JAMES ELIAS BARBAIDU VS MERRY HUSSEIN

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA PC CIVIL APPEAL NO. 14963 OF 2024 (C/F Monduli District Court Civil Appeal No. 8082 Of 2023, originating from Kisongo Primary Court, Civil Case No. 11 of 2023,) JAMES ELIAS BARBAIDU............................................................APPELLANT VERSUS MERRY HUSSEIN............. ........................................................ RESPONDENT JUDGMENT 05/11/2024 & 22/11/2024 NDUMBARO, J This is the second appeal, whereby the appellant is dissatisfied with the decision of Monduli District Court refusing an extension of time so that he may file an appeal against the decision of the primary Court at Kisongo which ordered the maintenance of three children and division of property jointly acquired between the appellant and respondent herein. Initially, the appellant and respondent cohabited for a long time, the respondent filed a civil suit No. 11 of 2023 before Kisongo Primary Court claiming maintenance of 6 children against the applicant herein and division of property acquired together. The applicant herein faulted that i she did not marry the respondent, they just cohabited and had one child who is two years old, he denied the rest of the 5 children mentioned by the respondent. Kisongo primary court decided that the applicant takes care of three children, after analysing the evidence and proving that the appellant herein is the father of those three children and ordered to sustain the children by monthly allowance of Tshs 90,000; division of a piece of land located at Babati acquired together 50% each, and a house at Mti Mmoja 60 to 40% to the appellant and the respondent herein respectively. The appellant herein was not satisfied with the decision of Kisongo Primary Court and appealed before Monduli District Court, in due course the respondent raised the Preliminary Objection that, the matter was time barred whereby the PO succeeded. Dissatisfied with the ruling hence this appeal with three grounds; 1. The trial magistrate erred in law and in fact failed to consider good and credible submission by the appellant on PO raised by the respondent on time limitation to file an appeal from the primary court. 2. The trial Magistrate erred in law and in fact, in favour of the respondent while the appellant was not time-barred to file his appeal from the primary court to the District court 3. The trial Magistrate arrived at the erroneous decision as it made wrong reasoning and failed to exclude days lost on obtaining a copy of the judgment and proceedings for the intended appeal. The appellant prays this appeal be allowed, and the Decision of Kisongo Primary Court be quashed and set aside. In the alternative, the proceedings order Civil Appeal No. 000028082 from the primary court was restored to proceed. When the matter called for orders before this court the applicant informed the court that, tried to serve the respondent with a summons to appear before the court but was not reachable, the affidavit of the court process server was to that effect and made prayer to proceed exparte. The court ordered substituted service. The summons was advertised in Mwananch Newspaper dated October 5 2024 on page 21, but the respondent did not show appearance hence the matter proceeded exparte. When the matter called for hearing applicant prayed to dispose of by way of a written submission, with leave of the court the prayer was 3 granted. Whereby the appellant enjoyed the service of Advocate Patrick Maligana. In 1st ground argued that the appellant was not present when the judgment was delivered and not aware until he was told by a relative, that the judgment was pronounced, the appellant made an effort to find a copy of the judgment and approached the advocate office for legal assistance. Advocate advised me to file an appeal. The appellant argued that, excluding weekends and holidays the appeal was within 28 days. Hence appeal was within the time. On the second ground argued the case was registered as a civil case while it was a matrimonial case, since the claim was for the division of property and maintenance of children the court ought to register the claim in matrimonial cause which time limit is 45 days not civil cause therefore the appellant cannot be punished. On the third ground trial magistrate failed to consider the exclusion of days before obtaining judgment, Saturdays and Sundays as per sections 19(1), (2), (3), (4) and (5) of the Law of Limitation Act Cap 89 RE 2019. The appellant pray the appeal to be allowed, file remitted back to the District Court for trial and order for matrimonial cause. Having summarized the applicant's submission, this court is called to step in the shoes of the District Court of Monduli to analyse whether the court was proper to rule out that the matter was time-barred in connecting the grounds of appeal raised by the appellant. I will combine the 1st and 2nd grounds because of their nature 3rd ground will be treated separately. On the first issue, the 1st appellate court