19940920 TZHC Dar es Salaam

-·· fl(lt<ft-~ IN THE HIGH COU:nT·OF TANZANIA. AT bAR ES SALAAM CIVJL APPEAL NO. - 55 OF 1993 GARSON MWENISONGG.,Ec • .,. ~ Q ••• ~ • • APPELLANT VERSUS SUSAN Tvr,vENISOi\iGCT.., E 1 • .., • • • • • • • .". RESPONDENT ']his appeal has . its genesis from the d·ecree of the Court.· · of Resi?-ent Magistrate et Kisutu, Dar es salaam which dissolved the marriage of the ¥arties to these proceedings 0 At the hearing • / lJ.e · . . wa argued. of this appeal only irst g:.'Oillld out the fj'!.'e grounds/ The appell'ant contends in that ground that the learned trial Magistrate grossly_ erred in entertaining the petition for divorce on the grounds that the petitioner failed to comply with ·the provisions of section 101 of the.Law of Marriage Acto I will reproduce that section right away for ease of referenoe; it provides:- ... ~s.101~ No person shall petition for divorce unless he or she has first referred the ..... matrimc:1ial difficulty to a Board and the Board . has certified that.it has f3.iled to reconcile the parties.n. The language of ~he law is unambiguons; the requirement ·1s mandatory. So without the requisite condition precedent havin~ baen compli~d with a petition for_divor.ce w:Ul be a nullity right froin its being instituted~ Mr. 11katte who ·appeared for the appellant has· submitted that the' abaence of the certificate from the marriage . ·.. Con~il.1.attory Board was brought to the attention of the· learned· trial Magi~ra.te •il.e the proceedings were 1n progz'eSS but . .· the trial magistrate de~ided ix> ~~d wi'bh the ~rial, _pending:·· the procurement of the cert,ifica~~ The "brial court I s ,d_ecision on this matter is seen at page 4 of the typed copy . -the . ·.. ·of . . proceedings where the iearned trJ.al. mag1s:tra.te.·aays:~ r· '· •. . 1 J ] - 2 "Well. The petition is defective because of non-compliance with section 101 of the law of marriage Act, 1971 •. This is· a fac~t · to which both the c1.,-unsels (sic) -concede. However, as correctly observed by Dr. Lamwai -~nd I totaly agree, the defect is one which warrants this court to_ exercise the p~wers . conferred to it by the provisions of Order Vl Rule 16 or Order Vll rule 11 (c) (sic) of the Cvil Procedure Code..,c.- 11 Dr. Lamwai'i then advoc8ting for the petitioner, had submitted that the _trial court could have rejected the petition under Order Vll Rule 11 (c) but went on to say/tWa~ course of action could not be taken because there had been an attempt to have the matrimonial difficulty solved by th-E~frriage Conciliatory Board.__ Dr,. Lamwai· ad.mi tted 1 however 9 that/ effort had not been exhaustive. ' ' Mr, Mkatte submits n}-w! as he submitted before the trial court, · pe-c -c. on · .I, that the defect in the · which was occasioned by the absence .. of a certificate frora the Board is incurable. He finds support - -·---·-- ·-----·- in the decision of the Court of Appeal in Nilsen V ~ilsen 1 Civil Appeql No. 3 of 1989 9 Kisnngs., Ji-\" t . Dr Mapunda contencls that th::- record of the trial shows that·I the mat~imcnial. difficulty was referred. to the Board prior to · instituting the divorce proceedings 1 and t::-,.at a document to that ··- effect· was produced in court •. It is his ar~ument that the said document in the form·, of a letter which was written on . beha1i' .of the Board was sufficient.proof of the requisite compliance with s..101 and that it was not the petitioner 1 s fau:i.t in filing a defective document that is why the proceedings were stayed pending procurement of the certificate. The proceedings were resumed after' an apparently proper certificate was obtained. In Dr, Mapunda 1 s vtew the trial court had discretion under S.101 of the Law of Marr~age Act a.pd Section 95 of the ¥lt'f.11 Pro~re Code to stay the proceGdings to enable the pe~ti1.. :lobta,iJl a document ~ch ought to ho.ve accompanied the petition, I will begin with Dr. Mnpunda. 1 s contention that it was · not the fault of the petitioner to file n defective document.· -· There is no doubt trn.t D:'" i\'i.:::punda .::..s not correct in view ·of the cle3.r and unambiguous lnriguage of section 101. The petitioner hr,s 3. double prc:.1ged duty under those provisious 1· .. both of which a:-ce maLcbtury"' Firstly 1 he or she rriu~t refer the matrirn(,::.1iaJ. d.ifl:Lcul ty to F:e: B,Jard; secondly the Board has to issue him or her with 2 certificate as proof of having complied with the first ccndition,, It is therefore the duty a petitioner -:~o procure a c_ertificci.te in the required form from the Boardo Even if Dr. Mapunda's argument were to be accepted, the law requires that a petition for divorce cnn..~ot be instituted unless there· is evidenct.= that the matrimonial difficulty has . been reffered to the Board; that evidence is found in a proper certificate..i In the circumstances of this case, and the trial court having held that there was no certificate ' from the Board and that the petition was defective, the_only 0 course which-was open/the le2.r·ned mag:i.s"trd.~-?. W!:I.S to dismiss the peti tiono This~ in ef:f.\:~ct 1 is wha·c the Court of Appeal said in the decision above sited~ I therefore allow the appeal upon the reasons I have considered~- The entire clecJ. '.~ion of the lower court is quashed and the orders that \.\rere madL subsequent thereto are set •· aside(, The respondent shall bear the c;,.:,s-~.s of this appeal ..... and in the court ~elow-0 Mro Mkatte. Far appellant Dr. Mapunda-: Far Respondent;_, J ,)'I., Mackanja JUDGE ___,.._.._ ...~, 20/9/199!+ Certified true copy of the Originalo .J',i