4 tanzlii RULING CIVIL APPEAL 23987 OF 20240001

IN THE HIGH COURT OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE CIVIL APPEAL NO. 000023987 OF 2024 (Arising from the decision of Temeke District Court at Temeke one Stop Centre in Matrimonial Cause No. 150 of2023 by Hon. JACOB-SRM Dated12/08/2024) JACKLINE BEATUS MASSAWE..................................... APPELLANT

VERSUS BEDA MODEST LEVIRA................................................ RESPONDENT

RULING Date of last order: 29/11/2024 Date of Ruling: 04/12/2024 S.D. MWAIPOPO J, The Appellant Jackline Beatus Massawe being aggrieved by the decision of Temeke District Court at Temeke One Stop Judicial Centre in Matrimonial cause No. 150 of 2023, filed an appeal before this court containing three grounds of appeal. Upon being served with a copy of the Appeal, the Respondent filed a notice of preliminary objection based on the point of the law to the effect that: - a) That, an appeal is incompetent for failure to attach a copy of Decree appealed from in view of Order XXXIX Rule 1 of the Civil Procedure Code [Cap 33 R: E 2019]. The hearing of the preliminary objection proceeded by way of written submissions pursuant to the timetable filed by the court. At the commencement of hearing of the preliminary objection, the Respondent was represented by Mr Kurubone Pasensa while the Appellant enjoyed the services of Mr. Abdalla Ally Mbwana, both learned counsels. Submitting in support of the preliminary objection, Mr. Pasensa stated that, the appeal is incompetent for failure to attach a copy of the Decree appealed from in view of Order XXXIX Rule 1 of the Civil Procedure Code [Cap 33 fjl: E 2019]. The said provisions pprovide as follows; Every appeal shall be preferred in the form of memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in

this Order referred to as "the Court”) or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses there with) of the judgment on which it is founded." Mr. Pase’nsa also cited the following case to wit, Kotak Limited v. Vallabhdas kooverji (1967) EA 348, Gregory Raphael vs. Pastory Rwehebura, (2005) TLR 99 which was also cited with approval in the case ofONALA H. SERVICES LIMITED Vs SIMBA OIL COMPANY LIMITED, Civil Appeal No. 182 of 2023 HCT DSM, reported on Tanzlii. He submitted that the said decisions are couched in mandatory terms and imperative in nature, to the effect that whoever wishes to appeal to the High Court in the circumstances where the District or Resident Magistrate Court has exercised its original jurisdiction, he or she must mandatorily attach to: the Memorandum of Appeal, a Judgement and Decree appealed from. Mr. Pasensa further added that non-attachment of decree or memorandum of appeal is fatal and renders an appeal incompetent, and cannot be cured by an overriding objective principle (oxygen principle) as overriding objective! cannot be applied in circumstance where appeal itself is incompetent nor can it be applied in violation of the mandatory provisions of the law. He finalized his submissions by praying that the Appeal be dismissed with costs. Submitting

in rebuttal, Mr. Mbwana stated that the law cited by Respondent to wit Order XXXIX Rule 1 of the CPC is inapplicable in matrimonial appeals thus all cases cited by the Respondent in support of the preliminary objection are distinguishable to the matter on the hand. He furthermore submitted that Appellant Appeal is competent as stated in Section 80 (2) of the Law of Marriage Act (Cap 29 R.E 2019) which provide for appeal procedures in relation to matters originating from matrimonial proceedings. He added further that there is no requirement to attach copies of Judgement and Decree on appeals originating from matrimonial proceedings. He referred the court to the case of THERESIA BENEDICT CHONYA vs. BENEDICT MUHENA CHONYA Civil Appeal No. 32 of 2015, High Court of Tanzania at Dar es Salaam, on page 6. Section 80(2) of Law of Marriage Act is very clear about this. It is also clear by virtue of the laid down procedure in the matrimonial proceedings' rules, Rule 37 (1) that the appeal shall commence by filing a memorandum of appeal and Rule 37 (3) that it is the duty of the court having delivered the decision to transmit the record to the High court after the Memorandum of Appeal has been filed. This effect means that the party is not required to wait for judgment or decree to attach to the memorandum of appeal. He finalized! by praying for this court to overrule the preliminary

objection with cost. ! In rejoinder the learned counsel for the Respondent reiterated his submissions and stated that; the case of THERESIA BENEDICT CHONYA VS BENDICT MUHENZYA CHONYA, cited by the Respondent is distinguishable as it was ai matter on time limitation and the consideration was on laws providing for time in filing appeals, but the matter at hand is about failure ,1 to attach decree appealed from. There is a clear misconception on the same, since there is no dispute that, the law of marriage is applicable as substantive law in matrimonial proceedings, but when it comes to procedural laws, The Law of Marriage (Matrimonial Proceedings) Rules, G.N.NO. 136/1971 govern appeal process under section 80(2) of the LMA, does not remove such mandatory requirements of attaching the judgment .'1l and order it is appealed from, and therefore, he still ought to have appended it with the Memorandum of appeal, lack of the same makes the appeal to.be incompetent, hence it should be struck out. Having gbne through the rival submissions of the parties, the central question to be resolved is whether the objection has merit. I As per the record; the Respondent raised a preliminary objection based on i i[ point of law to the effect that: The appeal is incompetent for failure to attach a copy of the Decree appealed from as required under Order XXXIX Rule 1 of the Civil procedure code [Cap

