mwai oc 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB - REGISTRY AT ONE STOP JUDICIAL CENTRE CIVIL APPEAL NO 31429/2024 CHRISTINA FRANCIS MASAMAKI............................... APPELLANT SAJILE PAUL.................................................................. RESPONDENT RULING Date of last order: 14/02/2025 Date of Ruling: 18/2/2025 S.D. MWAIPOPO Jr This a ruling in respect of the preliminary objection raised by the Respondent to the effect that: That, this appeal is incurably defective in law for non-comply (sic) with a mandatory requirement of law for being directly brought and filled to this Honourable Court in contravention of Section 80 (2) of the Law of Marriage Act, CAP 29 RE 2019 as well as Rule 37 (I) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules. The Respondent employed this court to strike out this appeal with costs. The hearing of the objection proceeded by way of written submissions pursuant to the time table filed by the court. The Appellant fended for herself and the Respondent enjoyed the services of Said Malindi, Advocate. Arguing in support of the preliminary objection raised, the Respondent submitted that, the Appeal is incompetent and incurably defective for Appellant's failure to comply with a mandatory requirement of law by bringing and filing her petition of Appeal in this Honorable Court in contravention of Section 80 (2) of the Law of Marriage Act ICAP 29 R.E 2019] as well as Rule 37 (1) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules, GN. NO.246 of 1997,which requires the same to be filed in the subordinate court which made or passed the judgment and decree appealed against. He submitted that this position was emphasized in the case of JOHANSEN KAHWA VERSUS JANSINTA KATA BAZ I; in which the court cited with approval the case of Keneth K. Lukaija versus Ritha Jigulu Civil Appeal No.87 of 2019 HC-DSM and in the case of Agustina Salvatory vs Gridon Ndibalema, (H/C) Civil Appeal No.8/2005 (Unreported). In this case the court dealt with a situation where the matrimonial appeal which was not filed in the court which gave the decision was struck out for being incompetent having been filed in the High Court directly contrary to law thus both provisions of law require that an appeal to High Court be lodged in the subordinate court which issued the decision and not straight in this court. The Respondent cited the provisions of the law to 'amplify his objection as follows. For clarity Section 80(2) of the Law of Marriage Act [CAP 29 R.E 2019] cited above provides that: - S. 80(2); An Appeal to the district court or to the High Court shall be filed respectively, in the primary court or! in the district court within forty-five days of the decision or order against which the appeal is brought Rule 37(1) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules, i provides that; 37(1) An appeal to the High Court under section 80 of the Act shall be commenced by a memorandum of appeal filed in the I subordinate court which made or passed the decision, order or decree appealed against 37(3) Upon the receipt of the Memorandum of appeal, the subordinate court shall transmit to the High Court, the memorandum of appeal together with the complete record of the matrimonial proceeding to which the appeal relates. The Respondent invited the court to the case of JOHANSEN KAHWA VERSUS JANSINTA KATABAZI; Matrimonial Appeal No. 2 of 2020 between the District Registry Bukoba at Bukoba; whe e this Court held that: "Section 80 (2) of Law of Marriage Act, is plain and clear which in my view, it is not hard to interpret. The intention of the legislature was to expedite appeal cases in matrimonial proceedings by requiring all appeals from District court or Resident Magistrate Court appealable to High Court to be filled in the same magistrate court which gave a decision so that the magistrate court promptly transmit the entire record of appeal to the High Court " This was also emphasized in the Civil Appeal No.27834 of 2023 between Janeth Angetile Mwasomola vs Arestides Agathon Lyakumbele, High Court of Tanzania, Temeke Sub-registry (One stop Judicial Center) where it was held that; "Both of the above provisions are couched in mandatory terms that require a person so aggrieved by a decision of a lower court is required by law to file their appeal in the subordinate court which made or passed the decision order or decree appealed against. This means the correct registry for filling an appeal is at the court that decided the matter being appealed against...... " He contended that the proceedings which were attached to the summons served to the Respondent show that this appeal was filed directly to the High court as nothing is seen in the proceedings to show that there was any transfer from the Subordinate court. Based on the above provisions and case laws, the act of Appellant's failure to comply with the mandatory law cited above, is a misconception of law and the procedures involved. The Respondent prayed for the preliminary objection to be sustained since it has merit and the appeal is incompetent having been filed directly in the High court instead of being filed in the court in which the decision was given as per the requirement of the law. He thus prayed for the appeal to be struck out for the Appellant to follow the appropriate procedure. Submitting in rebuttal the Appellant began by imploring the court to apply the overriding objective principle as enshrined under section 3A and 3B of the Appellate Jurisdiction Act which emphasizes on the quick disposal of cases and use of technology. She argued that Court of Appeal of Tanzania has ruled that cases which are filed directly to the Court of Appeal instead of the High Court have no any defect just as the appeal cases filed in the High Court instead of the District Court first which gave the decision. She has asserted that her appeal is in order and has no any defect. She cited the case of Appeal of Tanzania namely Boniface Malyango@shetani vs Republic criminal appeal no. 358/2018 which also cited with approval the persuasive decision of the case of Salama Beach Hotel Ltd vs Kenyariri and Associates (supra) to support her position that the court will not be tied up with procedural irregularities and breathe cases into life. She contended further that vide the Judicature and Application of Laws Act (Electronic Filing Rules) 2018 the court has directed that all cases be filed electronically in accordance with the rules, therefore, no appeal can be filed in the District Court physically/manually. There was no any rejoinder filed. Having gone through the submissions of the parties the issue is whether the preliminary objection raised by the Respondent has merit. The issue raised by the learned counsel for the Respondent is that, this appeal is incurably defective in law for not complying with the mandatory requirements of law for being directly brought and filled before this court in contravention of Section 80 (2) of the Law of Marriage Act, CAP 29 RE 2019 as well as Rule 37 (1) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules. The Appellant in her Response has implored the court: to use the overriding objective principle as enshrined under section 3A and 3B in the Appellate Jurisdiction Act which emphasizes on the quick disposal of cases and use of technology. She has asserted that her appeal is in order and has no any defect. She cited the case of Appeal of Tanzania of Boniface Malyango@shetani vs Republic criminal appeal no. 358/2018 which also cited the persuasive decision in Salama beach Hotel Ltd vs kenyariri and Associates (supra) to support her position that the court will not be tied up with procedural irregularities and breathe cases into life. Further she stated that vide JALA (Electronic filing Rules) 2018 all cases are now filed online in the ecms. I have gone through the provisions of section 80 (2) of the LMA and 37 of its Rules and observed that the said provisions are so clear in the sense that they require an appeal to the District Court or the High Court to be filed respectively, in the Primary Court or in the District Court which gave the decision within 45 days of the decision or order against which the appeal is brought. Furthermore, this provision of the Act has been amplified by Rule 37(1) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules which require an appeal to the High Court under section 80 of the Act to be commenced by a Memorandum of Appeal filed in the subordinate court which made or passed the decision, order or decree appealed against. Under Rule 37 (3) of the Rules, upon the receipt of the Memorandum of Appeal, the subordinate court shall transmit to the High Court, the Memorandum of Appeal together with the complete record of the matrimonial proceedings to which the appeal relates. With regard to the issues raised by the Appellant, to begin with the application of JAL7\ (Electronic filing Rules) 2018, it is very true as contended by the Appellant that, as per the said rules, all cases are now required to be filed electrically. I agree with the Appellant that this is the correct position of the law and that all cases must be filed online or via the e-system allocated for that purpose and for the case of the High Court it is the e-cms. I also equally agree with the Respondent that section 80 of LMA and 37 of its Rules require all appeals coming to the High Court from the District Court to be first filed in District court within 45 days. This position of the law has not been changed to date despite the fact that the electronic system has been established. It is still good law since the rationale for expediting cases is still relevant. As submitted by the Respondent the provisions were enacted for purposes of ensuring that the lower court which gave the decision promptly prepares and transmits the entire record of appeal to the High Court". While it is true that lower court records are currently transmitted via the online system, (save for records which are yet to be digitalized and or are continuing to be digitalized) the Law of Marriage Act and its Rules has not been amended todate to reflect the digital change. In this regard I agree with the case of Janeth Angetile Mwasomola vs Arestides Agathon Lyakumbele, Civil Appeal No.27834 of 2023 High Court of Tanzania, Temeke Sub-registry (One stop Judicial Center) cited by the Respondent where it was held that; "Both of the above provisions are couched in mandatory terms that require a person so aggrieved by a decision of a lower court is