idd khamis vs mariam ahamad 2022 tzhc 10247 31 may 2022

idd khamis vs mariam ahamad 2022 tzhc 10247 31 may 2022

The appeal is incompetent for failing to comply with the mandatory requirement of Rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules, GN No. 136 of 1971, by being titled 'petition' instead of 'memorandum'; the defect is not curable under the oxygen principle, especially when committed by counsel.

Citation
idd khamis vs mariam ahamad 2022 tzhc 10247 31 may 2022
Parties
Appellant: Idd Khamis; Respondent: Mariam Ahamad
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
31 May 2022
Procedural Posture
Matrimonial Appeal / Preliminary Objection Ruling
Outcome
appeal struck out
Legal Topics
Appeals, Procedural Defects, Matrimonial Property Division, Maintenance, Jurisdiction
Source Language
English
Family Law Civil Procedure Appeals Procedural Defects Matrimonial Property Division Maintenance Jurisdiction

Case Brief

Summary, issues, holding and outcome

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Parties

Idd Khamis

Appellant

Mariam Ahamad

Respondent

Procedural Posture

Matrimonial Appeal / Preliminary Objection Ruling

Legal Issues

  1. 1 Whether titling the appeal as 'petition' instead of 'memorandum' renders it incompetent under Rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules, GN No. 136 of 1971
  2. 2 Whether the defect is curable under the oxygen principle
  3. 3 Whether the court has jurisdiction to entertain the appeal given the procedural defect

Ratio Decidendi

The appeal is incompetent for failing to comply with the mandatory requirement of Rule 37(1) of the Law of Marriage (Matrimonial Proceedings) Rules, GN No. 136 of 1971, by being titled 'petition' instead of 'memorandum'; the defect is not curable under the oxygen principle, especially when committed by counsel.

Court Disposition

appeal struck out

Orders

  • The purported appeal is struck out.
  • No order as to costs; each party to bear its own costs.