33 R: E 2019]. Submitting on this objection, Mr. Pasensa cited Order XXXIX Rule 1 of the I Civil Procedure Code [Cap 33 R: E 2019] which states that:- Every appeal shall be preferred in the form of memorandum I signed by the Appellant or his advocate and presented to the I High Court (hereinafter in this Order referred to as "the i Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree i! i appealed from and (unless the Court dispenses there with) of the judgment on which it is founded." Mr. Mbwana I submitted that the law which has been cited is irrelevant to I the matter which is before this court, he further added that the proper law i I which governs Appeal in matrimonial matters is the Law of Marriage Act, Section 8C (2) (Cap 29 R.E 2019) and also the Matrimonial Proceeding Rules specifically Rule 37(1) and (3). It is very; clear that the main law which governs matters originating from matrimon al proceedings is the Law of Marriage Act and its rules. Section 80 (1), (2) and (3) of Law of Marriage Act states that:- (1) Any person aggrieved by any decision or order of a court ora resident magistrate, a district court or a primary court in a matrimonial proceeding may appeal therefrom to the High Court. (2) An appeal to the High Court shall be filed in the I magistrate's court within forty five days of the

decision or order against which the appeal is brought. 48 The Law of Marriage Act [CAP. 29 R.E. 2019] Cap.33 Form of proceedings Alternative reliefs Cross prayers for relief (3) Save to the extent provided in any rules made under this Act, the provisions of the Civil Procedure Code relating to appeals shall not apply to appeals under this Act. According to Section 80(3) of the Law of Marriage Act, it is very clear that in appeals originating from Matrimonial Proceedings, the Civil Procedure Code (CPC) is not applicable, save to the extent provided in any rules made under the Act. It is therefore my settled position that the main law governing appeals relating to matrimonial proceedings is the LMA and its Rules, unless there is a lacuna, then the CPC can come into play. Furthermore, Section 2 of the CPC is clear that the CPC would apply in the proceedings of the High Court subject to the express provisions of other written laws. That is whenever there is a lacuna Furthermore, Rule 37 (1) (2) and (3) of the Law of Marriage (Matrimonial Proceeding Rules) GN 136, of 1971, clearly provides for the Appeal procedures in matters originating from matrimonial proceedings, as it states as follows; (1) An appeal to the High Court under section 80 of the Act shall be commenced by a memorandum of appeal filed in the subordinate court which made or passed the decision, order or decree

appealed against. I (2) Every memorandum of appeal shall be either in Kiswahiii or in English and shall state briefly the grounds of I objection to the decision, order or decree appealed against. (3) Upon the receipt of the memorandum of appeal, the subordinate court shall transmit to the High Court, the i memorandum of appeal together with the complete record of the matrimonial proceeding to which the appeal relates. Rule 37 (3) (Matrimonial Proceedings rule) GN 136, of 1971, clearly places the duty of transmitting records to the subordinate court which conducted the trial; (that is the Memorandum of Appeal together with complete records of the matrimonial proceedings to which the appeal relates). Hence it is not the duty of the parties to submit records to the High Court rather it ,i is the duty of the subordinate court itself upon receiving the Memorandum of appeal to transmit all the records of appeal. Currently with the establishment of the e-cms all records for files initiated in the system are accessed via the system unless the proceedings were partly heard in the physical file and partly in the electronic system due to the fact that the stages of uploading various court documents in the system have also evolved at different periods and stages. Therefore, transmission in form of calling for physical records and or uploading the same would be involved. The current system

requires records to be uploaded by the relevant court onto the system. The current position of the law as it is, is that the provisions of Rule 37 (1), (2) and (3) only requires the Appellant to file his/her appeal inform of a Memorandum and then the subordinate court- shall transmit the records to the High court. Based on this provision I see nothing to fault the Appellant. Furthermore, while I appreciate the substance and citation of ORDER XXXIX of the CPC and the cases cited by the Respondent, I must also clearly state that the same are applicable in other proceedings not arising from the Matrimonial matters. The cases cited by the Respondent would be much more relevant in those other non-matrimonial cases and also in situations I where files would need to be physically transmitted to the High Court. As far as the current legal situation is; section 80 of the LMA and Rule 37 of the Matrimonial Proceedings Rules are still good laws. In the case of of I THERESIA BENEDICT CHONYA vs. BENEDICT MUHENA CHONYA (supra) cited by the Respondent, the High court while affirming this position held that: I Section 80(2) of Law of Marriage Act is very clear about this. It is also clear by virtue of the laid down procedure in the matrimonial proceedings' rules, Rule 37 (1) that the appeal I shall commence by filing a memorandum of appeal and Rule 37 (3) states that it is the duty of the

court having delivered the decision to transmit the record to the High court after the I Memorandum of Appeal has been filed. This effect means that I the party is not required to wait for judgment or decree to attach to the Memorandum of Appeal. Having, analysed the rival submissions above, I proceed to overrule the preliminary objection and dismiss it for lack of merit. Pursuant to Rule 37(3) of the Law of Marriage (Matrimonial Proceeding Rules) GN 136, of 1971 the District Court is ordered to transmit the records to the High Court and the order is hereby placed before the DR to coordinate and ensure that all the relevant'records relating to this appeal from the subordinate courts such as the Decree complained of are called for and uploaded onto the e-cms for easy accessibility of both parties not later than (10) working days from the date of this ruling. The matter shall then proceed for hearing on merit once all the records have been transmitted to this court. Considering the analysis above, I give no order for costs. The circumstances of this case are such that each party shall bear its own costs. It's so ordered S.D. MWAIPOPO

JUDGE 04/12/2024