9703 OF 2024 Magreth Wilson Chacha

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

AT TEMEKE CIVIL APPEAL NO. 9703 OF 2024 {Appeal from the decision of District Court of Terneke at One Stop Judicial Centre in Consolidated Matrimonial Appeal No. 48 and 54 of2023) MAGRETH WILSON CHACHA.......................................................... APPELLANT

VERSUS EMMANUEL ZADOCK MTORELLA.................................................... RESPONDENT

JUDGMENT 13th June & 16th August, 2024 BARTHY, J.: The respondent filed a petition in the Primary Court of Temeke at the Temeke One Stop Justice Centre (the trial court), seeking a decree of divorce, an order for child access, and maintenance for their two children against the appellant. After hearing the matter, the trial court determined that the marriage between the parties had irretrievably broken down. Consequently, the court granted the divorce, allowed the respondent visitation rights to the children three times a month under the appellant's i supervision, ordered maintenance payments of TZS. 400,000/- per month for both children, awarded custody to the appellant, and mandated an annual payment of TZS. 4,000,000/- for the children's education. Dissatisfied with the trial court's decision, both parties appealed to the District Court of Temeke at One Stop Justice Centre (the first appellate court), leading to a consolidated appeal. Now, the appellant, aggrieved by the ruling of the first appellate court in Consolidated Matrimonial Appeal No. 48 and 54 of 2023, brings this appeal before this court, advancing eight grounds of appeal as follows; 1. That, the honourable senior resident magistrate erred in law and fact for failure to determine the point of law raised in respect of Matrimonial Appeal No. 54 of2023.

2. That, the honourable senior resident magistrate erred in law by misdirecting itself in addressing ground 1 of the appellant's appeal by holding that there is nowhere in the trial court's record judgment it was ordered that the respondent's right of access to the issues must be at the appellant's premises. 2 3. That, the honourable senior resident magistrate erred in law and fact in reducing the amount of TZS 4,000,000/- ordered by the trial court to TZS 2,000,000/- without any justifiable factual and legal basis.

4. That, the honourable senior resident magistrate erred in law and fact by holding that the medical expenses and insurance can be covered by trial court's order of general maintenance of children.

5. That, the honourable senior resident magistrate erred in law and fact in holding that the trial court determined the reliefs (compensation arrears) claimed by the appellant as required by law.

6. That, the honourable senior resident magistrate erred in law in holding that the trial court considered the evidence tendered by both parties.

7. That, the honourable senior resident magistrate erred in law and fact for failure to properly consider the appellant's ----- written submission. 3 8. That, the honourable senior resident magistrate erred in law and fact by failing to properly re-assess, re-ana/yse and re-evaluate the evidence on records hence, reached into an erroneous decision. The appellant, therefore, prays that the appeal be allowed with costs. The hearing of this matter proceeded by way of written submissions. Both parties were duly represented: the appellant's submission was prepared by Ms. Elizabeth John Mlemeta, a learned advocate, while the respondent's reply was prepared by Mr. Hussein Swedi, also a learned advocate. Given the length of the submissions from both sides, I will not reproduce them in full; however, their arguments will be thoroughly considered in determining the appeal at hand. Before addressing the grounds of appeal, I must first address an issue raised by Mr. Swedi in his reply to the appellant's submission. He pointed out that Ms. Mlemeta, in her submission, cited numerous case authorities without providing him with a single copy of the cited cases. He urged the court to disregard these cases unless they were made available to both the court and the respondent. In response, Ms. Mlemeta argued 4 that, as an officer of the court, Mr. Swedi should be capable of locating the cases

himself, especially since they are accessible on TanzLII. It is indeed true that Ms. Mlemeta filed her submission in chief without attaching any of the case authorities she referenced. While she provided full, media-neutral citations for some cases published on TanzLII, she also cited unreported cases without attaching copies for easy reference of this court and the respondent. For unreported cases, it was Ms. Mlemeta's responsibility to provide copies to both the court and the respondent. Failure to do so means that this court will disregard those unreported cases in its findings. I will address the first ground of appeal, which concerns whether the trial magistrate erred in law and fact by failing to determine a point of law raised in Matrimonial Appeal No. 54 of 2023. Ms. Elizabeth Mlemeta, representing the appellant, argued that during the trial, the appellant's counsel had noted that Matrimonial Appeal No. 54 of 2023 was time-barred. Although this issue was raised in submissions, the appellate court did not address it as required. Ms. Mlemeta cited the case of Swila Sec. School vs. Japhet Petro, Civil Appeal No. 362 of 2019, where the court held that determining a matter that is time-barred renders the proceedings and any consequential orders null and void. She urged the court to review the notice of mention, the memorandum of appeal, and the exchequer receipt to establish

