PROSPER JUDEX

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA-SUB REGISTRY AT BUKOBA CIVIL APPEAL NO. 2667 OF 2024 (Arising from Biharamulo District Court in Miscellaneous Civil Application No. 3 of 2023 and original Matrimonial Cause No. 7 of 2022 at Biharamulo Urban Primary Court) PROSPER JUDEX RWECHUNGURA......... ............................ APPELLANT VERSUS DIANA OYOO ACHIENG.................................................. RESPONDENT JUDGMENT 6th September & 21st October 2024 KIWONDE, J. Before Biharamulo District Court, the appellant filed an application, Miscellaneous Civil Application No. 3 of 2023 praying for an order for extension of time to file an appeal out of time to challenge the judgment and orders in Matrimonial Cause No. 7 of 2022. Upon hearing the application, it was held that the applicant failed to advance sufficient or reasonable cause for his delay. As a.result, his application was dismissed. Aggrieved by the decision, the appellant filed the present appeal armed with four (4) grounds of appeal as follows: 1) That the District Court erred in law for failing to realize that there was neither customary nor statutory marriage between the parties. i 2) That the subordinate courts misdirected themselves in law. The trial court proceeded ex parte in Matrimonial Cause No. 7 of 2021 at Biharamulo Urban Primary Court to order breakdown of marriage. The appellant was never served with the summons from Biharamulo Primary Court. The appellant works for gain in Serengeti. He is employed by TANAPA. He was condemned unheard. The 1st appellate court never took notice that the trial court offended the principle of natural justice. 3) That the subordinate courts made a non-direction in law by wrongly proceeding to distribute the properties that are neither matrimonial ones nor did the respondent make any contribution. The 1st appellate court never evaluated the evidence and found no illegality committed by the trial court. 4) That the subordinate courts grossly and ordered maintenance costs of 150,000/= while the purported minors were never brought in court. There is a text message that one of the minors is dead and the other is of a different father. The 1st appellate court refused to 2 grant extension of time while there was appealable legal point. During hearing of this appeal, the appellant was represented by Mr. Eliphazi Bengesi learned advocate while the respondent appeared in person. When invited to submit in support of the appeal, Mr. Eliphazi Bengesi submitted that, the appellant failed to file an appeal in time because he was lately supplied with the copy of the judgment as he was attending medical treatment at Kagondo and Bukoba Regional Referral hospitals. On the first ground of appeal, Mr. Bengesi submitted that the District Court erred in law by refusing to grant extension of time while there was legal problem in the trial court proceedings. He submitted that the trial court erred in law by dissolving the marriage while there was no legal marriage between the parties. Also, the counsel further submitted that the appellant was never summoned to appear before the court; as a result, the matter proceeded ex parte against him. According to him the appellant was deprived of his right to be heard. Apart from that he learned counsel argued that the properties which were distributed between the parties while the appellant was not given time to 3 testify if they exist. He was of the view that even the maintenance of children was ordered ex parte. He said that the District Court would have used these facts to grant the appellant extension of time to file an appeal out of time. He therefore prayed this appeal to be allowed. In reply to the submissions in-chief, the respondent submitted that the appellant did not attend before the court, instead, he was sending his relative but the judgment was delivered in his presence. She submitted that the appellant brought the medical chit on the date of judgment and the court rejected it. He did not tender any exhibits to prove that he was sick that is why he was not granted extension of time. Concerning the issue of marriage, she submitted that the primary court was satisfied that marriage existed. She emphasized that the appellant does not provide maintenance for his children almost two years now. There were no rejoinder submissions. From the subordinate court records and the submissions from both parties, the issue for determination is whether this appeal is meritorious. In making a close look at the grounds of appeal, it seems the counsel for the appellant is challenging the merits of the case decided by the trial court. But in actual sense, the appellant is appealing against the ruling of the District Court of Biharamulo which refused to grant an order for 4 extension of time to appeal out of time. There is no appeal against the decision of the trial primary court. However, during hearing of this appeal, the counsel tried to raise elements of illegality. This was not raised in the District court. The appellant relied on two reasons for delay to appeal within time. He said he was supplied with the copy of judgment very late and that he was sick. The district court found these not proved. But illegality can be entertained by this court since it is a point of law. The general principle is that matters not raised and determined by the subordinate court cannot be dealt with by the appellate court unless it is a point of law. In Hood Transport Co. Ltd Versus East African Development Bank, Civil Appeal No. 262 of 2022 [2024] TZCA 73 (20th February 2024) TanzLii, the court stated that matters not canvassed or determined by the trial court cannot be raised on appeal unless they are matters of law. In this appeal, illegality alleged is in three terms. First, violation of principle of natural justice as the appellant was not given the right to be heard before the trial court. Second, that it was wrong for the trial court to dissolve the marriage which did not exist in law. Third, that the trial court ordered division of matrimonial assets which the parties do not have 5 and the order of maintenance of children while one issue is said to be dead and the other belongs to another man. In law, once illegality has been raised and it is apparent on the face of records, it is a sufficient reason for extension of time to allow the applicant to appeal out of time to cure such illegality. This position was stated in the case of Attorney General Versus Tanzania Ports Authority & Another, Civil Application No. 87 of 2016 [2016] TZCA 897 (12th October 2016) TanzLii where the Court of Appeal held inter alia that: "It is a settled law that a claim of illegality in an impugned decision constitutes sufficient reason for extension of time regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay". Besides that, in Stephen B. K. Mhauka Versus The District Executive Director Morogoro District Council and 2 others, Civil Application No. 104 of 2017 [2018] TZCA 103 (15th May 2018) TanzLii, it was held that the illegality alleged to exist has to be apparent on the face of records. 6 In the appeal at hand, the trial court records show that truly, at first, the case was heard ex parte against the appellant but later on, he filed an application to set aside the ex parte judgment. The trial court found that there was sufficient reason and the said ex parte judgment was set aside on 20th February 2023. From there, the case was ordered to be heard inter partes and he was given the right to be heard; he defended his case and at the end, the judgment was handed down. However, after setting aside the ex parte decision, the case proceeded to the defence. The trial court merely read and explained the evidence of the petitioner (now the respondent) to the appellant. It is thus, obvious that the appellant was deprived of his right to cross-examine the witnesses (Petitioner) (PW1) and her witness, Lydia Ayoo (PW2). Therefore, the ground of illegality that the appellant was deprived of his right to be heard finds merits. This is a sufficient reason which the District court ought to have found and grant an order for extension of time to the appellant. For that matter, this appeal finds merit and it is hereby allowed. The ruling of the District court dated 1st January 2024 which refused extension of time is hereby quashed and any subsequent orders thereto are set aside. 7 The appellant is availed with fourteen (14) days from the date of this judgment to lodge his appeal to the District Court. It is so ordered. JUDGE 21.10.2024 Court: Judgment is delivered in chamber in the presence of the respondent in person and Grace Mutoka but in the absence of the appellant this 21st October 2024 and the right of further appeal is explained. F. H. k: JUDGE 21.10.2024 8