fatuma pantaleo vs salehe kazimbaya 2023 tzhc 22053 18 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO PC. MATRIMONIAL APPEAL NO.4 OF 2023 (From Matrimonial Appeal No. 1 of2022 of Uianga District Court at Mahenge & Originating from Matrimonial Cause No. 23 of2021 ofLupiro Primary Court.) FATUMA PANTALEO APPELLANT VERSUS SALEHE KAZIMBAYA RESPONDENT RULING 18^^^ October, 2023 CHABA, J. This second appeal arises from the decision of Lupiro Primary Court(the trial Court) within Uianga District Court, at Mahenge in Matrimonial Appeal Case No. ,23 of 2021 delivered on 21^*^ day of December, 2021. Before the trial Court, the appellant, Fatuma Pantaleo petitioned for a divorce and division of matrimonial properties. At the height of trial, the Court granted the decree of divorce and ordered for division of the matrimonial properties to the parties. Discontented with the trial Court's decision, the appellant appealed to the District Court of Uianga, at Mahenge via Matrimonial Appeal No. 1 of 2022. Upon hearing both parties, the first Appellate Court on 12'^'^ day of May, 2022 upheld the trial Court decision and dismissed the appeal for lack of merit. Still dissatisfied, the appellant preferred the instant appeal to this Court armed with two grounds of appeal. However, the Court records reveals that, the appellant on 13^^ day of June, 2022 lodged her petition of appeal directly to this Court. As hinted above, the appellant fronted two grounds of appeal. For reasons to be apparent shortly, I will neither reproduce these two grounds of appeal nor dwell on it. Further, I shall not deal with the parties' written submissions for and against the instant petition of appeal. At the hearing of the appeal, parties were represented by learned trained minds persons, commonly known as learned advocates. Whereas Ms. Kabula Barnabas, learned advocate represented the appellant, the respondent enjoyed the legal services of Mr. Michael Chami, also learned advocate. It is settled law that, whenever the Appellate Court, be it the first or second discovers a legal issue, it must be, first addressed by the Court. I have dispassionately gone through the entire Court records and carefully examined it together with the parties' rival submissions. While composing my Judgment, I noticed a legal issue that touches the jurisdiction of this Court. In the course, I discovered that the appellant, Fatuma Pantaleo filed the present appeal directly to the registry of this Court on the 13'^'^ day of June, 2022 via Payment Receipt Nos. 22061311375560. However, this anomaly was neither noticed by Ms. Kabula Barnabas, learned advocate for the appellant, nor Mr. Michael Chami, the learned advocate for the respondent! This appeal being a Matrimonial Cause originating from the Primary Court was supposed to be filed in the District Court of Ulanga, at Mahenge. Had it been noted earlier by the Counsel for the respondent or the Court, this appeal would have not been proceeded on merits. As a matter of practice, I would have invited .the parties to address the Court as to whether or not the present appeal was properly filed in this Court. As it is known that, the doors of this Court are always open to any person to inquire into any question of law or facts. However, the law strictly provides that, coming in this Court by way of appeal, for a matter relating to matrimonial dispute that stemmed from the Primary Court, must be governed by the relevant laws and legal procedure. It appears that, the appellant silently escaped to filed her appeal in the respective registry and preferred to lodge it in the registry of this Court. As a matter of procedure, the Appellant's Petition of Appeal was supposed reach the jurisdiction'of this Court upon complied with the mandatory provision of section 80 (2) of The Law of Marriage Act [CAP. 29 R. E, 2019], as rectified by THE LAWS REVISION (THE RECTIFICATION OF PRINTING ERRORS)(THE LAW OF MARRIAGE ACT [CAP. 29 R. E, 2019]). NOTICE, 2022, GN No. 487 dated 15'^ July, 2022 and 3 section 25 (3) of The Magistrate's Courts' Act [CAP. 11 R. E, 2019] and Rule 5 (3) of The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules; GN. No. 312 of 1964. For ease of reference, I find it pertinent to quote the above provisions of the law. Starting with section 80 (2) of The Law of Marriage Act (supra)/ the provide that: - "An appeal to the district court or to the High Court shaii be fiied, 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 5 (3) of The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) GN. No. 312 of 1964, read: "When a petition of appeal to the High Court is fiied in the District Court, the District Court shaii be caused the date of filing to be endorsed on the petition before dispatching it to the High Court". Similarly, under section 25 (3) of the Magistrate's Courts Act [CAP. 11 R. E, 2019], provides that: - "PJ Every appeal to the High Courtshall be by way ofpetition andshallbe filed in the districtcourtfrom the decision or order ; In respect of which the appeal Is brought". Guided by the above provisions of the law, it is apparent that the instant appeal was: supposed to be filed in the District Court of Ulanga at Mahenge and not in this Court. This Court in a number of cases have resisted appeals and applications filed in violation of mandatory legal procedures. As procedural rules i are part and parcel of the substantive laws which must be adhered to and respected, the same must applied accordingly. In the case of Muganda Michael Vs. Elizabeth Kazimoto (PC Matrimonial Appeal l^Jo. 13 of 2023)[2023] TZHC 18626(30 June 2023), I was faced with a similar situation and decided that, the appeal before me was incompetent for being filed in a wrong registry and contrary to the governing law. , Again, akin situation was observed by this Court(Hon. Opiyo, J.) in the case of Edwin.Shaidi, Vs. Doroth.Shaidi, Misc. Civil Appeal.Np. 8 of 2004, HCT - DSN (unreported.),. where Court ;held that: - "The law makes It mandatory that appeals have to be filed In a trial court which is obliged to transmit the Memorandum of Appeal and the complete trial record to this court". As the Court records is clear that, this appeal was filed in a wrong registry, and that the governing provisions of the law was violated as discussed herein above, it follows therefore that, the present appeal was improperly filed in this Court, hence incompetent before me and before this Court. Accordingly, I proceed to dismiss the appellant's appeal for being incompetent. Since the legal issue was suo /77cft/raised by the Court, I order that, the costs shall be borne by the parties themselves. Order accordingly. DATED at MOROGORO this 18^'^ day of October, 2023. COUfiy M. J. C aba 'vv# JUDGE 18/10/2023 Court: Ruling delivered under my Hand and Seal of this Court in Chamber's this 18*^^ Day of October, 2023 in the absence of both sides. A. W-H^mbahdo EPUTY REGISTRAR 18/10/2023 ^ORoGO^° Court: Right of the parties to Appeal to the CAT fully explained. lu^ A. W. Mrnbando DJ^PUTY REGISTRAR 5?0R060^ 18/10/2023