ocr tanzlii thrsdy CATHERINE MBELE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO 28242/2024 (Originating from the District Court of Temeke (One Stop Judicial Centre) At Temeke, Pc. Matrimonial Appeal No. 10532 of2024) CATHERINE EDWIN MBELE..................................APPELLANT VERSUS GODFREY ABEDNEGO MUSHI............................... RESPONDENT RULING Date of last order: 27/12/2024 Date of Ruling: 31/12/2024 S.D. MWAIPOPO, This is a ruling in respect of the preliminary objections raised by the Respondent and the court suo motu. The Respondent raised a preliminary objection on point of law to the effect that:- o ' H1- 1. This Application is bad in law for contravening rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules GN No. 246 (199). Similarly, on 03/12/2024 the court ordered the parties to address it on the competency of the filing and registration of the Appeal as Civil Apjeal considering that the appeal originates from the primary court and ought to have been filed as PC. Civil Appeal. The hearing of the two issues proceeded by way of written submiss ons pursuant to the timetable drawn by the court. At the commencement of hearing the Appellant enlisted the service; of learned Advocate John Msifuni Msuya and the Respondent enjoyed legal services from learned Advocate Nehemia Gabo. Arguing in support the preliminary objection raised by the Respondent, the learned counsel for the Respondent contended that the Appellant locged the Petition of appeal in lieu of Memorandum of Appeal contrary to the rules cited herein above a state which renders the appeal to be defective contrary Rule 37 (1) of the Law of Marriage (Matrimonial Proceedings) II' fVV Rules GN No. 246/1997 provides that: An Appeal to the High Court under section 80 of the Act shall be commenced by a Memorandum of Appeal filed in the subordinate court which made or passed the decision, order or decree appealed against. Regarding the competency of the Appeal being filed as a Civil Appeal the Respondent argued that the matter was improperly filed as a Civil Appeal instead of the PC. Matrimonial Appeal. Hence registered improperly and ought to be struck out. Submitting in rebuttal the Appellant began by stating that the preliminary objection was wrongly couched by referring to the Appeal as an Application hence termed the preliminary objection as unreasonable and a waste of time of the court. With regard to the issue that the Appeal ought to have been commerced by way of a Memorandum as per section 80 of the LMA and Rule 37(1) Law of Marriage (Matrimonial Proceedings) Rules GN No. 246/1997, the learned counsel conceded that the law requires the Appeal to be filed under S. 80 of the LMA to be commenced by way of a Memorandum of Appeal and not by way of a Petition, however the error does not go to the root of the case and does no affect the Respondents substantive justice. The learned counsel contended that both the Memorandum and the Petition still serve the same purpose, of challenging the court decision. The typing error some can be cured by an overriding principle and Article 107 A (2) (e) of the Constitution of the URT 1977. He also referred the court to the case of Yakolo Magoiga Gichere v. Peninah Yusuph Civil Appeal No. 55 of 2017 unreported to support his position. The Appellant further cited various cases in which the High Court and the Court of Appeal of Tanzania have held that the use of the Petition of Appeal instead of a Memorandum of Appeal is not fatal and cannot render the Appeal incompetent. See the following cases: Yakobo Magoiga Gichere v. Peninnah Yusuph, Civil Appeal No. 55 of 2017, Hassan Muhamedi Kondo v. Aisha Patrick Mbwana, Misc. Land Appeal No. 3 of 2022, Basil Basare v. Petro Michael (1996) TLR 226, (HC), Mary Mwambene v. Benson Mwashambwa, Land Appeal No. 42 of 2016 at page 3-4, and Felician Mchuruza v. Zindunza Mnaku (2013)TLR210. Furthermore, the Appellant contended that the Respondent has not been prejudiced by the error and that rule 37(4) of the Law of Marr age (Matrimonial Proceedings) Rules state prohibits any rejection of the Memorandum of Appeal based on any defect. Regarding the issue raised by the court as to why the Appeal has teen filed as Civil Appeal instead of a PC. Civil Appeal, the Appellant conferded that indeed the matter was to be registered as a PC. Matrimonial Appeal however the current e - filing system does not allow for it to be registered as a PC. Matrimonial Appeal since only two groups are recognized only i.e. criminal and civil appeals. He contended that he tried to file the appeal as PC. Matrimonial Appeal but the same was rejected since it was not recognized by the system and had to amend the document to read civil appeal. He argued that the filing of the case as a civil appeal does not prejudice the parties rights as it is the matter of the e-filing system. He finally prayed for the court to proceed with the hearing of the Appeal and the preliminary objection to be dismissed for lack of merit. In rejoinder, the Respondent submitted that the Appellant has admitted both anomalies but implored the court to use the overriding objective. He contended that the overriding objective principle can not be applied in situations where there is non-compliance of the law, he referred the court to the case of ASG Societe Generale de Surveillance AS and Another v. VIP Engineering & Marketing Limited and Another, Civil Appeal No. 124 of 2017 (Unreported) at P. 23. He thus prayed for the Apoeal to be struck out. Having heard the submissions of the parties, the central issue tc be resolved is whether this appeal is competent before the court in terms of the manner in which it has been filed and registered. Before I proceed with my determination, I would like to first state that the argument by the Appellant that the preliminary objection raised by the Respondent is a waste of time, since it has referred to the appeal as an Application has no merit. Since all parties are aware that what is before this court is an appeal and Rule 37(1) of the Law of Marriage (Matrimor ial Proceeding) Rules relates to appeals. Therefore, the mere reference to an application is a slip of the pen that is not going to detain me for a long time. Secondly, there have been references to the matter being filed as PC Matrimonial appeal in this court. That is not correct since the gist of the issue raised by the court on the 3rd of December 2024 was on the competence of the appeal being filed a civil appeal since it originates f'om the primary court and not that it ought to have been filed as a PC Matrimonial appeal. Reference is made to the e-case file proceedings for that date. Now I shall proceed with the determination of the issues raised as follows; With regard to the issue raised by the Respondent on the contravention of Rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules, this court has noted that, the said rule requires appeals from the subordinate courts to be initiated by way of a memorandum. However, the Appellant has brought her appeal by way of a petition of appeal. This fact has also been conceded by the learned counsel for the Appellant. The learned counsel for the Respondent has implored this court to struck out this appeal for being incompetent. Now what is the effect of filing an appeal as a Petition instead of a Memorandum as required by the law. The provisions of Rule 37(1) of the Law of Marriage Act (Matrimonial Proceedings) Rules have used the word ''shall" which is mandatory in nature indicating that the Appeal should be initiated by way of filing a Memorandum. This is the position of the law as far as the Law of Marriage (Matrimonial Proceedings) Rules are concerned. Further, in the case of Basic Masare vs Petro Michael (supra) cited by the learned counse for the Appellant, Mrosso J stated that: it would be preferable if an intending appellant uses the word adopted by the legislature for the relevant type of appeal. Coming back to the submissions of the parties, the learned counsel for the Appellant has cited a plethora of authorities indicating that the filing of the appeal by way of a Petition instead of a Memorandum is not fatal. I am aware of such cases, and would also agree that case law has interpreted further this position as articulated in various civil and criminal laws as stated by the Appellant. While I agree that the interchange of the two documents (Petition/Memorandum) would not be fatal based on the case laws cited by the Appellant or cannot not render the appeal incompetent assuming that all things related to the appeal are correct or equal and that the court in such a situation could order amendment based on the oxygen principle and Article 107A of the Constitution, I am also alive to the position that the Oxygen principle cannot be applied in situat ons where there is non-compliance of the law. See the case of ASG Soc ete Generale de Surveillance AS and Another v. VIP Engineering & Marketing Limited and Another. However, I would add that the court in this kind of a situation has also to consider judiciously whether the anomaly cited is fatal or curable in each and particular case before applying the oxygen principle. That said, I am mindful of the fact that in the instant matter this court n' ft1 raised also an issue suo motu on the appropriateness of the registration of this appeal. Therefore, before I conclude on the fate of the preliminary objection raised by the Respondent I must also address the issue raised by the court on the appropriateness of the registration of the appeal being filed as a civil appeal instead of a PC Civil Appeal. Regarding this issue, I have observed that