whether the appeal was indeed time-barred. Mr. Hussein Swedi, representing the respondent, countered that the issue of time limitation was raised by the appellant in her reply to the submission before the trial court, rather than at the preliminary stages of the case. Citing Order VIII, Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2019, emphasizing that any objections that could render the suit untenable should be raised in the pleadings. He supported his argument by referencing the case of Registered Trustees of the Baptist Convention of Tanzania vs. James Kasomi and 4 others, Misc. Civil Application No. 35 of 2021, which cited for approval the case of Commissioner General (TRA) vs. Pan African Energy (T) Ltd, Civil Application No. 206 of 2016. In this case, the court stressed the importance of raising preliminary objections before the hearing of the matter commenced. Mr. Swedi further contended that the appellant's invitation to consider the exchequer receipt to determine whether the appeal was time- 6 -------------- t'jrw'y barred was inappropriate because a point of law does not require proof of evidence. He urged the court to disregard the preliminary objection on this ground. In her rejoinder, Ms. Mlemeta reiterated that issues of time limitation and jurisdiction can be raised at any stage, including on appeal. She argued that the cases cited by the respondent's

counsel were distinguishable from the present case and should be disregarded. She emphasized the importance of examining the court records to determine whether the matter was time-barred and maintained that the exchequer receipt was crucial for calculating the time. Finally, she noted that the arguments presented by the respondent's counsel were not pleaded or raised during the trial. She, therefore, maintained her argument and prayer in relation to this appeal. Having swotted the contending arguments, I will address the first ground of appeal by focusing on whether the court failed to determine the point of law raised before it. From the submissions on both sides, it is undisputed that the appellant raised the issue of time limitation in the written submissions concerning the grounds of appeal before the first appellate court. It is a -4^ 7 well-established principle that a preliminary objection must be determined before addressing the substantive matter, as the objection may resolve the entire case without the need for a hearing on the merits. This principle was clearly articulated in the case of Deonisia Onesmo Muyoga & Others vs. Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) Court of Appeal at Tabora [2023] TZCA 124. Beyond the requirement that a preliminary objection should be addressed early in the proceedings, it is also crucial that the other party

be notified about the objection through formal notice. This allows the parties an opportunity to present their arguments before the court makes a determination. In this case, although the preliminary objection regarding the time limit was not properly raised, and the respondent was not given prior notice to prepare and argue the point, the issue of whether the appeal was filed within the time limit remains critical. When such an issue is raised, the court is obligated to address it at the earliest opportunity, as it directly pertains to the court's jurisdiction to hear the case. This principle was emphasized in the case of NBC Limited & Another vs. Bruno Vitus Swaio, Civil Appeal No. 331 of 2019, CAT at Mbeya (unreported), where the Court 8 of Appeal held that jurisdictional issues, particularly those related to time limits, must be resolved promptly to ensure the proper administration of justice, as it held that; "...courts are enjoined not to entertain matters which are time barred. Limitation period has an impact on jurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired." [Emphasis is supplied]. The court has observed that it is a well-established legal principle that an objection based on the limitation of time constitutes a preliminary objection rooted in a pure point of law. Mr. Swedi argued that Ms. Mletela requested the court

to examine the exchequer receipt to ascertain the time limit, suggesting that this process involves the assessment of evidence, which would mean it is not a pure point of law. However, to resolve such an objection, the court should only consider the plaint and its annexures without relying on any additional facts or evidence outside the pleadings to determine whether the suit is time- barred. This principle was underlined in the case of Ali Shaban and 48 Others v. Tanzania National Roads Agency & Another, Civil Appeal No. 261 of 2020 (unreported), where the court highlighted the importance of examining the pleadings and their annexures to address the issue of the time limit. Given that this case originates from a matrimonial cause, the law stipulates that an appeal must be filed within 45 days from the date of the impugned decision, as provided under section 80(2) of the Law of Marriage Act, Cap 29 R.E.

2019. To compute the period for filing the appeal and determine whether it was filed within the allowed time, the court must examine the pleadings and their annexures. Since the issue of the time limit pertains to the jurisdiction of the court, the first appellate court was obligated to address it before hearing and deciding the case on its merits. The failure to resolve this preliminary objection before proceeding further vitiates the proceedings and the resulting decision of the court. In the case of Thabit Ramadhan Maziku & Another v. Amina Khamis Tyela & Another, Civil Appeal No. 98 of 2011 [2011] TZCA 223 (7 December 2011), the Court of Appeal held that proceeding to determine a case on its merits before ruling on a preliminary objection renders the subsequent proceedings null and void. Therefore, it is evident that the proceedings of the first appellate court are fundamentally flawed due to its failure to address the preliminary io objection before proceeding to the merits of the case. Given this significant procedural error, I find merit in this ground of appeal which is sufficient to dispose of the entire appeal. Thus, I see no need to address the remaining grounds of appeal. Consequently, I quash the proceedings, judgment, and decree of the first appellate court, as they are nullified. I remit the matter back to the first appellate court for the determination of the preliminary objection raised. The hearing should be expedited, given that this matter has been pending in court for an extended period. In light of the circumstances, I make no order as to costs. It is so ordered. Dated at Temeke this 16th August, 2024. G. N. BART

JUDGE Delivered in the presence of Mr. Hussein Swedi Advocate for the Respondent, Ms. Bernadina Tayari, RMA and in the absence of the Appellant. 11