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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CIVIL APPEAL NO. 23603 OF 2024 (Originating from the District Court of Mbeya at Mbeya in Civil Appeal No. 000006507/2024) HAJI BAKARI DINNES………………….…………………APPELLANT

VERSUS BRAC T. LTD…………………………………….………...RESPONDENT

RULING Date: 20 January 2025 & 4 March 2025 SINDA, J. The appellant filed Civil Case No. 122 of 2023 against the respondent at the Urban Primary Court (the Trial Court) for breach of contract and causing loss. The case was decided in favour of the appellant. Aggrieved with the decision, the respondent instituted an appeal at the District Court of Mbeya at Mbeya (the District Court), which was decided in his favour. The appellant was also aggrieved with the District Court's decision and appealed before this Court with five grounds of appeal. 1 In reply to the petition of appeal, the counsel for the respondent raised a preliminary objection (P.O) that this suit is hopelessly time-barred because it has been filed out of time contrary to section 25(1)(b) of the Magistrates’ Courts Act, CAP 11 R.E 2019 (the MCA) read together with Rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 (the Rules). During the hearing of the P.O., the appellant was represented by advocate Caroline Joseph Mseja, while the respondent was represented by advocate Essau Abraham Sengo. The P.O. was argued by written submission. Arguing the P.O., the respondent submitted that the first appellate court delivered the decision sought to be challenged by the appellant on 30 July 2024 and as provided under section 25(1)(b) of the MCA, the appellant had only 30 days to file his appeal to

this Court. That being the case, the appellant was to file his appeal on or before 30 August 2024, after the farmer’s day (Nanenane), which is excluded. The appellant submitted the petition of appeal on 30 August 2024. He added that the current position of the law is very clear that online filing of documents is counted from when the control number is generated and paid for. He added further that the same should be reflected in the system and not just throwing the document online unpaid at the wish of the filing party. The counsel for 2 the respondent argued that is the precise meaning of Rule 21 of the Rules. He referred to the case of NMB Bank PLC versus Fabiola Deogratius Maani t/a Fabiola Curio Shop, Civil Application No. 152/02 of 2024, Court of Appeal of Tanzania (CAT) at Arusha, the CAT on page 5, interpreted Rule 21 of the Rules. Mr. Sengo submitted that it is very clear that this appeal is time-barred. He contended that the appellant submitted his memorandum of appeal on 30 August 2024. He added that the appellant did not take any further steps until 23 September 2024, when the control number was generated and the case number assigned. Mr. Sengo stated that legally, this appeal was filed on 23 September 2024, hence, it was filed out of time. He submitted further that payment of court fees is a mandatory requirement for a document to be deemed as filed with the Court.

He referred to the case of Maliselino B. Mbipi versus Ostina Martine Hyera, Misc. Civil Application No. 08 of 2022, High Court of Tanzania at Songea, Mlyambina, J. and Rule 3 and 5 (1) of the Court Fees Rules, 2018 G.N 247 of 2018. He prayed the matter be dismissed with costs. In reply, the appellant counsel submitted that the preliminary objection is meritless and should, therefore, be dismissed with costs. 3 She submitted that the appeal was filed on time on 30 August 2024, and complied with the provision of 25 (1) (d) of the MCA. She contended that the advocate for the respondent did not consider the provisions of Rule 21 (1) and (2) of the Rules which provides that: “Rule 21 (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". She added that the CAT has not yet given a proper direction on a point of law as to when a court document is said to have been filed in court, whether on the date of filing electronically or upon payment of the filing fees which has brought about two schools of thought related to

