OC MSHANA CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY ONE STOP JUDICIAL CENTRE CIVIL APPEAL CAUSE NO. 31065 OF 2025 (Originating from Civil Appeal No. 970 of2024, delivered by Temeke District Court on 21st October, 2024 by Hon. H.R. Mwakaiinga PRM) JUSTINE ALEX MSHANA............................................... APPLELLANT VERSUS ROSE JUMA MARUSU..................................................... RESPONDENT RULING Date of last order:20/2/2025 Date of Ruling: 21/2/2025 S. D. MWAIPOPO J, Pursuant to the order of the court dated 15th January, 2025 parties were ordered to address the court on the competency of the Appeal specifically whether the Appeal was filed within the time set by the law. On the material day, both parties appeared in court. The Appellant fended for himself and the Respondent was represented by learned counsel Karilo Mulembe Karilo. Submitting on the issue raised by the court on the competence of the appeal, the Appellant filed two sets of submissions, one filed on the 22nd of January 2025 and another one on the 23rd of January 2025 contrary to my order issued on the 15th of January 2025. For easy of reference, on the material date, I issued the following orders; 1. Parties as to address the court on whether the matter/appeal has been filed within time. 2. The hearing of the matter shall proceed by way of written submissions 3. The Appellant to file his submissions on or before 27/01/2025 4. The Respondent to file a reply to the written submissions on or before 6/2/2025 5. Rejoinder if any on 11/2/2025 6. Ruling on 14/2/2025 at 2:00 hrs. 7. Parties to attend Clearly, based on the said order I did not order the Appellant to file two sets of submissions but rather an order for filing one time set of submissions. In this regard I will only take up the submissions filed on the 22nd of January 2025 for my judicial consideration. I shall discard the ones filed on 23rd of January 2025 since the said submissions were filed without leave of the court. Further, the submissions for 22nd January 2025 were also responded to by the Respondent. Likewise, I have also observed that the Appellant went far ahead and filed submissions for the appeal contrary to the order of the court. I shall also not dwell on those submissions at this stage since they were also not ordered by the court. In this regard, the Appellant is also reminded to adhere and comply with the orders of the court, at all the time. The court in countless occasions has emphasized on the need of the parties to comply with the order of the court. That done and said, I now revert to the submissions filed on 22/1/2025 for my judicial consideration. Submitting on the issue raised by the court, the Appellant in his submissions contended that the impugned decision was issued on 21/10/2024, however, in reality there was no any decision issued, although the Hon. District Court Magistrate purported to read the decision from her own head. He contended that, the Magistrate read only the last part of the decision, if there was one. He further asserted that, assuming that there was a decision as purported, the Appellant wrote a letter dated 29/10/2024 and a reminder dated 25/11/2024 requesting for copies of the Judgement and decree. The Appellant submitted further that, aware of the fact that for decisions emanating from primary courts, the time required to get a copy from the district court, for purpose of appeal is not counted out because the attachment of a copy is not a requirement. The Appellant thus prepared the appeal on 28/11/2024, near imaginary grounds. He referred the court to the case of Mary Kimaro vs Khalfan Mohamed 1995 TLR 202. Submitting on the date of judgement, the Appellant contended that, the proper Judgement and Decree was in fact delivered on the 3rd December 2024 and the Appellant was given 30 days within which to appeal as can be seen from the copy of the Judgement and Decree. That armed with the Judgement and Decree, the appeal was corrected on the first page and e- filed on 4th December 2024, admitted on 5th December 2024 and a control number generated and paid for and a hard copy presented for stamping on 6th December 2024. The Appellant further submitted that, counting from 3rd December 2024 to 5th or 6th December, 2024, the appeal was filed within 2 days or counting from 21/10/2024 to 5th December 2024 it is 44 days or if 6th December, 2024 is taken, then the days are 45. The Appellant submitted that, assuming that, the date of Judgement is 21/10/2024, then the time starts to be counted from the next day, the 22nd October 2024 as per section 60(b) of the Interpretation of Laws Act. The Appellant submitted further that, the Judgement erroneously explained the right of appeal to be within 30 days instead of 45 days from the 3rd Day of December 2024, which could have confused the court to order parties to address it on the timeliness of appeal. Thus, the error arises from wrongly construing the appeal as being guided by section 20(3) of the MCA Cap 11 RE 2022 instead of 45 days as per section 80(1) and (2) of the LMA. He referred the court to the case of Jimi Mardas Gondian vs Sarah Nkinda, Matrimonial Appeal No. 13043/2024 HC at Morogoro (Magoiga J. pg. 5 and 6). Therefore, he submitted that the Appeal was filed within time. He then went on to file his submissions in respect of the appeal, which I shall not determine them as already stated herein above. Responding to the submissions filed by the Appellant, the learned counsel for