corrected MOSI MWITA TANZLII0001

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC. CIVIL APPEAL NO 44 OF 2023 (Originating from the decision of the District Court of Temeke One Stop Centre in Matrimonial Appeal No. 11 of2023) MOSI MWITA................................................................................APPELLANT VERSUS ANTONY LUCAS........................................................................ RESPONDENT JUDGMENT 24/04/2024 & 07/06/2024 M, MNYUKWA, J. The appellant, Mosi Mwita, lodged the present appeal to challenge the decision of Temeke District Court One Stop Centre in Matrimonial Appeal No. 11 of 2023 which arose from Matrimonial Cause No. 81 of 2014 in the Primary Court of Kawe. The genesis of the present appeal is based on the dissatisfaction of the appellant on the Order of Temeke District Court One Stop Centre which dismissed the appeal for being time-barred. Dissatisfied with the decision of Temeke District Court One Stop Centre, the appellant preferred this appeal with only one ground to wit: 1. That the appellate court erred in law by deciding that, the suit was filed out of time. During the hearing, the appellant was represented by Rehema Leornard Mghweno, a counsel from Everlasting Legal Foundation while Amon Rwiza, the learned counsel, represented the respondent. It is on record that, the respondent filed a preliminary objection to the effect that the appeal is time-barred under section 80 (2) of the Law of Marriage Act, Cap. 29 R.E 2019. When the matter was called for hearing of the preliminary objection, it was contended by the counsel for the respondent that the impugned Judgment sought to be challenged was delivered on 23/11/2022 while the time for lodging the appeal lapsed on 06/01/2023. The counsel for the respondent submitted that the appeal was filed after 56 days from the date of delivering decision while the same was supposed to be filed within 45 days. He therefore prays the matter to be dismissed with costs. Responding thereto, the counsel for the appellant contended that the matter was filed within time since the appeal was filed online on 22/12/2022 which is 29 days from the date of delivering the decision. And, that according to section 21 (1) and (2) of the Judicature and Application of Laws Act, (Electronic Filing) Rules, 2018, once the matter is filed online, 2 the same is considered to have been duly filed. He added that the appeal is shown to be filed on 16/01/2023 as it is evidenced in the Memorandum of Appeal, but this was due to the fact that the court's filing system since they were given an order to file the appeal at Kawe Primary Court for the lower court's record to be brought. He therefore prays the court to consider that the appeal was filed online within time and the preliminary objection be dismissed with costs. After hearing both parties, the presided magistrate was satisfied that the appeal was filed 56 days after the trial court's decision was delivered. He thus dismissed the appeal with no order as costs. The appellant thereafter, appealed to this court. The appeal was argued by way of written submissions. Arguing in support of the appeal, the learned counsel for appellant submitted that, the impugned decision sought to be challenged was delivered on 11 /11/2022 and the 45 days of appeal lapsed on 26/12/2022 and the present appeal was filed online on 23/12/2022 which is within the prescribed time provided by law. The counsel submitted that Rule 21 (1) of the Judicature and Application of Laws Act, (Electronic Filing) Rules, 2018 Electronic Filing Rules, 2018 provides that a document shall be considered to have been filed if it is 3 submitted through the electronic filing system. He supported his argument with the case of Mohamed Hashil vs National Microfinance Bank Ltd (NMB BANK), Labour Revision No. 106 of 2020. The counsel went on to acknowledge that the above-cited Rule of the Judicature and Application of Laws Act, (Electronic Filing) Rules, 2018 cannot be read in isolation and the same must be read together with Rule 3 and 5 of the cited Rules which provides that a document is deemed to have been duly filed in court when the necessary fees are paid. However, she acknowledged that, appellant was exempted from paying fees under the Court Fees Rules, GN. No. 247 of 2018. She, therefore, strongly argued that the Matrimonial Appeal No. 11 of 2023 was filed within time and she prayed the appeal to be allowed and the court should not consider the day when the hardcopy documents were physically received in court. Responding, the counsel for the respondent strongly objected to the appeal. He referred to section 80 (2) of the Law of Marriage Act, Cap. 29 R.E 2019 and submitted that the law requires the appellant to file his appeal within 45 days from the decision date. He claimed that the impugned decision was delivered on 22 /11/2022 and the 45 days of filing w 4 the appeal lapsed on 05/01/2023 while the appellant filed her appeal on 17/01/ 2023. The counsel contended that, if the appellant filed his appeal on time through the online filing system, he was supposed to exhibit the same by submitting the