Muzzammil Mussa Kalokola vs Muluu Hamisi Seif (Civil Appeal No. 535 of 2023) [2026] TZCA 470 (4 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. 3.A.. MWAMPASHI., 3.A And ISMAIL.. J.A.) CIVIL APPEAL NO. 535 OF 2023 DR. MUZZAMMIL MUSSA KALOKOLA ....................................... APPELLANT VERSUS MULUU HAMISI S E IF............................................................RESPONDENT [Appeal from the Judgment and Decree of the High Court of Tanzania at Tanga] (Mruma. dated 07th day of February, 2022 in Matrimonial Cause No. 01 of 2019 RULING OF THE COURT 24thApril, & 4th May, 2026 MWAMPASHI. J.A.: The parties' marriage which had survived for about 37 years since 1982, was declared irreparably broken down on 05.03.2020 by the High Court in Matrimonial Cause No. 01 of 2019, which was instituted by Muluu Hamisi Seif, the respondent herein. In that Matrimonial Cause, the respondent had petitioned for divorce and division of matrimonial properties. Divorce was not contested by Dr. Muzzammil Mussa Kalokola, the appellant herein, and for that case, a decree of divorce was instantly issued. The remaining contentious issue and which had to undergo a full trial was on division of matrimonial properties. While it was the appellant's firm stand that there was no property subject to division because the respondent, being a just house wife, had contributed nothing towards the acquisition of the properties , it was the respondent's case that, during the subsistence of the marriage, the parties had jointly acquired a residential house at Usagara, a hotel going by the name of Hotel Kola Prieto situated at India Street, and two plots of land at Usagara East, all within Tanga City. Based on the evidence presented by the parties, the High Court found that, the residential house at Usagara and the Hotel Kola Prieto had been acquired by the parties' joint efforts. Consequently, the two properties were ordered to be sold by public auction and the proceeds to be divided to the appellant and respondent at the ratio of 70%:30%. Alternatively, it was ordered that, the two properties be evaluated by a certified Government valuer with an option to either of the parties to compensate the other on the given ratio. The decision of the High Court on the issue of division of matrimonial properties which is contained in a 14-pages judgment, displeased the appellant. In challenging the decision, the appellant has preferred the instant appeal before the Court armed with 99 grounds of appeal in a 77- page memorandum of appeal. Most of the grounds have sub-grounds some of which contain up to 50 sub-grounds. In some of the grounds of appeal, citations from the Quran in Arabic language are inserted. In support of the appeal and in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the appellant had, on 29.12.2023, filed 649-page written submissions. Having in mind the style adopted in the memorandum of appeal fashioned in the above stated manner, when the appeal was called on before us for hearing and before the hearing of the appeal could commence, we invited the parties to address us not only on the propriety or otherwise of the memorandum of appeal but also on the ultimate competence of the appeal. In addition, we took the parties to the notice of appeal appearing at page 486 of the record of appeal and directed them to address us on whether the same was served on the respondent, if not, what were the consequences. The appellant appeared in person unrepresented. He fended for himself and being a lay person, did not see any problem with the memorandum of appeal. He, however, hesitatingly acknowledged that, having failed to locate the whereabouts of the respondent and her advocate, he did not serve the notice of appeal on the respondent. That notwithstanding, he took refuge in the overriding objective principle. He urged us to invoke the said principle and focus on substantive justice rather than heeding the technicalities. He implored upon us to determine the appeal on merit insisting that, the improprieties in the memorandum of appeal are minor and insignificant. On his part, Mr. John Seka, learned advocate for the respondent, readily conceded that, the memorandum of the appeal is not in the format prescribed in Form "F" made under rule 93 of the Rules hence, rendering the appeal incompetent. He also contended that, even the failure by the appellant to serve the respondent with the notice of appeal has the effect of rendering the appeal incompetent. Nonetheless, he joined hands with the appellant that, we should proceed with the determination of the appeal on its merit. He argued that, taking into account that, this is a protracted matter involving a single and simple issue on division