the Respondent supported the Appellant's submissions. He agreed with the Appellant that the time limit for filing the appeal from the District Court arising from matrimonial proceedings is 45 days. The Applicable provision is section 80(1) of the LMA and not 20(3) of the MCA which is applicable in criminal proceedings. He referred the court to the case of Tumpe Thomas Mwakyonde vs Josia Abdul Kilwa Pc. Civil Appeal No. 90/2020 pg. 8 and the case of Tumaini Ngerefa vs. Anna James Pc. Civil Appeal No. 23/2020 (unreported) where the court emphasized that the Magistrates Courts Act is inapplicable in matrimonial proceedings emanating from the primary court except the Law of Marriage Act. Lastly, the learned counsel argued that the District magistrate erred in giving parties the right of appeal within 30 days instead of 45 days therefore he agreed that the appeal was filed within time. On a different note, the learned counsel declined to address to court on the submissions relating to the appeal since they were not ordered for by the court. In rejoinder the Appellant reiterated his earlier submissions and those of the Respondent in support of his appeal and prayed for the court to find that the appeal is in order. Having gone through the submissions of the parties the issue to be resolved is whether the appeal is competent before this court. The Appellant on his part has submitted that the Appeal is competent and within the time limit of 45 days stated in the LMA, having followed all the requisite procedures for its filing and payment, following issuance of the control number. In his submissions the Appellant has pegged his arguments on two different dates of the Judgement delivery that is 21st October 2024 and 3rd December 2024 to convince the court to find that his appeal is in order. He also contended that Section. 80 of the LMA Act is the provision governing Appeals arising from the matrimonial proceedings and not Section. 20(3) of the MCA which is a general law, as erroneously considered by this court. Further, he argued that the District Court Magistrate was wrong in giving 30 days to the parties to file their Appeal instead of 45 days which could have erroneously led this court to believe that the days for filing the appeal were 30 instead 45. I have perused the appeal and its records and have observed as follows: According to the proceedings contained in the e - case management system file, the decision in respect of this impugned decision was delivered on 21st October 2023. I refer to the proceedings dated 4 Nov, 2024 where the district court is recorded to have stated as follows: COURT: The matter has been decided on 21/10/2024 but it is updated today. I again refer to proceedings dated 3rd December 2021 where the District court is recorded to have stated as follows: COURT: The matter is already decided since 21/10/2023 but it is only published today. Based on the record of the proceedings quoted herein above, the impugned decision was delivered on 21/10/2024 and not on 3/12/2024, the date on which it was uploaded and published in the electronic system for case management. According to the submissions of the Appellant, he has conceded that the matter was decided and or read over to the parties on 21/10/2024, save for the contents which were read to the parties, which are best known to himself. Whether the contents were not enough or not is a question of proof, which he has not provided in this court, except for the record of proceedings of the District court, which I have personally resorted to like any other court of record could have done, which has also guided me in the determination of this matter and the record clearly indicates that the decision was read on 21/10/2024. But all in all, it has been submitted that the decision was rendered on the 21/10/2024. The Appellant has also equally submitted that the Judgement was delivered to the parties on 3/12/2024 in which he also implored this court to take it as the date of the Judgement for purposes of assessing whether the appeal was filed within time or not. I have observed that in the course of assessing whether the appeal has been filed within time or not, parties herein have spent much time making a distinction between the period of 45 days provided in the section 80 of LMA and a period of 30 days stated in the section 20 (3) MCA, emphasizing that either this court was misguided by the final expression contained in the Judgement of the District Court informing parties of their right to appeal within 30 days instead of 45 days. In this regard and to make the point clear, I would like to recite the order of the court on that day with regard to the parties addressing the court on the competency of the Appeal. On that day, If i may repeat, the court ordered, among other things, as follows: ''Parties to address the court on whether the appeal has been filed within time". Clearly from the said order, parties were ordered to address the court on whether the appeal is time barred or not, that is it. There was no any specific mention of the provisions of section 20(3) of the Magistrate Courts Act. Parties should always be vigilant to ensure that they aware of the orders issued by the court and that their submissions are aligned as such. Having made that point clear I now proceed to analyze the competence of the appeal as follows: The law governing appeals arising from matrimonial proceedings is indeed the Law of Marriage Act. Section 80(2) provides for the period of 45 days within which an aggrieved individual can appeal to the High Court i.e. 45 days of the decision or order against which the appeal is brought. In fact, the said law requires the said appeal to be first lodged in the court that issued the said decision and not directly in the appellate court. The Appellant has contended that his appeal was filed within the period of 45 days from 21st of October 2024 or was delivered within a period of 2 days from the 3rd December 2024, when the Judgement was delivered. Therefore, he gave this court two options to trade with. He submitted further that counting from 3/12/2024 to 5th or 6th December the appeal was filed within 2 days. Counting from 21/10/2024 to 5th December he gets 44 days or 6th December 2024, he gets 45 days. He emphasized that days should be counted from 22/0/2025 as per the Interpretation of Laws Act. He also further argued that, the appeal document was e-filed on 4th December 2024 and admitted on 5th December, 2024 and a control number generated and paid for and a hard copy presented for stamping on 6/12/2024. I have perused the records contained in the e-case file/digital file and observed that, indeed the appeal was submitted on the 5th of December 2024, and it was admitted on 6th December 2024 and finally filed in the e- cms on 10th December 2024. I am aware of the position of the law contained in the JALA (e-filling Rules) 2018 regarding the submission date as the filing date. However, I am also alive to the fact that the said provisions of the law have been tested in various cases and been amplified and interpreted by the High Court and the Court of Appeal in its various decisions to the effect that the date of payment is the date of filing. The Appellant in his submissions has not substantiated as to when exactly he paid for the appeal apart from stating that the matter was e-filed on 4th December, admitted on the 5th December 2024 and a control number generated and paid for and presented for stamping on 6th December 2024. I have also perused the records contained in the e-case file regarding payment and observed that the bill was issued on 6th December 2024 which was already a 46th day since 22nd of October 2024, (counting date) and it was also stamped as paid for on that date. Therefore, if I take the date of payment, it would still be the 46th day of filing the appeal, if I take the date the bill was issued /control no. generated, it would still be 6th of December which is a 46th day, counting from 22nd of October 2024. I shall not dwell on the final filing date indicated on the electronic case management system which is 10th December, 2024, which would be a 50th day. I shall end up on the date the bill was stamped as paid for, that is; on 6/12/2024, which is a 46th day, which is beyond the 45 days required by the LIMA. Indeed, the e-cms has created transparency than ever before. Based on the above submissions, I hold that the appeal was filed out of time hence time barred. Now before I discuss the fate of this appeal, that is; if I should dismiss it or otherwise, I have also observed that, there have been some arguments regarding the discrepancies on the date of Judgement being either 21/10/2024 or 3/12/2024. I must emphasize that as per the record of the proceedings, date of Judgement delivery was 21st October 2024 and not 03/12/2024 as indicated herein above and contended by the Appellant. This date has been stated by the district court magistrate in her own proceedings and that the date of 3/12/2024 is the date of the publication of the decision in the system. These are two different dates. And I hope that the ongoing innovations of the system will one day pick them as two different dates. I have also further observed that even the Decree bears a date of 21/10/2024 and that the Appellant in his own submissions has also stated that he is also aware that the date of Judgement was 21/10/2024. That is why he stated in his submissions that he wrote a letter requesting for the records in October 2024 and a reminder letter in November 2024, way before December 2024, when the appeal was filed in court. In view of the anomalies cited, I find that it is imperative for the records of appeal to be rectified and the correct dates to be inserted, as contradictions have originated from the district court records. The date of the Judgement is 21st of October 2024 and it is supposed to read as such since 3rd of December 2024 is not a judgement date, rather it is the date when the Judgement was uploaded/published into the e-cms file, having been delivered on the 21st of October 2024. Once rectified the date will also be harmonized with the one appearing on the decree i.e. 21/10/2024 as required by the procedure. The court in countless occasions have emphasized on the importance of the date of Judgement to tally with the date of the decree. Therefore, the District court has to issue clean certified copies of records to the Appellant bearing the correct date of judgement delivery. In this regard in view of the anomalies cited, I will not dismiss the appeal and instead I proceed to strike it out for being time barred. I further order the Appellant to approach the District Court of Temeke at One Stop Judicial Centre, for the rectification of the records as discussed above, if he still so wishes to pursue his appeal, subject to the law of limitation. Costs shall be borne by the parties. It is so ordered. Dated at Temeke this 21st Day of February 2025 S.D. MWAIPOPO JUDGE 21/2/2025