Nicholaus stated that they borrowed the words from page 3, paragraph 2, of the respondent's reply tOvthe submission, which supports their position, as in their own words, citing the case of Malliselino B. Mbipi V. Ostina Martune Hyera Mise, Civil Appeal No. 08/2022 HCT at Page 12 of 19 Songea (unreported), provided that; the rule is very clear that the document is deemed to have been filed upon payment of the required court fees and for their side the court fees has paid on 25^^ April 2024; hence the appeal was properly filed on time hence he prayed this appeal be allowed. This marked the end of the hearing of this appeal. The noble task of this court now is to determine the merits or otherwise of this appeal after hearing the rivaling parties' submissions on the grounds raised and argued for and against. I will deal with the grounds as dealt with by parties'trained minds on this appeal. Both grounds of appeal will be argued jointly as their contentions is entwined and the issue of determination in this appeal is whether the petition of appeal before the first appellate court was lodged on time or not. Mr. Nichoiaus, advocate for the appellant in his submission, asserted that after the judgement by Cairo Primary Court in Civil Case No. 08 of 2024 delivered on 26/03/2024, then the appeal before the Cairo District Court in Appeal No. 10060 of 2024, which is subject to the instant appeal, was filed properly after payment of court fee paid on 25/04/2024. And upon excluding the said two days, which are 26/03/2024 and 25/04/2024, the said appeal Page 13 of 19 was filed on the 29^*^ day of limitation and therefore fiied within 30 days per section 20(3) of the Magistrates' Courts Act (supra). Mr. Sikaiumba strongly disputed this appeal being granted because the , appeliant was time-barred and never bothered to apply for leave to file his appeal out of time as required per section 20(4) of the Magistrates' Courts Act, Cap. 11 R.E 2019. He argued that appeai from the primary court to the district court is statutorily provided that it has to be filed after 30 days of the judgement and it is governed under Section 20(3) of the Magistrates' Courts Act, Cap. 11 R.E. 2019. Mr. Sikaiumba further stated that time starts running from the date when a judgement is pronounced and not the date from which the judgement is availed, so the instant appeai is incompetent and ought to be dismissed with costs. Having dispassionateiy considered the records of the first appellate court, I found that the judgement of the trial court was delivered on th? 26^^ day of March 2024, and the appeal, at the first appellate court was electronically filed on the 22"^ day of April 2024, while the prescribed fees of Tzs.20,000/= for that appeal were paid on 25^*^ April 2024 at 09:50 via CRDB WAKALA, Receipt No. 18fl403c6edf08f8. The important question to be answered by this court under the current case filing registration is when is a Page 14 of 19 matter considered to be filed before the court; the answer is very clear: that matter is deemed to be filed in the court once the applicant or petitioner has paid the requisite court fees. This position was explained by my learned brother Mugeta, J in the case of Bakema Said Rashid vs Nashon William Bidyanguze and 2 Others CEIection Reference 1 of 2020)[2020] TZHC 4200(14 December 2020), Tanzlii, who cited the case of John Chuwa V. Antony Ciza [1992]TLR 233 stated that; 'The date offiling is the date ofpayment ofthe fees and not that of receipt ofthe relevant documents in the registry'' Thus, according to section 20(3) of the Magistrates' Courts Act/ Cap. il R.E. 2019 provides that: "Every appeal to a district court shall be by way ofpetition and shaii be filed in the district court within thirty days after the date of the decision or order against which the appealis brought" Likewise, section 19(2) of the Law of Limitation Act [CAP. 89 R.E. 2019] provides that; "(2) In computing the period oflimitation prescribed for an appeal, , the day on which the judgment compiained of was deiivered, and shaii be exciuded"[Empasis added]. Page 15 of 19 Not only section 19(2) of Cap 89 R.E.2029 but also section 60(1)(b) of the Interpretation of Laws[Cap 1 R.E 2019] gives a better way of counting