online printout proving the same during the hearing of the preliminary objection. He added that, if truly the delay to file the appeal within time was caused by the filing system, he ought to have used Rule 24(5) of the Judicature and Application of Laws Act, (Electronic Filing) Rules, 2018 where she could have obtained leave to file leave to file the same under Rule 24(6) of the same Rules He cited the case Maliselimo B. Mbipi vs Ostina Martini Hyera, Misc. Civil Application No. 08 of 2023 and the case of Loitare Medukenys vs Anna Navaya, Civil Appeal No. 07 of 2018. Before winding up his submissions, the learned counsel for the respondent submitted that, as per section 74(1) of the Civil Procedure Code, Cap. 33 R.E 2019, the appellant was required to apply for an extension of time and not to prefer the appeal because the impugned Order is not subject to appeal. ?tl 5 After hearing the submissions from both parties, the main issue for consideration and determination is whether the appeal is meritious. However, before I determine the appeal on merit, I must respond to the question of law raised by the counsel for the respondent that the impugned Order sought to be challenged is not appealable. Without much ado, I have to clearly state that, I don't think if this issue needs to detain me much. It is on record that the respondent raised a point of preliminary objection before the presided magistrate that the appeal was time-barred as it was filed out of the prescribed time provided by the law. The said preliminary objection was sustained and the appeal was dismissed for being time- barred. In that circumstance, it was expected for the presiding magistrate to compose a Ruling and not an Order. Unfortunately, enough, the presided magistrate composed an Order. Nevertheless, even if the presided magistrate composed the Order instead of the Ruling, still, the appellant is allowed under the law to challenge the said Order because it dismissed the appeal. In other words, the said Order is not an interlocutory order as respondent's counsel suggested. Therefore, I find this objection is baseless and I proceed to determine the appeal on merit. 6 Coming now to the merit of the appeal, it is on record that the impugned decision was delivered on 23/11/2022 as it was rightly submitted by the counsel for the appellant. Parties are in agreement that, the appeal in matrimonial proceedings as provided for under section 80(2) of the Law of Marriage Act, Cap. 80 R.E 2019 should be filed within 45 days from the date of the decision. Counting 45 days from 23/11/2022, the Matrimonial Appeal to challenge the decision delivered by the primary court was supposed to be filed on or before 07/01/2023. However, the physical documents filed in court, which in fact is the Memorandum of Appeal, shows that the appeal was filed on 16/01/2023. Insisting, the appellant disputed this to be a filing date for what she claimed that, the appeal was filed online through the electronic filing system on 23/12/2024. However, nothing was tendered to exhibit the same. The question now to be asked is, who is supposed to exhibit that the appeal was filed within time? It is my considered view that, the appellant is mandatorily required to prove so since the respondent raised a preliminary objection based on the Memorandum of Appeal filed in court and served to him. 7 As I have indicated above, the records supplied to me are very clear that the appeal was filed on 16/01/2023 especially the Memorandum of Appeal which is available in the court file, and what is claimed by the appellant is not seen in the court file. In this circumstance, the appellant was duty bound to prove that the appeal was filed electronically on the purported date she claimed to have filed the same by exhibiting it with an electronic filing records printout available in the judicial statistics dashboard system. Therefore, since I spent considerable time counting actual days from 23/11/2022 when the decision was delivered by the primary court, to the time when appellant filed her appeal on 16/01/2023 as evidenced by the signature of the records management assistant on the Memorandum of Appeal which shows that the appeal was instituted on 16/01/2023, the computation of time from 23/11/2023 to 16/01/2024, by arithmetic, it is a total of 54 days out of the prescribed time of 45 days provided by the law. In this regard, the appeal was filed out of time without seeking an extension of time as it is provided under the law. See the cases of Issa Mahamoud Msonga, Appellant vs Zakaria Stanslaus and 2 Others, Civil Appeal No. 21 of 2019 and Mwanaasha Seheye vs. Tanzania Posts Corporation, Civil Appeal No 37 of 2003. In light of the above, I am satisfied that the appeal was time-barred and filed nine days beyond the prescribed period of 45 days provided for under section 80(2) of the Law of Marriage Act, Cap. 29 R.E 2019. Consequently, I dismiss the appeal for lack of merit. Since parties were spouses, I make no order as to costs. Right of .MNYuKWA JUDGE 07/06/2024. Court: Judgment delivered in the presence of the respondent's counsel. M.MNYl/kWA JUDGE 07/06/2024 9