of matrimonial properties, the ailments in the memorandum of appeal and failure to serve the notice of appeal can be disregarded to pave way for the appeal to be heard and determined on its merit. From the brief submissions made by the appellant and Mr. Seka, the issue calling for our determination is whether this is a fit case for the invocation of the overriding objective principle. However, before we go into the determination of that issue, we should make it clear that, the 77- pages' memorandum of appeal which as we have alluded to earlier, is comprised of 99 grounds of appeal, is narrative, argumentative, repetitive and verbose. It is a blatantly clear violation of rule 93 (1) and (3) of the Rules, under which it is provided that: "93, -(1) A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds o fobjection to the decision appealed against, specifying the points which are aiieged to have been wrongly decided, and the nature of the order which it is proposed to aske the Court to make. ( 2 )... (3) A memorandum of appeal shali be substantially in the Form F in the First Schedule of these Rules and signed by or on behalf o f the appellant" As we have alluded to above, the memorandum of appeal is in contravention of the law for being unnecessarily argumentative, repetitive, narrative and verbose. For instance, ground 95 has 24 sub* grounds, ground 97 has 29 sub-grounds and ground 98 has 50 sub grounds covering 17 pages from page 50 to 67 of the record of appeal. While the law requires that, grounds of appeal should be against specific points allegedly wrongly decided by a lower court, it is not the case in the memorandum of appeal at hand. It is like every sentence in the 14-pages impugned judgment has formed a distinct ground of appeal hence the 99 grounds of appeal. Further, contrary to the law, ground 99 of the appeal covering 12 pages from page 67 to 78 of the record of appeal, seeks for 50 declaratory orders. As a demonstration of how the grounds of appeal are narrative, repetitive and argumentative, grounds 40,41,42,43 and 44 of the appeal as appearing at page 10 of the record of appeal, are hereunder reproduced for that purpose: 40. The learned Judge erred in law by failing to perceive that in iaw, marriage does not operate to prevent a husband from acquiring any property owned separately to the exclusion o f the spouse. Thus the learned Judge erred in iaw by failing to perceive that in iaw, the Respondent (herein the appellant) had the right to acquire and develop family assets in the exclusion of his spouse pursuant to Sec.59 o f the Law o f the Marriage Act, Cap. 29 R.E. 2019 with intendedpurpose for continuing provisions for maintenance o f his wife and their children during theirjoint lives, and used for the benefit o f the family as a whole. 41. The learned Judge erred in law by failing to perceive that no law shall be construed to affect the validity o f the right of occupancy o f the Respondent's properties (herein the Appellant) granted and registered in the name o f the Respondent (herein the Appellantj exclusively on such basis of marriage. 42. The learned Judge erred in iaw by failing to uphold the law that, it is not written into section 114 o f the Law o f Marriage Act, Cap. 29 R.E. 2019 or any other law in force that a wife's material status and duties should per se make her a partner in the husband's economic enterprises or organ. 43. The learned Judge erred in law and fact by failing to comprehend the appropriate interpretation that a matrimonial home, that is, any house which the husband and wife cohabits regardless the owner, whereas a matrimonialproperty is a property ownedjointly subject to joint contribution towards acquiring and development by a man together with his wife. 44. Worse more the learned Judge erred in law and fact by failing to comprehend that what constitutes matrimonial assets means the same thing as what is otherwise described as family assets, expressing an important concept that it refers to those things with the intension that there should be continuing provisions for maintenance of his wife and their children during theirjoint lives, and used for the benefit of the family as a whole. Thus, the leaned Judge erred in law and fact by failing to comprehend that a family assets (matrimonial asset) implied by Sec. 114 (1) of the Law o f the Marriage Act, Cap. 29 R.E. 2019 can be owned separately by the husband in the exclusion o fhis spouse pursuantSec. 