ought to consider the effort made by the appellant herein to obtain a copy of the judgment and proceedings and time for consulting the advocate. It is a position of the law (Magistrate Court Act Cap 11 RE 2019 section 20(3) governing appeal from Primary Court to District Court that the appeal must be filed within 30 days from the date of its pronouncement. It was the testimony of the appellant in the 1st appellate court (Monduli District Court) that the judgment before Kisongo Primary Court was delivered on 10/10/2023, the appellant was supplied with a copy of the judgment on 21/10/2023 and an appeal was filed on 13/12/2023, delayed for 23 days. The applicant advanced for delay in filing the petition of appeal within 30 days that, he was waiting for a copy of the judgment. It is a settled position of law in Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 Government Notice 312 of 1964 Rule 4 that there is no requirement for attaching judgment and decree on the decisions arose from the primary court as; 4 (1) Every petition o f appeal to a district court from a decision or order o f a primary court and every petition o f appeal to the High Court from a decision or order o f a district court in the exercise o f its appellate or revisionai jurisdiction shall set out precisely and under distinct heads numbered consecutively the grounds o f objection to the decision or order appealed against and shall be signed by the appellant or his agent Referring to the above position, this is to say, the law of limitation particularly on the exclusion of the date of obtaining necessary documents which are judgment and decree are not applicable since the copy of judgment and decree are not necessary documents in filling appeal originating from Primary Court to District Court. The matter at hand originated from the primary court where there is no requirement to attach necessary documents such as judgment and decree on filing an appeal. The appellant delayed for 23 days, the applicant ought to have applied for 6 an enlargement of time by giving the reasons before filing his appeal, but he did not apply for it. The position receives support in the case of Kisioki Emmanuel Vs Zakaria Emmanuel, Civil Appeal No. 140 of 2016 CAT Arusha, page 12 held that; "We are aware that the provisions o f the LMA are not applicable to matters originating from the Primary Court and that such matters are, instead, governed by the provisions o f Government Notice No. 312 o f 1964. In the premises, we have no hesitation to hold that the learned Judge erred in law in extending and applying the provisions o f section 19 o f the LMA in favour o f the respondent to exclude the period o f time requisite for obtaining a copy o f the judgment and/or decree. The High Court, we think, ought to have applied Government Notice No. 311 o f 1964, which, unfortunately, has no provisions that mirror section 19 o f the LMA. Accordingly, we hold that there was no legal basis for excluding the time the respondent herein waited for a copy o f the judgment or decree to lodge his petition o f appeal to trigger the appellate process to the High Court. His appeal, lodged on the fifty- eighth day after the impugned judgment was delivered on 10th October 2012, was time-barred as the thirty-day limitation period prescribed by section 25 (1) (b) o f the MCA had elapsed. He ought to have sought and obtained enlargement o f time under the proviso to the aforesaid provisions instead o f lodging the appeal without leave. We thus find merit in the first ground o f appeal" I therefore find these grounds have no merit. On the 3rd grounds that the magistrate failed to exclude Sundays Saturdays and holidays before ruling that the matter was out of time contrary to sections 19(1), (2), (3), (4) and (5) of the law of limitation Act Cap 89 RE 2019. Going through the cited provisions has nothing to do with the exclusion of holidays Sundays and Saturdays but rather for the exclusion of one day before the day of obtaining proceedings and the time to obtain a copy of the judgment and decree. It is my view that since the judgment, proceedings and order, are not necessary documents for filing appeals originate from the primary court to the District Court as per Rule 4 Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 Government Notice 312 of 1964, I also find this ground to have no merit. The argument that he had delayed filing the appeal because of a delay in obtaining copies of judgment while the matter originated from the primary court is overthought, the position in the case of Kisioki Emmanuel Vs Zakaria Emmanuel supra is clear that the applicant ought to apply for an extension of time before logging the appeal as he was out of time for 23 days. I therefore find this ground to have no merit. That said I find that this appeal has no merit. Therefore, the decision of Kisongo Primary Court (the trial court) Civil Case No. 11 of 2023, is hereby maintained. Since the matter was heard exparte I find no need to order for the cost. r . . . D.D. NDUMBARO JUDGE 22/ 11/2024 9