proper interpretation of Rule 21 of the Rules. She referred to the case of Chris George Kasalile vs. Tanzania Institute of Education and Another, Civil Application no. 775/01 of 2022, CAT at Dar es Salaam (Unreported) where Ngwembe, JA at page 6 and 9 noted the existing lacuna in law which has been brought with distinct interpretations brought by different school of thoughts and different interpretation. 4 The counsel for the appellant further stated that she is aware of the recent decision of the CAT that is NMB Bank PLC (supra) cited by counsel for the respondent which have a new point of view that a document is considered to be filed online upon payment of fees which is in controversy with Rule 21 of the Rules which has nothing to do with payment but filing of documents online. She argued that the said provision should remain and interpreted in its plain meaning. She also referred to the case of Arcopar (O.M) S.A v. Harbert Marwa and Family & 3 Others, Civil Application No. 94 of 2013 (unreported) where the CAT held that, where the Court is faced with conflicting decisions of its own, the better practice is to follow the more recent of its conflicting decisions unless it can be shown that it should not be followed for any of the reasons discussed above. She further contended that the position of the law remains to be that where the wording of the statute is clear and

unambiguous, it should be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. She referred to the case of BP Tanzania vs. the Commissioner General of the Tanzania Revenue Authority, Civil Appeal No. 125 of 2015, CAT at Dodoma (Unreported) to support her argument. 5 She further submitted that the issue of delay in control number is a matter of court which is above the control of the parties and the appellant cannot be blamed taking into consideration of the well-established principle that parties should not be punished for errors committed by the court. She referred to the case of the Mount Meru Flowers Tanzania Limited vs. Box Board Tanzania Limited, Civil Application No. 260 of 2018 (unreported). She prayed this preliminary objection be dismissed with cost. In rejoinder the respondent reiterated his submission in chief. I have gone through the court records, preliminary objection and submission filed by parties. The issue is whether this appeal is time barred. In this case the respondent complained that this appeal was filled out of prescribed time as provided under section 25 (1) b of the MCA read together with Rule 21 of the Rules. Section 25 (1) b of the MCA provides for time limitation to file an appeal from district court to high court in exercising its appellate jurisdiction from primary

court that is 30 days from the date of delivering judgment. 6 Also, I find that there are two conflicting decisions regarding as to when a document considered to have been filed electronically. In some cases it was decided that there was no relationship between filing the document and payment of fees. This means that a document can be considered to have been filed electronically when it is submitted in system as stated in the case of Chris George Kasalile (supra) the Court Stated that: “As a matter of literal interpretation of laws, the rule is clear that, the issue of filing documents electronically for court use, has no relationship with payment of filing fees. However, this is a gray area subject to be determined on appeal upon extension of time. This point likewise, exercised the mind of learned trial Judge as reflected at page 14 of the High Court's ruling that: - "Despite the fact that on the face of it, the reading of rule 21 of the rules seems to be plain, yet there is a lacuna since the law doesn't provide for instances which the applicant or claimant files a case electronically well in time, but he doesn't pay the necessary fees timely, as is in the present case. Evidently, filing the case electronically, and staying dormant defeats the purpose of the law. It is my view that, to fill in the gap we should look at the purpose of the law and other legal

requirements"” 7 While in some cases it was stated that the time for filling accrue from the date the control number for payment of the necessary fee is generated in the system, this was stated in the case NMB Bank PLC (supra) where the CAT stated that: “In terms of rule 21 of the judicature and application of Laws (electronic filling) Rules, 2018 the time for the filling accrues from the date that the control number for payment of the necessary fees was generated from the system.” As a result, I find that each party opted for a position in his or her favour. It is evident that the District Court's judgment was delivered on 30 July 2024, and the time to appeal expired on 30 August 2024. The records reveal that a control number for payment of the court fees was generated in the system on 23 September 2024, after the expiry of 24 days. As such, I believe that the correct position for timely electronic filing accrues from the date that the control number for payment of the necessary fee was generated in the system and payment made. I therefore find that the P.O. has merit. The appeal is dismissed without costs. Right to appeal is explained. 8 DATED at MBEYA on this 4 Day of March 2025. A. A. SINDA

JUDGE 9