20071210 TZHC Dar es Salaam

• ; > . .. ,. , . ~~ ..- -(if~;;~~~ ... .. -~ -·_- .-- - _l '• C IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 89 OF 2006 (Originating from Ila/a District Court in Matrimonial Cause No. 24 of 2007 before Mlawa, RM) ZULFIKAR TAJDIN KASSAM ....... . APPELLANT VERSUS ARZlNA-ZUlFI-KA-R-T-AJ.DlNJ<AS.SAM ... DEFENDANT Date of last order- 9/11/2007 Date of Judgment- 10/12/2007 EXPARTE RULING Shangwa, J. On 22 nd May, 2007 counsel for the Appellant Messrs Rwabutaza and Company, Advocates lodged a Memorandum of Appeal against _the decision of the District Court of Ilala which was delivered on 11 th January, 2007 in Matrimonial Cause No. 24 of 2004. On 17th September, 2007, Counsel for the Respondent Messrs R~tabin.gwa· ·and Company, Advocates filed- a notice 2 of preliminary objection stating that the Appellant's appeal is time barred. On 10th October, 2007, counsel for the Appellant petitioned this court for extension of time to appeal against the decision of the District Court of Ilala in Matrimonial Cause No. 24 of 2004. This petition was withdrawn by -- Counsel for the Appellant on 16th October, 2007, and it was___________ _ so marked. Hearing of the preliminary objection raised by Counsel for the Respondent was fixed on 2nd November, 2007. On the said date, Counsel for the Appellant did not turn up. The court ordered that the preliminary objection should be argued exparte the Appellant by way of written submission. The said submissions were filed by Counsel for the Respondent on 8th November, 2007 as ordered by the Court. In their written submissions, counsel for the Respondent submitted that as the judgment of the District j ., 3 ' Court of Ilala in Matrimonial Cause No. 24 of 2004 was delivered on 11 th January 2007, the Appellant's appeal against it which was filed on 22 nd May, 2007 was filed out of time. He argued that any person who is aggrieved by any decision or order of the Magistrates' court in a matrimonial proceeding has to appeal to the High Court within forty five - - - ---- -- days of the decision or order agalffsfwhitn--tt,e--appeal--is---- - - ----- - brought. He referred the Court to Section 80 (1) read together with Section 80 (2) of the Law of Marriage Act 1971 which provide as follows: ''S. 80 (1) Any person aggrieved by any decision or order of a Magistrate's Court in a matrimonial proceeding may appeal to the High Court'~ ''S. 80 (2) An appeal to the High Court shall be filed in the magistrate's court within forty 4 five days of the decision or order against which the appeal is brought'~ In concluding their submissions, Counsel for the Respondent prayed the court to dismiss the appeal for being time barred or strike it out. -- --c-- --- ----- - - - -Frern- -the--abov_e_ quot~d__provisions of law, it is clear _, ------------. - ----- that the Appellant was supposed to file his appeal against Matrimonial Cause No. 24 of 2004 within forty five days from the date when the judgment in Matrimonial Cause No. 21 of 2004 was delivered. As correctly pointed out by Counsel for the Respondent, the judgment was delivered on 11 th January, 2007 and the appeal was filed on 22 nd May, 2007. It is clear therefore that the Appeal was filed out of the statutory period within which it had to be filed. Now, as the Appeal was filed out of time and as no extension of time within which to file the same was applied for and granted by ~ 5 this Court before it was filed, I hereby strike it out with costs. A. Shangwa JUDGE 10/12/2007 Delivered in- open court this 10th day of December, in the- -- --- --~ - presence of Mr. Rutabingwa for the Respondent. JUDGE 10/12/2007