Autaufoo Onael Silaa vs Neema Amon (Civil Appeal No. 1141 of 2025) [2026] TZCA 468 (30 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCOR AM: KEREFU. J.A., MWAMPASHI, 3.A. And ISM AIL J .A J CIVIL APPEAL NO. 1141 OF 2025 AUTAUFOO ONAEL SI LAA .......... ......................................................... APPELLANT VERSUS NEEMA A M O N ................................... .................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke One Stop Judicial Centre at Dar es Salaam) (Barthv, 3.1 dated the 13th day of May, 2025 in Civil Appeal No. 2995 of 2025 JUDGMENT OF THE COURT 151 1 ’ & 30* April, 2026 ISMAIL J.A.: The parties herein are erstwhile love birds whose blossoming life in intimacy was, we believe, expectedly enjoyable. Midway through the marriage life, a 'whirlwind' swept and placed the intimacy at a low ebb. Unable to weather the storm, differences of an irreconcilable proportion cripped in. Their differences took a new ugly turn when the respondent instituted matrimonial proceedings, PC Matrimonial Cause No. 93 of 2017, in the Primary Court of Kimara, in Kinondoni District. These proceedings were conducted ex-parte and concluded in the respondent's favour, the petitioner in the said matter. 1 Subsequently, the appellant instituted an application to set aside the ex-parte decree but the same fell through. The trial court took the view that, besides other reasons, a delay of 950 days had not been accounted for. Irked by the decision, the appellant took a scale up, by instituting an appeal in the District Delegate Court at Temeke One Stop Judicial Centre (1st appellate court). His appeal partly succeeded as the 1st appellate court granted him 21 days within which to file an application for setting aside the ex-parte decree. This decision was in sour taste to the respondent who swiftly moved to the High Court on a six-point-memorandum of appeal. The contest in the said appeal was settled on ground 3 of the petition of appeal. The learned Judge took the view that, the appeal to the 1st appellate court was time barred and, therefore, incompetent. In arriving at the conclusion, the learned Judge reasoned as follows: "Upon exam ining the record o f the first appellate court, it is evident that the appeal was o fficially file d on 16th May, 2018. Although, the respondent subm itted a petition o f appeal bearing a court seal dated 21st March, 2024, this stam p was from the Prim ary Court o f Kim ara and not from the D istrict Court o f Temeke a t the One Stop Justice Centre, where the appeal ought to have been lodged. The respondents counsel also claim ed that the appeal could not be filed electronically due to technical lim itations and was therefore Hied m anually. However, no proof o f this was furnished when the appeal was subsequently file d through the e-CMS system. Given that the court has abolished the m anual filin g o f case records, section 24 (5) o f the Judicature and Application o f Laws (Electronic Filing) Rules, Cap. 358, provides guidance in situations where parties encounter difficulties in electronic filing. The provision stipulates that any person who experiences such d ifficu lties m ust prom ptly notify the Registrar or M agistrate in charge who w ill issue the le tte r or affidavit as the proof. In the present m atter, however, the record reveals no adherence to the said procedure, nor is there any supporting affidavit from the M agistrate in Charge (o f the D istrict Court in this m atter) or Deputy Registrar to confirm that electronic filing was not possible. This om ission is m aterial, as com pliance with the procedure m andatory where a party seeks to rely on filing-related challenges as justification fo r any procedural lapse leading to delay." [Emphasis is added]. In the end, the said appeal was dismissed. It is this decision that enraged the appellant hence his decision to institute the instant appeal to this Court. The memorandum of appeal has five grounds of appeal, coined as follows: 1. That, the High Court Judge erred in law and fact in acting upon the memorandum o f appeal based on defective low er court judgm ent and decree whose dates did not tally. 2. That, the High Court Judge erred in law and fact in acting upon the appeal where it was so uncertain as to what specific position or capacity were the parties appearing before the low er court. 3. That, the High Court Judge erred in law and fact in finding and deciding that the appeal before the court was tim e barred. 4. That, the High Court Judge erred in law and fact in asking fo r p ro of o f facts from the appellant which were technical hitches more known to and in fact created by the court than the appellant. 5. That, the High Court Judge erred in law and fact in entertaining a ground o f appeal based on what was not decided in the low er court. Hearing of the appeal saw the appellant enlist the services of Mr. Amin Mohamed Mshana, learned counsel, while his counterpart, Mr. Johnstone Fulgence, learned advocate, featured for the respondent. Mr. Mshana, who filed written submissions consistent with section 106 (1) of the Tanzania Court of Appeal Rules, 2009, took the floor and prayed to adopt them, before he briefly highlighted what he submitted in writing. He began by informing the Court that he was abandoning ground 5 of the grounds of appeal. With respect to ground one, Mr. Mshana's contention was that there is variance in the years in which the decree and the judgment were issued. Whereas the judgment is said to be dated 6th January, 2025, the decree extracted from the judgment indicates that the same was issued on 6th January, 2024. In his contention, this anomaly was a contravention of Orders XX rule 7 and XXXIX rule 35 (1) of the Civil Procedure Code, Cap. 33 R.E. 2023. The learned counsel argued that conformity with this requirement is imperative as the word used is "shall", meaning that compliance with it is not a matter of choice. Mr. Mshana contended that, the omission to conform to the requirements of the law constituted a serious violation which cannot be cured, and he implored us to go along with the reasoning of the Court in Ramadhani A. Kidagaa v. Mayasa Abdallah & Another [2009] TZCA 214, and Tanzania Revenue Authority v. Njake Enterprises Ltd, Civil Case No. 122 of 2004 (unreported). In the learned counsel's contention, on 5 that basis, the appeal to the 1st appellate court ought not to have been entertained as it was incompetent. The gravamen of the appellant's complaint in ground two is that, there was a misdescription of parties to the appeal from which the impugned judgment arose. He invited us to cast our eyes on page 10 of the record of appeal at which the current respondent has descriptions of complainant/appellant/applicant/plaintiff, whereas the current appellant, then the respondent, is described as respondent/defendant without crossing-off the irrelevant or inapplicable descriptions. He urged us to consider the misdescription as an incurable defect that had an adverse bearing on the appeal. In his submissions on grounds three and four which were argued conjointly, Mr. Mshana began by conceding to the fact that the old manual filing system ceased to be operational after the passage of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 (the Electronic Filing Rules). He was quick to contend, however, that, upon failure to effect a physical filing in the District Court, resort had to be made to the Primary Court where physical filing is an allowable practice. Mr. Mshana argued that, in the instant matter, the said appeal was filed barely four days after the date of the decision and that, all necessary filing fees were paid accordingly. 6 He, in consequence, urged us to allow the appeal. Mr. Fulgence's submissions followed the sequence adopted by his counterpart. On ground one, the learned counsel was of the firm contention that, though the anomaly is apparent, the same of is a trifling effect, unable to invalidate the judgment. He contended that, the Court can remedy it by ordering a rectification by the High Court. Regarding ground two, Mr. Fulgence contended that, what appears in the heading of the judgment is a standard template that leaves the parties to choose their designation. While acknowledging that choices were not made, he avidly contended that the omission did not affect the content, terming it a minor, curable error. In his submission on grounds three and four, the learned counsel was of the contention that, rule 20 (3) of the Electronic Filing Rules provides a procedure to be adopted when physical filing is preferred. Mr. Fulgence argued that, whilst in some special circumstances physical filing may be preferred, such preference can only be done where an exemption is given by Registrar of the High Court or magistrate in-charge of a District Court. He contended that, none of the two granted an exemption to allow the appellant to institute the appeal physically. He leapt to the defence of the learned High Court Judge who faulted the steps taken by the appellant and her eventual finding that the appeal was time barred. Having gone through the submissions and after leafing through the record of appeal, we propose to begin the disposal by addressing grounds three and four of the appeal. The crucial question for our determination is whether the filing of the appeal in the District Court was flawed and, if so, whether the High Court was right in adjudging the appeal time-barred. As both counsel argued in unison, the advent of the Electronic Filing Rules consigned the physical filing of pleadings and all other court documents to the dustbin of oblivion, except in few exceptional circumstances. These circumstances are catered for under rule 20 which, for ease of reference, it behoves us to reproduce its substance, as hereunder: "(1) The registrar or a m agistrate in-charge m ay upon an ora1 application by a party, h is advocate or h is authorized representative, exem pt a party from filin g electronically o f the whole or p art o f the pleadings or docum ents where: (a) electronic filin g is, for reasons to be explained In the application, not feasible; (b) there are concerns about confidentiality and protection o f privacy; 8 (c) the docum ent cannot be scanned or file d electronically because o f its size, shape or condition; (d) d ie electronic filin g system i.e. either inaccessible or not available; or (e) where for another reason it is deem ed sufficient to warrant the exem ption. (2) Where the Registrar or m agistrate in-charge [is ] satisfied that there was good cause fo r exem ption, he sh all grant the request under sub-rule (1) in w riting." What comes out, as Mr. Fulgence rightly contended, is that, a physical or manual filing of pleadings, including petitions of appeal, which is not exempted by the Registrar or magistrate in-charge is discrepant, and the net effect of it is, it is as if nothing was filed at all. This position was underscored by this Court in Mwasa Security Limited v. MW Rice Millers Limited [2025] TZCA 637, wherein the Court held that the appeal filed in flagrant violation of the Rules was incompetent. In particular, the Court guided as follows: "...It is true that som etim es technical problem s do happen in the system hindering electronic filing, but we are confident to state that, the law provides fo r a d ear procedure which the respondent ought to have follow ed before filin g the appeal m anually, which she did n ot I f a t a ll there was a technical problem on 2^fn February, 2022 or rrom t-eoruary uo March as stated by the High court, the rem edy was not to resort to the Court Record Manager's advice, but to seek exem ption from the Registrar. A fter ail, there was no p ro of that the said Manager was directed by the Registrar to allow m anual filin g o f the appeal.,,." Worth of note is the fact that, in the cited case, powers of exemption, whose invocation was spurned by the appellant, were bestowed on the Registrar of the High Court because the filing was intended to be done in the High Court. In the instant matter, such powers rested in the hands of the Magistrate-in-charge of the District Court in which the appeal from the Primary Court was to be lodged. We entertain no doubt, therefore, that the filing that Mr. Mshana considered to have been properly done was, despite all the good intentions, fraught with serious irregularities which rendered it untenable. It is no wonder that when it was finally done, the respondent considered it to be time barred. We are of the considered view that the learned High Court Judge's reasoning and conclusion on the matter were properly grounded, and we find nothing faulty in that finding. It is a decision which rhymes well with what we decided in Mwasa Security Limited (supra) in which the appeal failed the competence test and fell through. This is the fate that must also befall the instant appeal. We, in consequence, find this ground of appeal hollow and we dismiss it. On these two grounds alone, we hold that the appeal is destitute of merit and we dismiss it. Having disposed of the appeal through the two grounds, we find no reason to dwell on the rest of the grounds. We make no order as to costs. DATED at DODOMA this 30th day of April, 2026. Judgment delivered virtually this 30th day of April, 2026 in the presence of Mr. Amin Mohamed Mshana, learned counsel for the appellant, Mr. Johnstone Fulgence, learned counsel for the respondent, and Mr. Shafii Kassim, Court Clerk, 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 li