IN THE HIGH COURT OF TANZANIA
(TEMEKE HIGH COURT SUB-REGISTRY)
ONE-STOP JUDICIAL CENTRE
AT TEMEKE
CIVIL APPEAL NO. 23783 OF 2024
INNOCENT WILFRED MAKUNDI........................................... APPELLANT
VERSUS
HAPPINESS PETROPA TARIMO........................................ RESPONDENT
RULING
Date of last order: 05/12/2024
Date of Ruling: 20/12/2024
OMARI, J.
This is a Ruling in respect of a Preliminary Objection raised by the Respondent
herein that the Appeal is time barred in respect of section 80(2) of the Law of
Marriage Act, Cap 29 RE 2019 (the LMA) for being filed in excess of 45 days of
the decision.
Mr. Hosea Chamba who drew and filed the Respondent's submission pointed
out that the judgment of Matrimonial Cause No. 34 of 2023 from which Civil
Appeal No. 23783 originates, was delivered on 09 August, 2024 and the
Memorandum of Appeal was filed in 24 September, 2024 instead cf 23
September, 2024 thus occasioning a one-day delay. Mr. Chamba prayed that
the preliminary objection be upheld and the Appel be dismissed with costs.
When it was his turn, Mr. Mukhtary Hassan Cheche the Appellant's advocate
submitted that the appeal was filed within time. He argued that since the
appeal was filed electronically then it was in court within the specified 45 cays.
He cited the case of Mohammed Hashil v. National Microfinance Bank
Limited(NMB Bank), Labour Revision No. 106 of 2020 [2020] TZHCLD 3789
where this court cited Rule 21 (1) of the Judicature and Application of Laws
(Electronic Filing) Rules 2018 GN. NO. 148 of 2018 which provides that a
document is considered filed if it is submitted through the electronic filing
system before midnight on the date it is submitted, unless specific time is set
by the court or it is rejected. Mr. Cheche explained that the Memorandum of
Appeal was filed on 23 September, 2024 a Control Number was issued and
payment was effected on the same day. Hence the appeal was filed within the
time stipulated by law.
In his rejoinder, Mr. Chamba first rebuked the Appellant's advocate for
including annexures to his submission stating that this violated the principle in
the case of Meishoori Loramatu v. Saigurani Loramalu, Misc. Land
Application No. 60 of 2021 TZHC 9756. Counsel then went on to reiterate what
he had submitted in his submission in chief emphasizing that the eSase
Management System (eCMS) shows the Appeal was filed on 24 September,
2024.
Having gone through the submissions for and against the preliminary obje:tion
I am of the view that there is only one issue for this court's determination; that
is whether the raised preliminary objection has merit and if so what is the way
forward.
The LMA under section 80(2) provides that an appeal to this court has to be
filed within 45 days of the decision or order being appealed against. The
Respondent's counsel is arguing that according to the eCMS the current appeal
was filed on 24 September, 2024 it was filed out of time albeit by a day It is
for that reason that he is seeking the same to be dismissed for violating the
law of limitation.
I have gone through the eCMS digital file of Civil Appeal No. 23783 of 2024
with Reference No.202409241000023783 was submitted and admitted cn 23
September, 2024 and then assigned to a judge on 24 September, /024.
Farfetched and perhaps uncalled for, I went ahead and looked at the receipt
issued for the filing of Civil Appeal No. 23783 in the Digital Case File and the
receipt in the file was issued on 23 September. It would be absurd for the case
to be submitted and admitted on 23 September,2024 and, if the filing fee was
paid for on the same date for the said case be considered to have been filed
on 24 September, 2024. As rightly pointed out by the Appellant's advocete, a
matter is considered to have been filed if it is submitted into the electionic
filing system before midnight on the date it is submitted, unless a specific time
is set by the court or it is rejected. This appeal was submitted and adm tted
into the eCMS on 23 September, 2024 and as it would be it was not rejected.
Consequently, the preliminary objection is without merit and therefore
overruled.
Due to the nature of this matter, I make no order as to costs.
It is so ordered.
A.A. OMARI
JUDGE
20/12/2024
Ruling dated and delivered on 20th December, 2024 in the presence of Hencrick
Matiku who is holding brief for Hosea Chamba the Respondent's advocate with
the Appellant appearing in person.
A.A. OMARI
JUDGE
20/12/2024