required by law to file their appeal in the subordinate court which made or passed the decision order or decree appealed against. This means the correct registry for filling an appeal is at the court that decided the matter being appealed against...... " In recognition of the fact that this mandatory law has not been changed and considering the fact that there is an electronic system in place (online platform- the e-cms) in the High Court, the Hon CJ issued a circular letter with ref no. RA 49/118/01/5 dated 2nd October 2023 directing all registries to ensure that all appeals from the subordinate courts to the Appellate courts are endorsed or stamped in the lower court(s) which gave the said decision and then the Appellant would proceed with the appeal processes with or having endorsed documents as evidence of the process. In this regard the Registries are pivotal in educating the public on the procedures while the Law of Marriage Act and its Rules still remain to be good. The said Circular letter on the commencement of the use of the Electronic Case Management System which was circulated in all the Registries and communicated to the general public, directed as follows; Rufaa kwenda Mahakama kuu dhidi ya maamuzi ya Mahakama ya Wilaya kwenye mashauri yenye asili ya Mahakama za Mwanzo zitawasilishwa katika Mahakama ya Wilaya kwa ajili ya kugongwa muhuri wa kupokelewa pamoja na kufanya malipo. Hati za sababu za rufaa pamoja na risiti za malipo zitawasilishwa Mahakama Kuu kwa njia ya kielektroniki. I have indeed perused the records filed in court and observed that this appeal originates from the decision of the Primary Court Court at Temeke OSJC in case no 318/2023 which was also a subject of an appeal to the District Court of Temeke at OSJC. Following the decision of the District Court of Temeke, the Appellant filed her appeal directly in the High Court as nothing is seen in the proceedings to show that there was any evidence of stamp or endorsement or transfer from the subordinate court as suggested by the Respondent. Therefore, the submissions by the Appellant have no any basis since this procedure was not complied with much as the Appeal was filed online via the e-cms as the law requires. The Appellant ought to have understood this two-pronged process. That is the filing/endorsement/stamping of the documents at the lower court and filing of the endorsed Appeal at the High Court. The appellant in her submissions while emphasizing that her appeal has no fault at the same time, she implored this court to apply the overriding objective principle as applied in the case of Malyange (supra) above to find that her appeal is in order. As this is a legal requirement, the overriding objective principle cannot be used in situations where there has been non-compliance of the law or to defeat the mandatory procedural requirements. See the case of Mondorosi Village Council and others vs TBL and Others Civil Appeal no. 66 of 2017 (Tanzlii) and the case of SGS SOCIETY GENERALE DE SURVEILLANCE SA AND ANOTHER VS ENGINEERING & MARKETING LTD AND ANOTHER CIVIL APPEAL NO 124 OF 2017 (UNREPORTED). With regard to the application of the principle of overriding objective, I must also state further that, it is not an ancient Greek goddess of universal remedy called panacea such that its objective is to fix every kind of defects and omissions by the parties in court. See the case of Juma Busiya Vs Zonal Manager South Tanzania Postal Civil Appeal No. 273/2020/20221. Therefore, I cannot use it to gloss over the omission done by the Appellant in this case. Based on the above provisions this court also will not apply the overriding objective principle in the situation at hand. Therefore, the provisions cited by the Appellant and the Malyange case (supra) is distinguished in this regard. I therefore find the Appeal to be incompetent for failure of the Appellant to comply with a mandatory requirements of the law stipulated under Section 80 (2) of the Law of Marriage Act ICAP 29 R.E 2019] as well as Rule 37 (1) and (3) of the Law of Marriage (Matrimonial Proceedings) Rules, GN. NO.246 of L997, for failure to file the Appeal first in the District Court which gave the decision (for endorsement) before filing it directly to the High Court. I refer to the case of JOHANSEN KAHWA VERSUS JANSINTA KATABAZI; cited by the Respondent which also cited with approval the scenarios in the case of Keneth K. Lukaija versus Ritha Jigulu CivilAppeal No.87 of 2019 HC-DSM and Agustina Salvatory vs Gridon Ndibalema, (H/C) Civil Appeal No.8/2005 (Unreported). In these two cases, the matrimonial appeal which was not filed in the court which gave the decision was struck out for being incompetent having been filed in the High Court contrary to the law. Based on the submissions above I sustain the preliminary objection and I proceed to strike out the appeal for being incompetent having been filed directly in the High court directly instead of being filed and endorsed in the District court which made the decision per the mandatory requirements of the law. Thus, the Appellant is ordered to follow the laid down procedure subject to the law of limitation. No order as to costs. It is so ordered Dated at Temeke this 18th Day of February 2025 S.D. MWAIPOPO JUDGE 18/ 02/ 2025