EMMANUEL CHANUO MUSHI

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DODOMA PC CIVIL APPEAL NO. 52 OF 2023 EMMANUEL CHANUO MUSHI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS MARIA LAURENT MUSHI .............................. RESPONDENT / DEFENDANT

JUDGMENT HASSAN, J, This is a third appeal arising from the decision of the district court of Dodoma at Dodoma in Civil Appeal No. 111 of 2022 dated 31st July, 2023. Primarily, the respondent herein filed a Matrimonial Cause No. 78 of 2022 in the Urban Primary Court of Dodoma, of which, after its full hearing, the appellant was aggrieved by the decision meted. He therefore lodged an appeal to the District Court of Dodoma. Again, he was unsatisfied with the decision; thus, he filed the instant appeal, yielding twelve (12) grounds for resoluteness. Although it may not be vital to enlist those grounds, however, for better understanding of what will come after, I find it prudent to conscript them hereunder: 1. That, the appellate District Court erred in law and in fact in upholding the grant of divorce without proof of the marriage.

2. That, the Honourable District Court Magistrate erred in law and in fact in not dividing in some grounds of appeal.

3. That, the Honourable District Court erred in law and in fact in raising Suo motto and deciding on the issue of presumption of marriage.

4. That, Honourable District Court erred in law and in fact in deciding that, the ground of appeal that, the appellant was given non-existent properties was an afterthought.

5. That, Honourable District Court erred in law and in fact in deciding that, the ground of appeal that, under the law the issue of maintenance of children automatically follows the order of divorce or separation.

6. That, Honourable District Court erred in law and in fact in upholding the distribution of assets which is against the law.

7. That, Honourable District Court Magistrate erred in law and in fact in upholding as joint matrimonial assets to the properties which were neither properly identified nor proved.

8. That, Honourable District Court erred in law and in fact in upholding the division of the assets which was unfair and biased to the appellant’s assets.

9. That, Honourable District Court erred in law and in fact in deciding in division without considering the loan pending to the bank.

10. That, Honourable District Court erred in law and in fact in upholding ordering Page. 1 the custody of children to the respondent against the law and evidence.

11. That, the Honourable Primary Court erred in law and in fact in ordering maintenance of the issues against the law and against the evidence.

12. That, the Honourable District Court erred in law and in fact in deciding that, the appeal of the appellant had no merit. The hearing of the appeal was conducted by way of written submission. Whereof, the appellant was represented by Mr. Elias M. Machibya, learned Advocate; and the respondent stood herself unrepresented by counsel. The main issues for consideration of the court in this appeal are in three folds, thus: (1) whether or not there was proof of marriage contracted in terms of section 55 of the Law of Marriage Act, 1971. (2) whether or not the second court had fully complied with the requirements under Section 114 (1) and (2) of the Law of Marriage Act, 1971. (3) whether or not consideration for custody of children was correctly adhered to in terms of section 125 and 126 of the Law of Marriage Act, 1971. Going through, parties were in full compliance with the scheduling order in filing their respective submissions on time. Moving forward, the appeal rests with me for assessment of what transpired in the courts below. However, in the process of composing the judgment, I noted the anomaly in the primary court records, which has affected the decision thereof. The glitch was thus, whether or not accompanied by a certificate of marriage reconciliation, the petition becomes incompetent. Since the parties have not addressed this issue in their written submissions and it

was not one of the grounds of appeal, I am obligated to revoke my earlier order to deliver the judgement and invited the parties to address the court on the issue raised by the court Suo motu. On his part, learned counsel, Mr. Machibya, submitted that looking at the instance case, the case file of the trial Primary Court appears to have been attached with a certificate of the marriage reconciliation that was secured from the Marriage Reconciliation Board. However, though it was not made part of the records, how it find its way into the case file is unknown because records are silent. He pointed out that the law under section 106 (1) (2) of the Marriage Act provides that a petition for divorce has to be accompanied with a certificate of marriage reconciliation. Mr. Machibya added that there are a number of decisions that support this conception, and some of them even went further to show that a certificate of marriage reconciliation has to be admitted in evidence during trial. He stressed further that in the instance case, a certificate of marriage reconciliation was not tendered and admitted by the court to form part of the records. That being the case, the petition becomes incompetent, and thus, the proceedings of the trial primary court become null and void. And, as a result, in such a circumstance, even what happened in the first appellate court also becomes void because it

results from a nullity proceeding. In the end, he prayed that the proceedings of both the trial primary court and the first appellate court be nullified and the judgment be quashed and the order set aside. On the other hand, the respondent, being a laywoman, had nothing to say. She beseeched to leave her fate to the court for determination. Going through the submissions, it is a trite law that under section 101 of the Marriage Act, which provides categorically that: "101. 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: Provided that this requirement shall not apply in any case- (a) where the petitioner alleges that he or she Page. 2 has been deserted by, and does not know the whereabouts of, his or her spouse; (b) where the respondent is residing outside Tanzania and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date o f the petition; (c) where the respondent has been required to appear before the Board and has willfully failed to attend; (d) where the respondent is imprisoned for life or for a term of at least five years or is detained under the Preventive Detention Act and has been so detained for a period exceeding six months; (e) where the petitioner alleges that the respondent