this case originates from the decision of Temeke Primary Court Matrimonial Cause no 1855/2023 and was also filed in the District Court as an PC Matrimonial Appeal No. 10532/2024 which was decided by Hon Jacob SRM. Therefore, the District Court dealt with the case in its appellate jurisdiction as opposed to its original jurisdiction, whereby it could have been filed in the High Court as a Civil Appeal. Therefore, the matter originated from the Primary court and its registration in the High Court ought to have reflected its primary court original nature. However, in the High Court it has been filed as a Civil Appeal as if it originates from the District Court in its original jurisdiction. The Appellant in his submissions has contended that he attempted to file the matter as a PC Matrimonial Appeal but the e-case management system was rejecting it. However, I must also state that the Appellant did not file any evidence to indicate any failed attempts hence his submissions fell short of provisions of section 110 of the Evidence Act cap 6 RE 2019. Secondly, the route of filing it a s PC matrimonial appeal was a wrong one. The submissions by the Appellant that it was amended and filed as a PC Civil appeal do not hold water since that is not true. The matter has teen filed a Civil Appeal and drafted as such. It does not need rocket science to prove that the appeal has been drafted as a Civil Appeal and filed and registered as such instead of a PC. Civil Appeal since it originates from the Primary Court. This is kind of filing is contrary to the Hon. Chief Justice Circular no.2/2021 which came into effect on 1/1/2022 which establishes court registers for each level of the court and requires appeals originating from the Primary Court to be filed and registered in the High Court Register as PC Civil Appeals. Much as this case was immediately decided by the District Court, it originates from the primary court and in order to keep it in line with the High Court Register requirements established by the Hon. Chief Justice, then it ought to have been filed as a PC. Civil Appeal and short of that it was supposed to be rejected at the time of admission. In establishing the appropriate case registers for each court level, the CJ Circular pointed on the challenges related to collection of case statistics resulting from inappropriate registration of cases as follows: Jambo hili pia linaathiri ukusanyaji wa takwimu za mashauri kwa aina tofauti za mashauri......... Kila ngazi ya Mahakama itakuwa na rejesta ya mashauri kama inavyoonekana kwenye kiambatisho A The said annex A establishes the PC Civil Register under item 11 for e /ery appeal to the High Court in matters of civil nature including an appeal in matrimonial and probate matters originating in primary courts. Therefore, all cases originating from the primary court and filed in the High Court as appeals they must be filed as PC Civil Appeal and this should also be reflected on the face of the appeal document itself. It should be addressed at the time of drafting the document. Then the Parties will be able to comply with the CJ Circular and also ensure the integrity, efficiency and accuracy of case statistical data generated form the e-cms. After all has been done and said, what now is the fate of this appeal. The Respondent has implored this court to strike out the appeal. The Appellant has prayed for the court not to reject the appeal and proceed to hear it based on the overriding objective principle and Article 107A of the Constitution of the United Republic of Tanzania as amended. As adumbrated herein above, the error goes to the root of the existence of the case in the High Court since it relates to its registration in e-cms. The error must be addressed in the system. The Appellant if she still so wis.hes to pursue this appeal then she can refile the same afresh and appropriately. In the upshot and having analyzed the submissions of the parties I proceed to order as follows: 1. The appeal has been wrongly registered as a civil appeal in the High Court Register instead of a PC. Civil Appeal, since it originates f'om the decision of Temeke Primary Court Matrimonial cause no 1855/2023 and PC. Matrimonial Appeal No. 10532/ of 2024 decided by the District Court (Temeke). I thus proceed to reject and struck it out. Ju,l' 2. Since the error pertains to registration, the Appellant is hereby giyen a period of 21 days to refile the appeal appropriately in the right high Court Register and under the correct case category/subcategory as stated in the CJ Circular no. 2/2021 3. The Appellant should ensure compliance with Section 80 of the LMA and Rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules when refiling the matter. 4. No order for costs. DATED at TEMEKE this 31st day of DECEMBER 2024 '' 14 *" S.D. MWAIPOPO JUDGE 31/12/2024