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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA PC CIVIL APPEAL NO. 21641 OF 2024 (Arising from Civil Appeal No 6/2023 in the District Court of Maswa at Maswa, originating from Civil Case No. 03/2023 of the Primary Court of Nyalikungu). JULIUS EDWARD MOLA………………………………...1ST APPELLANT ROBERT KIJA MOLA……………………………….......2ND APPELLANT EDWARD MOLA…………………………………………3RD APPELLANT VERSUS BIOSUSTAIN (T) LTD ..…..………………………………RESPONDENT RULING 8thOctober & 26th November, 2024. MASSAM, J:- This ruling is in respect of a preliminary objection raised by the respondent in her reply to wit; 1. That, the petition is hopelessly time barred for being filed beyond the statutory time. The briefs facts of the case are that the respondent filed a civil case before Nyalikungu Primary Court against the first appellant with his guarantors i.e 2nd and 3rd appellants claimed the sum of Tshs. 4,451,850/= being the outstanding debt for the purchase of cotton for the season 2022/2023. That the first appellant took a total of Tshs. 1 54,500,000/= for the purchase of cotton, but he bought and transported 2582 kg of cotton valued at 47,930,350/= and later returned to the company Tshs. 1,085,000/= and his wages for the work was Tshs. 1,032,000/= which was deducted, and the outstanding debt is Tshs. 4,451,850/=. After hearing of the case, the trial court decided in favour of respondent, the appellant unsuccessful appealed to District Court and hence this appeal. It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily. See the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011, The Bank of Tanzania Ltd vs. Devram P. Valambhia, Civil Application No. 15 of 2002, Khaji Abubakar Athumani vs. Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 2 and Modest Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 (all unreported). During the hearing of preliminary objection, on 8th October, 2024, the appellants were advocated by Geoffrey Tuli whilst the respondent enjoyed the service of David Rutayuga advocate, by consensus they agreed to urge their P.O by way of written submission, the prayers was granted and the court scheduled the dates as follows that respondent to file submissions on or before 21/8/2024. The appellants to file reply on 4/11/2024 and rejoinder if any on 11/11/2024 and ruling on 22/11/2024 and the court order was compiled with. Mr. Rutayuga advocate argued that the judgement at Maswa District Court was delivered on 24th day of October, 2023 while electronic filing to this Honourable court was on 2nd day of September, 2024 that to say 312 days after deliberation of the judgment. He added that the hand written exchequer receipt numbered 28006468 for filing fees to this court bears the date of 27th day of December, 2023 which means 68 days after the date of delivery of judgement. He forties his argument by referring the case of John Chuwa vs. Anthony Ciza [1992] TLR 233 the court held that ‘’The date of filing is the date of payment of fees and not that of receipt of relevant document at the registry’’. 3 Additionally, Mr. Rutayuga added that at page two of the appellant petition of appeal it shows that the petition of appeal was presented for filing at Maswa District Court on 3rd day of September, 2023 while the case was delivered on 24th day of October, 2023 which means that the case was filed before the date of judgment. Apparently, Mr. Rutayuga submitted that as per section 25 (1) of the Magistrates’ Courts Act Cap 11 R:E 2019 the appellants ought to file appeal within 30 days after the delivering of judgment but the records show that they appeal out of time. He cemented his argument by referring the case of Tryphone Rwezaula vs. Aloysius Benedicto Rutahiwa, Land Appeal No. 30/2020 HC of Tanzania Bukoba (Tanzili) at page 4 the court held that; ‘’having found the appeal to be time barred, the consequence is to have dismissed’’ On his side Mr. Tuli argued that the appeal was filed within the time as the petition of appeal was dully presented to the District Court of Maswa on 24/11/2023 in order to be dispatched to the High Court as per Section 25 (3) and (4) of the Magistrates’ Courts Act Cap 11 R:E 2019. Additionally, Mr. Tuli said that petition of appeal was duly presented to District Court of Maswa on 24/11/2023 and not on 3rd day 4 of September 2023 as alleged by respondent’s counsel and the petition was filed there in order to be dispatched to the High Court as per section 25 (3) and (4) of the Magistrates’ Courts Act Cap 11 R:E 2019 but unfortunately the appellant after presented the same nothing was done by the said court until 2nd day of September 2024 when the appellant filed the case online. Moreover, Mr. Tuli submitted that the hand written exchequer receipt number 28006484 for filing fees to this Honourable Court bears the date of 27th day of December, 2023 because it is a date which control number was created and therefore the case of John Chuwa (supra) is distinguishable because appellants filed the appeal within prescribed time as the petition of appeal was duly presented to the District Court on 24/11/2023. Finally, Mr. Tuli submitted that preliminary objection has no merit and the defect is cured by Article 107A (2) (d) of the Constitution of the United Republic of Tanzania of 1977 which require the court in dispensing justice without being tied up with technicalities provision which may obstruct dispensation of justice. 