is suffering from an incurable mental illness; andwhere the court is satisfied that there are extraordinary circumstances which make reference to the Board Impracticable”. The use of the term ”shall" signifies that compliance with section 101 of the Marriage Act is mandatorily paged, except where there is evidence that shows the presence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. Such a requirement is further reinforced under section 106 (2) of the same Act, which also states in mandatory terms thus: "Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..." It has been further pressed in case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022), thus: “We are unable to agree with Mr. Kahangwa on this point, because the issue of parties' referring their matrimonial dispute to the Marriage Conciliation Board before filing a petition for divorce in the court, is a mandatory requirement of the law. Therefore, that document was required to be tendered and admitted in evidence”. The dictates from the decision above necessitate that the document has to form part of the records of the proceedings and not merely be attached in the case file without recognition in the

proceedings. Having said that, it is now sufficient for me to thoroughly consider what transpired in the trial primary court. In the case at hand, it is on record that there was no certificate from the Marriage Conciliation Board that accompanied the petition for divorce lodged by the respondent before the trial court. This can be evidenced by revising the whole passage of proceedings, which clearly indicates that the document was not made part of the records. It is common knowledge that having the purported certificate of marriage reconciliation merely pinned at the back of the trial court’s case file does not make it part of the records. In order to be part of the record, the document has to be firstly admitted and then recorded by the court. It is trite law that annexures are not evidence for the court of law to act and rely upon. In Sabry Hafidhi Khalfan v. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (unreported), the Court stated that: “We wish to point out that annexures attached along with either the piaint or written statement of defence are not evidence. Probably It is worth mentioning at this juncture to say the purpose of annexing documents in the pleadings. The whole purpose of annexing documents either to the plaint or the written statement of defence is to enable the other party to the suit to know the case he is going to face. The idea

behind is to do away with surprises. But annexures are not evidence." [Emphasis added]. Likewise, even in the case at hand, the documents that are annexed with the case file at the back cannot automatically be treated as evidence or a prerequisite that confers the jurisdiction of the trial court. In my view, to comply with the import of section 106(2) of the Law of Marriage Act, the Page. 3 petitioner, before the hearing started, should have presented to the trial court a certificate of marriage reconciliation and the trial court admit it to form part of the records. (2) if it needs to be, for the party to tender the same in evidence and be admitted by the court. To enliven section 106 (2) of the Marriage Act provides: “Every petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..." In my considered view, the highlighted phrase or sentence above is aimed at confirming the jurisdiction of the trial court at the outset. In my opinion, the (1) and (2) items were more critical since they touch on the determination of jurisdiction. Whereas the (3) items show the evidential strength that the petitioner has followed the procedures to save their marriage, but it went in vain. In the circumstance, even if a certificate has not been tendered in evidence, the court would have taken a judicial

notice to consider the same had it be admitted as part of the records. See section 59 (1) (a) of the Evidence Act, Cap 6. That said, in my recollection of mind, the requirement that petition for a decree of divorce should be accompanied with a certificate of marriage reconcilliation seems to work mutatis mudandis on how the certificate to confer jurisdiction and, or a consent to initiate economic crime cases works in our criminal justice system. See for instance, in Rowald s/o Michael vs Republic, Criminal Appeal No. 38 of 2009 CAT (unreported) and Rhobi Marwa Magare and 2 Others vs Republic, Criminal Appeal No. 192 of 2005 (unreported). Worth noting, even the petitioner in her oral account has not mentioned anything about the certificate of marriage reconciliation, and the same fact was noted on the opposite side. They have been all muted about it to be at worth. Furthermore, by looking the case of Hassani Ally Sandali v. Asha Ally, Civil Appeal No. 246 of 2019 (unreported), the Court of Appeal once faced an akin situation, where the trial court had entertained an incompetent petition for divorce that had not complied with the requirement of section 101 of the Marriage Act, stated that: "...the granting o f 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. However, there is no indication of any extra ordinary circumstances in this appeal which could have attracted dispensing with reference of the matrimonial dispute to the Board. "Emphasis added. Likewise, in this case, since I have found that the respondent’s petition for divorce before the trial court was incompetent for failure to comply with the requirement of sections 101 and 106 (2) of the Law Marriage Act, the trial court did not have the requisite jurisdiction to entertain the matter. It is unfortunate that the first appellate court has not detected the said irregularity, as it also fell into the same trap and proceeded to divide the alleged matrimonial properties between the parties without having in place a valid decree of divorce; it was obvious that, had the first appellate court critically considered the crucial legal issue on the jurisdiction of the trial court, it would not have upheld the decision of the trial court, which is erroneous on account of the reasons stated above. In conclusion, I deem the petition to have been

flawed. Undoubtedly, based Page. 4 on the circumatances, the proceedings before the trial primary court and the first appellate court were vitiated. As a result, I have no option other than to nullify the entire proceedings of the trial in the primary court, quash the judgment and set aside the subsequent orders thereto. Additionally, I also nullify the proceedings of the first appellate court and quash the respective judgments and subsequent orders, as they stemmed from null proceedings. In the end, based on the circumstances thereof, the respondent is at liberty to process her petition anew in accordance with the law, if she so wishes. In the event and for the foregoing reasons, I find merit in the appeal and allow it. In terms of the proviso to section 90 (2) of the Law of Marriage Act, I make no order as to costs. Dated at DODOMA this 7th of March 2025 . S. H HASSAN

JUDGE OF THE HIGH COURT Page. 5