59 o f the LMA. Apart from the memorandum of appeal being in contravention of rule 93 (1) of the Rules as demonstrated above, some of the grounds therein contain citations of Quaran in Arabic language. This is in contravention of rule 5 of the Rules which provides that, the language of the Court shall be either English or Kiswahili. The memorandum of appeal is also not in the Form "F" as required by rule 93 (3) of the Rules. A glaring defect in the format is at the top page of the memorandum of appeal appearing at page 3 of the record of appeal. Before the list of grounds of appeal and below the heading reading "Memorandum of Appeal/' words to the effect that ...... the above-named appellant appeals to the Court o f Appeal of Tanzania against the whole/part of the above-mentioned decision on the following grounds, namely-" which are required to precede the list of grounds of appeal, have been omitted. For the above given reasons, we are satisfied that the memorandum of appeal is improper and deficient. It is in contravention of rule 93 (1) and (3) of the Rules, which mandatorily requires a memorandum of appeal to be concise and not argumentative, repetitive, verbose or narrative. See- Mweha Hamis v. The Permanent Secretary, Ministry of Infrastructure Development & 2 Others [2024] TZCA 141. A memorandum of appeal is also required to be in Form F in the First Schedule to the Rules, which is not the case to the memorandum of appeal at hand. Regarding the notice of appeal reflected at page 486 of the record of appeal, it is common ground that, the same was not served on the respondent as mandatorily required by rule 84 (1) of the Rules, It is also 8 settled that, failure to serve a notice of appeal in terms of rule 84 (1) of the Rules/ is a fatal irregularity rendering an appeal incompetent liable to be struck out. See- Alexander Leonard Nziku v. National Bank of Commerce Limited & Another [2018] TZCA 400, Bank of India (Tanzania) Limited v. Y.P. Road Haulage Limited & 2 Others [2021] TZCA 461 and Gideon Wasonga & 3 Others v. The Attorney General & 2 others [2021] TZCA 3534, to mention but a few. Having satisfied ourselves that, the improper and deficient memorandum of appeal and failure to serve the notice of appeal on the respondent render the appeal incompetent and liable to be struck out, let us now turn to the issue on whether, despite the above ailments rendering the appeal incompetent, the overriding objective principle can be invoked by disregarding the ailments and proceeding to the hearing and determination of the appeal on its merit as suggested by the appellant and Mr. Seka. With due respect to the appellant and Mr. Seka and without beating around the bush, we do not agree with them that, this is a fit case for the invocation of the overriding objective principle. The principle was not introduced to annul or render the law ineffective. It does not confer jurisdiction on the Court to disregard the mandatory provisions of the law. The applicability of the principle was well explained by the Court in 9 Mondorosi Village Council & Others v. Tanzania Breweries Limited & Others [2018] TZCA 303, thus: " Regarding the overriding objective principle, we are of the considered view Wat die same cannot be appiied biindiy against the mandatory provisions o f the procedural (aw, which go to the very foundation o f the case. This can be g,leaned from the objects and reasons o f introducing the principle under section 3 o f the Appellate Jurisdiction Act [CAP. 141 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) (No. 3) Act No. 8 o f2018, which enjoins the courts to do away with technicalities and instead, should determine casesjustly. According to the Bill to the amending Act, it was said thus: 'The proposed amendments are not designed to blindly disregard the rules of procedure that are couched in mandatory terms...". See also Njake Enterprises Limited v. Blue Rock Limited & Another [2018] TZCA 304 and SGS Societe Generate De Surveillance SA & 7 Others v. VIP Engineering and Marketing Limited [2026] TZCA 315. The memorandum of appeal being violative of the mandatory provisions under rule 93 (1) and (3) of the Rules and the appellant's failure to serve the notice of appeal on the respondent in terms of rule 84 (1) of 10 the Rules, are both fatal shortcomings rendering the appeal incompetent The ailments are in violation of mandatory provisions of the law which go to the foundation of the appeal to which the Court cannot turn a blind eye by invoking the overriding objective principle. For the above given reasons, we hereby strike out the appeal for being incompetent. Given the nature of the matter, no order as for costs is made. DATED at DODOMA this 4th day of May, 2026. Ruling delivered Virtually this 4th day of May, 2026 in the presence of appellant in person and Mr. John Seka, learned counsel for the respondent and Mr. Shafii Kassim, Court Clerk; Court is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL