huruka shabani vs salehe kilumbi 2024 tzhc 201 8 february 2024

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO PC. CIVIL APPEAL NO. 1 OF 2023 (Arising from the decision of Kilosa District Court, at Kilosa in Matrimonial Appeal No. 34 of 2022; & Originating from the Urban Primary of Kilosa, at Kilosa in Matrimonial Cause No. 7 of 2021) HURUKA SHABANI APPELLANT VERSUS SALEHE KILUMBI RESPONDENT RULING 15'*^ Sept, 2023 & 8"^ Febr, 2024 M.J. Chaba, J. On the day of October, 2021 the appellant, Huruka Shabani petitioned for divorce at Kilosa Urban Primary Court against the respondent, Salehe Kilumbi seeking for among others orders, dissolution of their marriage and division of matrimonial properties. She also sought for maintenance and custody of the three issues resulting from their union. It is on record that, on 8'^'^ day of April, 2022, the trial Court dissolved the marriage, but the appellant was unhappy on aspects of division of the matrimonial properties, custody of the wedlock issues and their maintenance as well. Thus, she preferred an appeal to the District Court of Kilosa, at Kilosa (first Appellate Court) via Matrimonial Appeal No. 34 of 2022. „ _ , ,v Page 1 of9 ' 7 \ : I. The first Appellate Court had an opportunity to entertain and hear the appeal on merits and on 9*^^ November, 2022 it proceeded to dismiss the appellant's appeal with costs for lack of merit. Still aggrieved, the appellant is now before this Court for the second attempt seeking for what she believes to be her rights over the matrimonial properties as well as the custody and maintenance of the issues born during the subsistence of their marriage. According to the records, at first, the appellant filed her Petition of Appeal in this Court on January, 2023 and it was registered as Civil Appeal No. 3 of 2023. However, on technical ground and consent of the appellant, the Appeal was marked withdrawn on the 6'^'^ March, 2023 after the appellant conceded to the observation made by this Court to the effect that, as the matter stemmed from the Primary Court, it was wrong for it to be filed in this Court and registered as "Civil Appeal" instead of "(PC) Civil Appeal". As the appellant appeared to have no idea on the two terms, I was obliged to inform and educate her as to why the two terms differ from one another and how the respective cases, that is. Civil Appeal and (PC) Civil Appeal, are lodged in this Court. At the end of the day, the appellant had the following to say: "Mhe. Jaji kusema kweli nimeelewa kutokana na maelezo uHyonipa, naomba kuitoa kesi yangu Mahakamani Hi niweze kuifungua upya kwa kufuata utaratibu yaani kuweka PC. Civil Page 2 of 9 Appeal badaia ya inavyosomeka sasa hivi, CM!Appeal No. 3/2023". On his part, the respondent did not object the appellant's request. Hence, on 6'^ March, 2023, I granted the appellant's prayer without cost. On the 20'^'^ March, 2023 the appellant once again, lodged the present Petition of Appeal, registered as (PC) Civil Appeal No. 1 of 2023 which contained nine (9) grounds of appeal. So, when the matter was placed before me for necessary orders on 27'^^ June, 2023, by consensus, parties agreed to argue and dispose of the appeal by way of written submissions. However, during perusal of the Court records and composition of my judgment, I noticed two serious irregularities that affect the competence of the present appeal. For that reason, I have therefore, decided not deal with the main grounds of appeal on merits, and further that, I will neither reproduce the grounds of appeal nor consider them. Even the parties' rival submissions will fall in this trend. In view of the above, I will thus dwell on addressing the irregularities so noted. I mindful that, this being the second appeal leapt from the Urban Primary Court of Kilosa, ought to have been filed in the District Court of Kilosa, at Kilosa and not direct to this Court (High Court) as evidenced by the records. On scrutiny of the Court records, I found that the appeal before me was filed directly Page 3 of 9 in the registry of the High Court on 20'*^ March, 2023 contrary to the prescribed mandatory procedure as provided under section 25 (3) and (4) of the Magistrate's Courts Act (CAP. 11 R.E. 2019] as well as Rules 4(1) &(2) and 5 (3) & (4) of The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. No. 312 of 1964. As noted above, the appellant's petition of appeal was filed on March, 2023 and duly received by the. registry office through the registry officer one^ Shukuru Kilo. The records show that, the payment was made on 2023-03-20 at 13:04:05 hours via payment control number - 991400851380. On the same,day, the appellant was issued with the receipt number FH572571679306645 from a Bill Reference Number 923079167392600. Apart from aligning with the above necessary procedures for lodging a matter before this Court, it is the requirement of the law that appeals for matters originating from Primary Courts must be filed in this Court pursuant to the provision of section 25 (3) and (4) of The Magistrates' Courts Act [CAP. 11 R. E, 2019] and Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 (GN. No. 312 of 1964). Whereas; Section 25 (3) and (4) of The Magistrates' Courts Act (supra) provides thus: "Section 25(3)Every appeal to the High Courtshall be by way of petition and shaii be filed in the district Page 4 of 9 court from the decision or order in respect of which the appeaiis brought: Provided that, the Director ofPubiic Prosecutions may file an appeai in the High Court and, where he so fiies an appeai, he shaii give notice thereof to the district court and the district court shaii forthwith dispatch the record of proceedings in the primary court and the district court to the High Court". (4) Upon receipt of a petition under this section the district court shaii forthwith dispatch the petition, together with the record of the proceedings in the primary court and the district court, to the High Court.