lazaro arusha lori vs elinkunde solomoni 2024 tzhc 386 9 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI PC. CIVIL APPEAL NO. 3 OF 2023 (Arising from Civil Appeal No. 2 of 2023 District Court of Hanang' Original Matrimonial Cause No. 2 of 2023 Hanang' Primary Court). LAZARO ARUSHA LORI........................................................... APPELLANT VERSUS ELINKUNDE SOLOMONI..................................................... RESPONDENT Date of last order: 07/02/2024 Date of Judgement: 09/02/2024 JUDGEMENT MAGOIGA, J. The appellant and the respondent were happily married couples having contracted a Christian marriage in 2004 at Endasak in Manyara region. Their marriage was blessed with three issues aged 19 years, 16 years and 7 years respectively. They also acquired several assets although the extent of contribution by each spouse has been at issue. The happily marriage later went sour as the respondent alleged that the appellant threatened to kill her. The respondent also claimed that the appellant had extra marital affairs with many women. To this, she petitioned i for divorce as well as division of matrimonial assets before Katesh Primary Court (hereinafter referred to as the trial court.) After hearing the parties, the trial court was satisfied that the marriage between the parties was irreparably broken down, hence, granted divorce. The trial court also ordered division of the matrimonial assets. As to the issues of marriage, the trial court ordered that it was the appellant's duty to provide for maintenance. As to the issue below the age of seven years was placed under the custody of the respondent. The appellant was aggrieved with the trial's court decision hence he lodged an appeal before the District Court of Hanang' (hereinafter referred to as the first appellate court). After hearing the parties, the first appellate court partly allowed the appeal as it ordered the two houses jointly acquired between the parties be equally divided to the extent that each party to have one house instead of division in terms of rooms as done by the trial court. Daunted and still aggrieved with the decision of the first appellate court, the appellant preferred the instant appeal with two grounds of appeal which I will not reproduce them here for the reason that will be made apparently Jjj shortly. 2 In this appeal Messrs. Pascal Peter and Kuwengwa Ndonjekwa, learned advocates represented the appellant and respondent respectively. It is on record that this court ordered the appeal be disposed of by way of written submissions the order which was duly complied with by the parties. However, in his reply submission the learned advocate for the respondent raised a legal concern that there was no evidence tendered before the trial court that the matter was referred to the marriage conciliation board. On that mishap, the learned advocate for the respondent, implored this court to find that, the whole trial was a nullity and proceed to nullify the proceedings, judgement of both the trial court and first appellate court. The appellant had chance to respond to the legal concern raised by respondent in his rejoinder submission. He argued that there was no complaint raised by the respondent before the trial court regarding failure to refer the matter to the marriage conciliation board. He therefore urged the court to ignore the respondent's claims. As matter of practice and procedure, I have to determine this legal point before going into the merits of the appeal. If it stands, the matter will put into rest but if it fails, will consider the merits of the appeal. 3 Having considered the legal concern raised by the respondent, it is also on record that the similar complaint was raised before the first appellate court. In determining the said issue, the learned first appellate magistrate was of the view that there is a certificate issued by Marriage Reconciliation Board. The learned first appellate magistrate while readily admitted there was nowhere the said certificate was tendered as evidence but he went ahead overruling it for the reason that none of the parties disputed the same or denied to have attended the Marriage Reconciliation Board. I wish to point out that, jurisdiction of the Primary Court in matrimonial proceedings is derived from two pieces of legislation, namely the Magistrates' Courts Act, [Cap. 11 RE 2019] (the MCA) and the Law of Marriage Act (hereinafter referred to as the LMA). Section 18(1) of the MCA gives power to the Primary Court to determine matrimonial proceedings. The said section provides that: - ”18 (1) A primary court shall have and exercise jurisdiction - (a) In all proceedings o fa civil nature - (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall 4 have jurisdiction in any proceedings of a civil nature relating to land; (ii) (ii) NA (Hi) (Hi) NA (b) In all matrimonial proceedings in the manner prescribed under the Law of Marriage Act" In addition, section 76 of the LMA vests concurrent jurisdiction in matrimonial proceedings to the Primary, District and High Courts. The said section states that: - "Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court o fa resident magistrate, a district court and a primary court" In terms of the above provisions, there is no doubt that the Primary Court, the District Court and the High Court all have original jurisdiction to entertain a matrimonial proceeding. However, in terms of section 101 of the LMA for a petition for divorce to be entertained by any court, a matrimonial dispute should first be referred to a Marriage Conciliation Board and such Board certify that it had failed to reconcile the parties. For purposes of clarity, section 101 of the LMA reads thus; No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties: [Emphasis added] There are, however, instances on which the requirements of section 101 of the LMA may be dispensed with. For instance, in the case of Mariam Tumbo v Harold Tumbo [1983] TLR 293 this court succinctly pointed out reference to the marriage conciliation board may be dispensed with where there are extra ordinary circumstances that makes reference impracticable. Consider for instance the whereabouts of one spouse are unknown. In the instant matter, while the first appellate court was satisfied that nowhere it is indicated that the certificate from marriage conciliation board was tendered as evidence it went ahead stating that none of the parties disputed or denied to have attended the marriage conciliation board. With respect, in absence of proof that the certificate from the marriage conciliation board was tendered as evidence before the trial court then 6 provisions of section 101 of the LMA were not complied with. Even if parties did not dispute its existence, that by itself did not cloth the trial court with jurisdiction to entertain the matter. I have keenly gone through the trial court's record, indeed just as pointed out by the first appellate court, there is what appears to be certificate from Marriage Reconciliation Board, but the said certificate was not attached in the petition filed before the trial court, rather it is found separate with other exhibits tendered. Nowhere it is shown how the same found its way to the record as neither party tendered it as an exhibit nor was it attached with petition form. In the case of Yohana Balole v Anna Benjamini Malongo Civil Appeal No. 18 of 2020 Court of Appeal of Tanzania at Bukoba (unreported) in which the court facing an akin situation, observed that certificate from the marriage conciliation board ought to be part of the record and must be tendered in evidence as an exhibit. Hence, in totality, since there was no proof tendered before the trial court to establish that the matter was referred before the marriage conciliation board, the trial court lacked jurisdiction to entertain the matter. This was succinctly pointed out in the case of Hassani Ally Sandali v Asha Ally Civil Appeal No. 246 of 2019 (unreported) which was quoted with approval in the case of Yohana Balole v Anna Benjamini Malongo (supra). The court observed thus; "...the granting of the divorce... was subject to compliance with section 101 of the Act. That section prohibits the institution of a petition for divorce unless a matrimonial dispute has been referred to the board and such board certifying that it has failed to reconcile the parties. That means that compliance with section 101 of the Act is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable to refer a dispute to the board as provided for under section 101 (f) of the Act..." Therefore, I am of the settled view there was no valid certificate from marriage conciliation board that was tendered before the trial court. With this omission the trial court had no jurisdiction to entertain the matter as provided for under section 101 of the LMA. 8 In the case of Yohana Balole v Anna Benjamini Malongo (supra) the court proceeded to nullify the decisions of the lower courts as there was no certificate from the marriage conciliation board. Consequently, I subscribe to that position taken in the referred case and proceed to quash and set aside the proceedings and decision of the trial court for it acted without jurisdiction. Equally, the decision and proceedings of the first appellate court are quashed and set aside as they emanated from a nullity. Either party is at liberty to file a fresh matter after having complied with the law. Taking into account the relationship between the parties, I order each party to bear its own costs. Order accordingly. Dated at Babati this 9th February 2024 /Il /L < J ■ ju_________ ____ :------------ 51 S. M. MAGOIGA JUDGE 09/02/2024 9