5 After going through the written submission of both parties, the issue to determine is whether the preliminary objection has merit or not. Mr. Rutayuga advocate argued that the judgement at Maswa District Court was delivered on 24th day of October, 2023 while electronic filing to this Honourable Court was on 2nd day of September 2024 that to say 312 days after deliberation of the judgment. He added that the hand written exchequer receipt numbered 28006468 for filing fees to this court bears the date of 27th day of December 2023 which means 68 days after the date of delivery of judgement. Apparently, Mr. Rutayuga advocate submitted that as per section 25 (1) of the Magistrates’ Courts Act Cap 11 R:E 2019 the appellants ought to file appeal within 30 days after the delivering of judgment but the records show that they appeal out of time. On his side Mr. Tuli argued that the appeal was filed within the time as the petition of appeal was dully presented to the District Court of Maswa on 24/11/2023 in order to be dispatched to the High court as per section 25 (3) and (4) of the Magistrates’ Courts Cap 11 R:E 2019. Additionally, Mr. Tuli argued that the hand written exchequer receipt number 28006484 for filing fees to this Honourable Court bears 6 the date of 27th day of December, 2023 because it is a date which control number was created and therefore the case of John Chuwa (supra) is distinguishable because appellants filed the appeal within prescribed time as the petition of appeal was duly presented to the District Court on 24/11/2023. Finally, Mr. Tuli submitted that preliminary objection has no merit and the defect is cured by Article 107A (2) (d) of the Constitution of the United Republic of Tanzania of 1977 which require the court in dispensing justice without being tied up with technicalities provision which may obstruct dispensation of justice. It is requirement of the law that any party aggrieved by the decision or order of a District Court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court as per Section 25 (1) b of the Magistrates Courts Act Cap 11 R:E 2019. I have gone through submission from both parties and court records. Indeed, the records revealed that the judgement at Maswa District court was delivered on 24th day of October, 2023 and the petition was duly presented and received in the District Court on 24/11/2023 however the hand written exchequer receipt numbered 28006468 shows 7 that the appellants paid fees on 27th day of December, 2023 which means 64 days after the date of delivery of judgement. More on that the record shows that appeal was filed online on 2nd September 2024 while the judgement was delivered on 24th October, 2023 which is almost a year. From the above analysis. I agree with the counsel for the respondent that the appeal was filed out of the time. I disagree with Mr Tuli that they filed appeal to the District court within the time because the appellants dumped the petition of appeal on 24/11/2023 but they paid fees on 27th December, 2023 which is construed as the date of filing the case as it was held in the case of John Chuwa vs. Anthony Ciza (supra). Also this court faced with similar situation as in the case of Came Oil (T) Ltd vs. Bahati Moshi and Another HC Civil Appeal No. 46/2020 at Mwanza, and Adamson Mukondya and another vs. Angelika Kokutona Wanga, Misc. Land Application No. 521/2018, where the court said that the matter is taken to be properly filed in court only after court fees are paid, and that, the date of presentation of application for filing can not be treated as the date for filing. Moreover, I disagree with the appellants’ counsel that failure of the appellants to file the case within the prescribed time is curable 8 under Article 107A (2) (d) of the Constitution of the United Republic of Tanzania of 1977 because procedural law must be adhered in dispensing justices. With all these, I pronounce that preliminary objection has merit and upheld. The appeal is hereby dismissed for time barred. In regard to the nature of the case. No orders as to costs. It is so ordered. DATED at SHINYANGA this 26th day of November, 2024. R.B Massam Judge 9