JUMA BAKARI V

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT IJC MOROGORO CIVIL APPEAL NO. 25987 OF 2023 (Arising from the Ruling of the District court of Morogoro in Civil Appeal No. 25/2023, Originating from Civil Case No. 69/2023 at Kihonda Primary Court) BETWEEN JUMA BAKARI…………………………………………………APPELLANT VERSUS YUNGULA SUDI…………………………………………... RESPONDENT JUDGMENT 21st of March, 2024. MANSOOR, J. Before the primary Court of Kihonda in Morogoro, the respondent herein filed a suit against the appellant demanding payment of THz. 1,000,000/= as compensation for adultery, it was Civil Case No. 69 of 2023. At the conclusion of trial, the court entered the decision in favor of the respondent and ordered the appellant to pay the payments claimed by the respondent. Page 1 of 6 Disgruntled, the appellant appealed before the District Court of Morogoro against the whole judgement in Civil Appeal No.25 of 2023, unfortunately the petition of appeal was slapped with the notice of the preliminary objection by the respondent on ground that it was time barred. The 1st appellate court sustained the preliminary objection, and consequently, the appeal was dismissed for being time barred. Dissatisfied again and still adamant for his right the appellant decided to challenge the decision before this court basing on the following ground; 1. That, the honorable Magistrate erred in law in holding that the appeal was time barred while it was not as the Appeal was filed within the prescribed time. With the leave of the Court, the hearing of the appeal was canvassed by way of written submission by the order of this Court dated 18th day of January, 2024. The appellant was represented by Ignas Seti Punge the learned advocate, whereas on his part, the respondent appeared personally and unrepresented. Page 2 of 6 Counsel Punge was the first one to start kicking the ball rolling. Submitting in support of the appeal he argued that the appeal was timely filed and cited the provisions of section 20(3) of the Magistrate`s Courts Act [Cap 11, R.E 2022] and section 19 of the Law of Limitation Act [Cap 89]. Connecting the cited provisions of the law with the impugned appeal the learned counsel reasoned that, the appeal was within the prescribed 30 days as it was electronically filed on 18th August,2023. At the end he urges this court to revisit the records of appeal to find the truth of his submission; he put his reliance on the case of Halfan Sudi v. Abieza Chichili [1998] TLR 527, the Court of Appeal of Tanzania where the court discussed on the seriousness of the court record insisting that they are presumed to accurately represents what happened. In his reply, the respondent strongly opposed the appeal; he refuted the appellant’s counsel submission and submitted that the petition of appeal was lodged before the District Court of Morogoro on 21st August 2023. The respondent cited section 20(3) of the Magistrate Courts Act (Cap 11 R.E 2019) to insist on the prescribed time to appeal to the District Court to be 30 days. Page 3 of 6 The respondent argues that the time started to run on 19th July 2023 when the judgment of Kihonda Primary Court was delivered to 21st August 2023 when the petition of appeal was filled and he concluded that almost 32 days has passed and the appellant herein was already time barred. To fortify his stance, he referred this court to the case of Angela Wilson v. Vicent Karegelo (PC Civil Appeal No. 16 of 2020) [2021] TZHC 4210. I have objectively gone through and considered the records of both the trial court and 1st appellate court as well as the rival submissions made by the parties. The crucial issue for consideration, determination and decision thereon is whether or not the instant appeal has merit. As the record speak for itself, there is no dispute that appeals originating from the Primary Court has to be filed at the District Court within 30 days as specified under section 20(3) of the Magistrate Courts Act (Cap 11 R.E 2019). I have also viewed the appellants' petition of appeal filed in the District Court and found that it was filed on 21/08/2023. The said petition was accompanied with payment receipt with Bill Reference No. 991400950148 which shows that the payment was done at 15:09:27 on Page 4 of 6 18/08/2023. Hence, since the payment for filing the petition of appeal was done on 18/08/2023 and for unknown reasons, the respondent managed to present the documents to the respective registry before the District Court on 21/08/2023. What matters in this particular situation is, the court has to look and consider the time when the payment bill for court fees was effected/done by the client. No doubt that, the appellant's petition of appeal was thus, legally filed on 18/08/2023 and not 21/08/2023 as it appears on the documents signed by the registry's officer. (See: Judicature and Application of Laws (Electronic Filing) Rules, 2018; GN. No. 148 published on 13/04/2018). Therefore, counting from 19/07/2023 after the impugned judgment was delivered to 18/08/2023 when the payment bill for court fees was effected/done is 29 days. That means two days has been excluded (19/07/2023 when the judgment was delivered and 18/08/2023 when the appeal was lodged). In view of the above explanations, I am satisfied that the appellant filed his petition of appeal within the prescribed time. For reasons I have given, I hereby allow the appeal with cost and I consequently quash the decision of the District Court of Morogoro in Page 5 of 6 respect of the raised preliminary objection and I order the District Court of Morogoro to proceed with Civil Appeal No.25 of 2023 on merits. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 21ST DAY OF MARCH 2024. L. MANSOOR JUDGE 21/03/2024 Page 6 of 6