Gervas Ntamana Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA

AT MWANZA PC MATRIMONIAL APPEAL NO.17400 OF 2024 (Arising from Matrimonial Appeal No.55/2024 Ilemela District Court at Ilemela and original Matrimonial Cause No. 56/2023 Ilemela Primary Court at Buswelu) GERVAS NTAMANA……………………………..........................APPELLANT

VERSUS ROSE JOSEPH KIMARO………………… .......................... RESPONDENT

JUDGMENT 11th February & 28th March, 2025 CHUMA, J.: Troubled by the decision of the District Court of Ilemela in Matrimonial Appeal No. 55/2023 dated 19th day of June 2024 before Hon. Kiama - SRM, the appellant lodged this appeal fronting six grounds which I don’t see any need to reproduce as they will appear in due cause of my deliberation if needs be. In this appeal, the appellant sought the following reliefs; i) Appeal be allowed ii) The decision of Ilemela District Court dated 19/6/2024 be dismissed, iii) Cost and, iv) Any other relief this court deems fit and just to grant. This appeal was argued through a written submission. 1 Before embarking my deliberation on this appeal on merit I feel compelled to discuss the raised concern by the respondent on late filling the appellant’s submission inchief. According to the scheduling order, the applicant ought to file his submission on 24th February 2024, reply on 10th March 2024, rejoinder if any by 17th March 2024, and ruling on 28th March 2024. However, the available submission in chief by Mr. Baraka Dishon advocates for the appellant as rightly pointed out by Constantine Ramadhan advocate for the respondent was lodged and made the payment on 25th February, 2025. Mr. Ramadhan's advocate then prayed this court to dismiss the appeal for want of prosecution with cost. He supported his stance by citing the case of Yusufu Ndekeja V

Kisandu Bulengeti and Two others Civil Appeal No. 70/2023 where the case of P3525 LT Idaya Maganga Gregory V The Judge Advocate General, Court Martial Criminal Appeal No. 2/2022 was cited with approval where it was held inter-alia that; “It is now settled in our jurisprudence that the practice of filling written submission is tantamount to hearing and therefore failure to file submission as ordered is equivalent to non-appearance at the hearing...” 2 The record further reveals that the appellant filed no rejoinder submission before this court. From the parties' submission, I encountered something strange, the appellant via Mr.Baraka alleged to have served the respondent with the written submission on 23rd February, 2025 a fact which was denied by the respondent’s advocate in his submission. According to the respondent the submission was served on 3rd March, 2025 via Whatsapp No. 0711856040 and not 23rd February, 2025. However having gone through the electronic Case Management System, it is beyond doubt as earlier said that the appellant’s submission was filed or uploaded electronically on the 24th day of February 2025 but payment effected on the 25th day of February 2025. Therefore if we are to take the position of the appellant the respondent was served with pleadings before being dully lodged or filed in a registry. Such a document is unacceptable in law. More so though the

submission reads the appellant's written submission inchief the document from the second line after 23th February, 2024 which again I think he was referring to 2025, the document refers to the respondent replying to the grounds advanced by the appellant in support 3 of the application which is not the case here. For ease of reference the document reads; “The respondent herein reply submission to the grounds adduced by the appellants in support of this application for the certification of point of laws as follows:” Be that as it may, as stated earlier the appellant’s written submission was duly filed on 25/2/2025 beyond the court-ordered schedule without assigning reasons. It is now a settled position of law as it was held in the case of John Chuwa v Anthony Ciza, [1992] T.L.R. that the date of filing the application is the date of payment of fees and not that of receipt of the relevant documents in the registry. Also, in National Bank of Commerce vs Ballast Construction Company Limited (Civil Application No. 445/01 of 2022) [2023] TZCA 17798 (8 November 2023), the Court restated the same principle that: “I think this ground cannot tie me up for good reason that the question of when the Court document is deemed filed, is well settled. Rule 119 (1) of the Rules provides that a document is taken to have been lodged in Court upon payment of requisite fees”. Guided by the above

position, which I dully subscribe and follow, the 4 date of filing a document in court is the date when the prerequisite fee is paid and not when the document is electronically submitted. Therefore, when a party files a case electronically on any date before the last date of the limitation period, he is also required to pay court fees. Failure to do so not only invalidates the document but also makes the entire act unacceptable under the law. It has been held countless times that court orders must be respected. See the cases of Laemthong Rice Co. Ltd V Principal Secretary Ministry of Finance Zanzibar, Civil Appeal No. 259 of 2019; and Mary Joseph V Rachel Zephania, Misc. Land Application No. 37 of 2020. Thus, the appellant’s written submissions filed on and made the payment on 25/2/2025 were indeed time-barred. It is a trite law that anything filed out of time without leave of the court must be disregarded. See the case of Elizabeth Salehe Saidi V Entrepreneurs Financial Centre and 4 Others (Misc. Land Application 688 of 2020) [2021] TZHC Land Division 433 (5 August 2021). Furthermore, failure to file written submissions as ordered by the court is tantamount to non-appearance in court on the date fixed for the hearing. See the case of Kiputo S/o Ahmad V Mariki S/o Mpenda & 3 Others 5 Criminal Appeal No. 5 of 2021 (unreported) on page 5, last paragraph, and page 6 last

paragraph, Winfrida Lazaro Zabron V Ryaga Yuda Ryaga & 6 Others, Civil Case No. 30 of 2022 (unreported), on pages 4 and 5 and Godfrey Kimbe V Peter Ngonyani, Civil Appeal No. 41 of 2014 (unreported). Therefore, because the applicant failed to file his submission in chief in total disregard of the court order he has failed to prosecute his appeal. For the reasons considered and stated herein above, I dismiss this appeal for want of prosecution without cost. DATED at MWANZA this 28th day of March 2025. W.M. CHUMA

JUDGE 6 Judgment delivered in court in attendance of the parties in persons this 28th day of March 2025. C. MWALIMU AG. DEPUTY REGISTRAR 7