RULING FARAJA ALENKO MKWAMA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 18308 OF 2024 CASE REFERENCE NO. 202407291000018308 (Originating from Application No. 14 of 2024 of the District Land and Housing Tribunal for Mbarali at Rujewa) FARAJA ALENKO MKWAMA ....................................................... APPELLANT VERSUS ZAWADI ARON MAKOGA ........................................................ RESPONDENT RULING 13th February & 2nd April 2025 NONGWA, J. This appeal originates in Application No. 14 of 2024 of the District Land and Housing Tribunal for Mbarali at Rujewa (the DLHT) which was dismissed following the preliminary objection by the respondent. The appellant and respondent were wife and husband respectively; their marriage was dissolved by the primary court of Mbarali district at Chimala on 15/1/2024. The appellant sued the respondent for a total of eight (8) acres of land situated at Manyoro (A”) Hamlet Mabadaga village within Mbarali district and other domestic appliances alleging that the respondent had refused to distribute on ground that was not matrimonial properties. On 27/3/2024, the chairman ordered the 1 application to be amended by removing properties which did touch the land, however after amendment those properties features in the amended application. This necessitated the respondent to file two points of preliminary objection one that baraza hili halina mamlaka ya kusikiliza na kuamua mgogoro huu baina ya wadaawa katika maombi haya and two, maombi haya ya muombaji ni matumizi mabaya ya baraza lako tukufu (abuse of court process). Parties filed submission on both points of objection, however, the chairman choose to dispose based on the second objection which he sustained and the application was dismissed. The appellant is aggrieved, has filed memorandum of appeal on two grounds. The respondent has raised preliminary objection on ground that appeal is hopelessly time bared as it was lodged after expiry of 120 days contrary to section 41(2) of the Land Dispute Courts Act [Cap 216 R: E 2019] (the LDCA). As it is ordinarily the practice of this court that, once a preliminary objection is raised, the court would shelve the hearing of the substantive matter to allow the disposal of the preliminary objection first. I allowed the preliminary objection to be argued, before the hearing of the appeal. On the hearing date, the applicant appeared in person without legal representation whereas the respondent had service of Mr. Batista 2 John Mhelela, learned advocate. By consensus of parties indorsed by the court, hearing of preliminary objection was by filing written submissions. Mr. Batista has submitted that the ruling subject of appeal was delivered on 19/6/2024 and certified copy of ruling was ready for collection on 26/6/2024 but the appeal filed on 17/10/2024. That forty- five days expired on 9/8/2024. It was submitted that the appellant would have benefited under section 19(2) of the Law of Limitation Act, Cap 89 if had expressly requested to be supplied with same. In support cited the case of Methusela Enoka vs National Microfinace Bank Ltd, Civil Appeal No. 266 of 2019 [2022] TZCA 447 (19 July 2022; TanzLII) and Bukoba Municipal Council vs New Metro Merchandise, Civil Appeal No. 374 of 2021 [2022] TZCA 413 (11 July 2022; TanzLII). Counsel has submitted that the appeal is time barred as it was filed after expiry of 69 days contrary to section 41(1) of the LDCA which requires appeal to be filed with forty-five days of the date of decision. He thus prays the appeal be allowed with costs. In reply it has been submitted by the appellant that the objection is misconceived because the appeal was filed within time. That it was filed electronically on 25/7/2024 as required by the law and the fee was 3 paid on 29/7/2024. Further that only hardcopy was sent for indorsement on 17/10/2024. The appellant went on to state that now days documents are filed electronically through judicial system only that the hardcopy may be sent for indorsement and stamping. She prays the objection be dismissed with costs. I have considered rival submissions and perused record of appeal. The ruling subject of appeal was delivered on 19/6/2024. In terms of section 41(2) of the DLCA the aggrieved party has to file the appeal to the high court within forty-five days, it provides; ‘An appeal under subsection (1) may be lodged within forty-five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty-five days.’ The argument by Mr. Batista is that the appeal was filed on 17/10/2024, which is strongly disputed by the appellant. She has argued that she filed the appeal electronically on 25/7/2024 only that the hardcopy was sent for indorsement and stamping on 17/10/2024. As rightly submitted by the appellant the Judiciary Of Tanzania has transformed from the conventional way of filing documents in court that 4 is by presenting papers constituting pleading physically in court with the view of filing which was proved by signing the document by court officers and putting a court stamp. The conventional mean is now outlived, as filing of cases is now electronically through the system developed by the judiciary, electronic Case Management System (e- CMS). The requirement is embodied under the Judicature and Application of Laws (Electronic filing) Rules, 2018 which came into force on 13/04/2018 through Government Notice No. 148 of 2018 (the Electronic Filing Rules). Rule 8 provides; ‘All pleadings, petitions, applications, appeals and such other documents are mandatorily required to be filed electronically and in accordance with the requirements of those rules.’ Under rule 21 of the Electronic Filing Rules, a document is deemed filed when submitted through the electronic filing system. It provides; ‘(1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. (2) A document submitted at or after midnight or on a Saturday, Sunday, or public holiday shall, unless it is rejected by the court, be considered filed the next working day.’ 5 The hardcopy which is in court record shows it was received by court officer on 17/10/2024 and that is where the objection by Mr. Batista relies. Reading the Electronic Filing Rules, it recognizes documents filed electronically and conventionally but those filed electronically maintain primacy under rule 9 of the Electronic Filing Rules which provides; ‘The official record of the court shall be the electronic case file (ECF), proceedings pertaining to that case, together with any documents and exhibits filed under the conventional method.’ Documents filed conventionally saves only as exception to the requirement to file documents electronically. Faced with akin situation in Airtel Tanzania Plc vs Teddy Chamshama, Civil Application No. 191 of 2025 [2025] TZCA 157 (27 February 2025; TanzLII) Hon. Nangela, J.A. stated; ‘... the use of the conventional mode of filing is no longer a norm but an exception, meaning that, where possible, all documents should be filed electronically.’ After going through the digital case file, the record is evident that the appeal was submitted for filing electronically on 25/7/2024, which under rule 21(1) of Electronic Filing Rules is the date of filing. Counting from 19/6/2024 when the ruling was delivered to 25/7/2024 when the 6 appeal was filed electronically, it was the thirty-six days well within forty- five days required to appeal under section 41(2) of the LDCA. Building the objection on documents filed conventionally is therefore misplaced and is against what is provided under rule 8 of the Electronic Filing Rules, the conventional indorsement of the document cannot take supremacy over the electronically filed document. In Airtel Tanzania Plc (supra) the court stated; ‘... without much ado, to invoke that doctrine based on what rule 8 of the Judicature and Application of Laws (Electronic Filing) Rules provides. Based on that doctrine, therefore, this Court holds that the documents were initially filed in compliance with that rule and, hence, the endorsement on the conventionally filed record came afterwards; otherwise, this application would not have been admitted in the first place.’ [Emphasize added.] From the above discussion, the objection stands dismissed. Parties being previous couples, I make no order to costs. V.M NONGWA JUDGE 2/4/2025 7 Dated and Delivered at Mbeya this 2nd April 2025 in presence of the Respondent in person. V.M NONGWA JUDGE 8