[Bold Is mine]. On the other hand, Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 (GN. No. 312 of 1964), articulates under Rule 4 (1) thus: "Every petition ofappeai to a district court from a decision or order of a primary court and every petition of appeai to the high court from a decision or order of a district court in the exercise ofits appeiiate or revisionaijurisdiction shaii set out precisely and under distinct heads numbered consecutively Page 5 of 9 the grounds of objection to the decision or order appeaied against and shaii be signed by the appeiiant or his agent". [See - Kikundi cha Wanawake wa Nguvu (Tausi Tengewa) Vs. Aziza Mtaalamu & 4 Others (Civil Appeal No. 35 of 2022)[2023] TZHC 21010 (18 September 2023) (Extracted from www.tanzlii.orQ^I and Sophia Mdee Vs. Andrew Mdee'& 3 Others, Civil Appeal No. 5 of 2015/CAT sitting at Arusha (unreported), From the wording,of the above cited provision of the law, it is clear that, an appeal to this Court (High Court) leapt from the Primary Court, shall be done by way of petition and has to be filed at the District Court v\/hose decision is the subject of the appeal. Upon receipt of a petition, it is the duty of the District Court to dispatch the petition together with the record of the proceedings of both lower Courts to this Court. The rationale behind the provision is to facilitate and speed up the process of appeal originating from the Primary Court by avoiding unnecessary delay in calling the records of proceedings from the lower Courts. On this facet, I am profoundly inspired by the decision of this Court in the case of Edward Mrugusi Vs. Enos Hangi Masalu,.(PC) Civil Appeal no. 50 of 2021, HCT at Mwanza where the Court insisted on the point. As stated earlier on, pvil Appeals in the District Court and High Court for matters originating from,Primary Courts are governed by the Civil Procedure Page 6 of 9 /- (Appeals in Proceedings Originating in Primary Courts) Rules, Government Notice No. 312 of 1964) which provides for among other things, the forms and contents of the appeal (Rule 4), and registration of appeal (Rule 5). As to the consequences of violating the relevant procedural requirements of the law, this Court in the case of Michael Joachim Tumaini Ngalo Vs. Jitesh Jayantil Ladwa (Civil Case 18 of 2021)[2022] TZHC 13881(7 October 2022), which cited the decision of the Court of Appeal of Tanzania in the case of Commissioner General Tanzania Revenue Authority Vs. JSC Atomredmetzoloto (Armz) (Consolidated Civil Appeals 78 of 2018) [2019] TZCA 533(16 April 2019), held thus: - "Jurisdiction is a creature ofstatute and as such, it cannot be assumed or exercised on the basis ofiikes and disiikes ofthe parties. That's is why the court has in number of occasions insisted that the question ofjurisdiction is fundamentai in courtproceedings and can be raised at any stage even at the appeiiate stage. The court suo moto can raise it, in adjudication the initiai question to be determined is whether or not the court or tribunai is vested with requisite jurisdiction." The Court further stated that: /, , V ; - Page 7 of 9 v\ s "An appeal is a creature oflaw where a person Intending to lodge an appeal before the higher Court must do so in accordance with the law". Guided by the law and the authorities cited hereinabove, there is no.doubt that, from the inception of the present petition of appeal and the manner it was registered in this registry, the whole process contravened the governing law of which the resultant thereof is to declare that the appellant's appeal is incompetent before the Court. In the final event, it is my holding that this appeal is incompetent before this Court and accordingly, I proceed to strike it out with no order as to costs. The appellant If so wishes, she is at liberty to file her petition of appeal subject to compliance with the, laws governing appeals for matters originating from Primary Courts and the Law of Limitation Act [CAP. 89 R.E. 2019]. Order accordingly. DATED at MOROGORO this day of February, 2024., ^ M. J. Chaba JUDGE 08/02/2024 Page 8 of 9 Court: Ruling delivered in this day of February, 2024 in the presence of the Appellant and Respondent who appeared in person through Video Conference facility linked from the District Court of Kilosa, at Kilosa. .P. Kilpwa DEPUTY REGISTRAR 8/02/2024 Court: Right of the parties to appeal to the Court of Appeal of Tanzania fully explained. S-P-i^Kmawa DEPUTY REGISTRAR 8/02/2024 Page 9 of 9