days given the use of the word used on each sub section. Section 60 of Cap 1 for easy of reference provides as follows: Section 60. Computation oftime (1)In computing time for the purposes ofa written iaw- (a) where a period oftime is expressed to be at, on,or with a specified day, that day shaii be inciuded in the period; (b) where a period oftime is expressed to be reckonedfrom, or after, a specified day, that dav shaii not be inciuded in the period! (c) where anything is to be done within a time before a specified day, the time shaii notinclude that day; i ■ ' (d) where a period of time is expressed to end at, on, or with a specified day or to continue to or untii a specified day, that day shaii be inciuded in the period; (e) where the time limitedforthe doing ofa thing expires orfails upon an excluded day, the thing may be done on the nextday thatis notan excluded day; ■ ' ■ Page 16 of 19 (f) where there is a reference to a number ofdear days or "atleast" or "not less than"a number of days between two events^ In calculating the number ofdays there shall be excluded the days on which the events happen; (g) where there Is a reference to a number ofdays not expressed to be dear days or "at least"or "not less than"a number of days between two events. In calculating the number ofdays there shall be excluded the day on which the firsteventhappensand there shallbe Included the day on which the second event happens; (h) where an act or proceeding Is directed or allowed to be done or taken on a certain day, or on or before a certain day, then. If that day Is an excluded day, the act or proceeding shall be considered as done or taken In due time IfItIs done or taken on the next day thatIs notan excluded day. (2) For the purposes of this section, "excluded day" means Saturday, Sunday or public holiday throughout orIn thatpartof which Is relevant to the event, act, thing or proceeding concerned. Now, therefore, from the foregoing It should be noted that, and to make myself clear the use of the phrase ^after the judgement'in in section 20(3) of the Act was meant to exclude the day in which the judgement was delivered. See the case of Akiba Commercial Bank PLC Vs. UAP Insurance(T) LTD,Commercial Case No.24 of 2018 HCCD(DSM)at Page 17 of 19 Tanzlii in which this court faced with akin and similar situation interpreted the use of the words as provided in section 60 of[Cap 1 R.E.2019] Therefore, once the date of judgement is excluded, then, without much ado, the appeal before the first appeal court, filled and prescribed fee paid on 25-04-2024, will be in time. Back to the instant matter, counting the days from the 26^^ day of March 2024 up to the 25^^ day of April 2024, when the court fee was paid is 30 days and not 31 days as counted by the first appellate magistrate. And since the judgment day is excluded, it rernained 30 days, which obviously shows the appellant complied with section 20(3) of the Magistrates' Courts Act, Cap. 11 R.E. 2019. Therefore, the appellant it is the finding of this court that the appellant had filed his appeal properly and on time. With the above findings, I find the arguments by Mr. Sikaiumba in this appeal misconceived and were not supported by the record of appeal and cases cited are distinguishable. On the foregoing and for the circumstances given hereinabove, I hereby allow this appeal to the extent explained by the appellant. Further, I quash the ruling of the first appellate court dated 27^^ June 2024, and I order the restoration of Appeal No. 10060 of 2024 to the first appellate court which Page 18 of 19 was filed on time. I further direct that the appeal be heard with immediate effect by another magistrate with competent jurisdiction. The appeliant shall have costs of this appeal. It Is so ordered. Dated at Morogoro this day of December, 2024. O X S.M^ AGOIGA DGE 0/12/2024 ■7 COURT: Judgement delivered today in the presence of Derick Vicent, learned advocate holding brief for Mr. Erick Chale for the appellant and Mr. Derick Vicent, iearned advocate holding brief for Mr. Saul Sikalumba, for the respondent P.T Oc .M. MAGOIGA Li-' :c. JUDGE y10/12/2024 V" 3s^ COURT: Right of~sp^a\ fully explained.^ Oa cq \7 u_l S.M.' MAGOIGA ^ JUDGE 10/12/2024 Page 19 of 19