CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MUGASHA. 3.A.. MLACHA. J.A. And NGWEMBE. 3.A.) CIVIL APPEAL NO. 464 OF 2021 GEORGE SAYI NZUZULIMA....................................... APPELLANT VERSUS CLAUDIA PAUL LEO..................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza (Mdemu. J.1 dated this 16th day of May, 2019 in PC Matrimonial Anneal No. 27 of 2018 JUDGMENT OF THE COURT 16th& 19th August, 2024 MUGASHA. 3.A.: This is an appeal against the decision of the High Court which sustained the decisions of the subordinate courts and dismissed the appellant's appeal. The appellant has preferred this appeal faulting the courts below having failed to note that the Primary Court had no jurisdiction to entertain and determine a matrimonial dispute between the parties which was not first referred to the Conciliation Board (the Board). i The background underlying the present appeal is as follows: Desirous of instituting a petition for divorce, Claudia Paul Led, the respondent herein, initially referred the matrimonial dispute to the Board which is mandated to reconcile matrimonial disputes and if unsuccessful, to certify so to the court. Apparently, the respondent was not successful and thus, the Board declined to make any certification on ground that, no marriage was in existence to warrant reconciliation. With such a conclusion, we think, the Board engaged in the adjudication on the validity or otherwise of the marriage thus, straying beyond its mandate prescribed under section 104 (5) of the Marriage Act which categorically states that the role of the Board is to reconcile the parties and in case it fails, the Board is required to certify so in the respective certificate. We shall refer to this matter at a later stage of this judgment. Given the said situation, this prompted the respondent to lodge a petition before the Primary Court seeking to have the marriage annulled among others. The issue of being denied the certificate of the Board did crop up before the trial Primary Court and it was considered as one of the extraordinary circumstances, which makes initial reference of a matrimonial dispute impracticable. Therefore, the petition was heard and determined and the appellant lost. His appeal to the District Court was not successful. Subsequently, the appeal before the High Court bore no fruits, hence the current appeal. As earlier stated, the courts below are faulted on account of failure to note that the trial Primary Court had no jurisdiction to try the matrimonial dispute. At the hearing, the appellant was present in Court and he had the services of Mr. Edwin Aron, learned counsel. The respondent was represented by Mr. Steven Kitale, learned counsel. They both adopted the written submissions earlier on filed to constitute an integral part of their submissions at the hearing. It was submitted by Mr. Aron that, in the absence of a certificate of the Board, the Primary Court lacked jurisdiction to try the matrimonial dispute. He faulted the courts below in interpreting the refusal by the Board to issue a certificate as one of the extraordinary circumstances which makes it impracticable to make reference to the Board in respect of a matrimonial dispute. He argued, after the Board had declined to issue a certificate, it was incumbent on the respondent to invoke the jurisdiction of the Primary Court so that it could exercise its supervisory powers and direct the Ward Tribunal to issue the certificate certifying that it has failed to reconcile the matrimonial dispute. On that account he contended that, since the Primary Court had no jurisdiction to try the matrimonial dispute, it embarked on a nullity which adversely impacts on what transpired in the first and second appellate courts. He implored on the Court to annul the judgments and proceedings of both the trial and two appellate courts and accordingly to allow the appeal. On the other hand, Mr. Kitale opposed the appeal supporting the stance of the lower courts that, the Board's refusal to issue a certificate to enable the respondent to lodge a petition was one of the extraordinary circumstances which made it impracticable on the respondent to refer the matter initially to the Board. However, on a reflection, he conceded that without the Board's certificate, the Primary Court had no jurisdiction to entertain the respondent's petition in respect of a matrimonial dispute. Having carefully scrutinised what transpired in the courts below, the ground of complaint and the submissions of the learned counsel for either party which was not contentious, the issue for 4 determination is whether the Primary Court had jurisdiction to try the matrimonial dispute. Prior reference of a matrimonial dispute to the Conciliation Board before instituting a matrimonial dispute in court, is a statutory requirement as prescribed under section 101 of the Law of Marriage Act [CAP 29 R.E.2019] (the Marriage Act) which stipulates: "No person shall petition for divorce unless he or she had first referred the matrimonial dispute or matter to the Board and the Board has certified that it has failed to reconcile the parties. Provided that this requirementshall not apply in any case: - (a) Where the petitioner alleges that, he or she has been deserted by, and does not know the whereabouts o f his or her spouse; or (b) When the respondent is residing outside Tanganyika and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date o f petition; or (c) Where the respondent has been required to appear before the Board and has wilfully failed to attend; or (d) Where the respondent is imprisoned for life or for a term o f at least five years or is detained under the Preventive 5 Detention Act, 1962 and has been so detained for a period exceeding six months; or (e) Where the petitioner alleges that the respondent is suffering from an incurable mental illness; (f) Where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable." [Emphasis supplied] Although the law bars filing a petition for divorce without prior reference to the conciliation Board, however, the listed six exceptions dispense with referring the matrimonial dispute to the Board and instead a petition for divorce directly before the court. The follow up question is whether there were extraordinary circumstances which made prior reference of the matrimonial dispute to the Board impracticable. Apparently, there was none because what the subordinate courts considered as extraordinary circumstances was the refusal by the Board to issue a certificate that it had failed to reconcile the parties. Besides, given that the respondent had initially subjected herself to the jurisdiction of the Board, she could not rely on the exception prescribed which are only applicable to those who directly lodge matrimonial dispute before the court without reference to the 6 Board. In the premises, the interpretation on what constitutes extraordinary circumstances which render impracticable reference to the Board was not proper. This Court had the occasion to discuss the familiar canons of statutory interpretation in the case of REPUBLIC VS MWESIGE GEOFREY AND ANOTHER, Criminal Appeal No. 355 of 2014 (unreported) having said: "The duty o f interpretation does notarise and the rules which are to aid doubtful meanings need no discussion...It is elementary that the meaning o f a statute must in the first instance, be sought in the language which the Act is framed, and if it is plain....the sole function o f the courts is to enforce it according to its terms... CAMINETTI V UNITED STATES, 242 U.S 470(1917). "Indeed, it is axiomatic that when words o f a statute are unambiguous, "judicial inquiry is complete". There is no need for interpolations, lest we stray into the exclusive preserve o f the legislature under the cloak o f overzeaious interpretation. This is all because: Courts must presume that a legislature says in a statute what it means and means in a statute what is says there - CONNECTICUT NAT'L BANK VS GERMAINE, 112S. Ct. 1146, 1149(1992)." 7 The plain language of the proviso to section 101 of the Marriage Act, has prescribed exceptional situations where reference of a matrimonial dispute to the Board can be dispensed with. It is glaring that the exceptions do not include refusal to be issued with the Board's certificate because it was not envisaged by the Parliament or else it would have expressly stated therein. Therefore it is the Board's refusal to issue a certificate as extraordinary circumstance not warranting reference to the Board is interpolation of what is not prescribed under the proviso to section 101 of the Marriage Act. Moreover, we are aware that jurisdiction is a creature of statute and not the likes or dislikes of the parties. Therefore, in cases not falling under the exceptions prescribed under the proviso to section 101 of the Marriage Act, what confers jurisdiction of the court to try a matrimonial dispute, is the Board's certificate. It follows that, in the present matter the absence of Board's certificate to institute a petition for divorce as required by section 101, the petition was not competent before the trial court. This was emphasised in the case of SHILLO MZEE VS FATUMA AHMED [1984] T.L.R 112 where the High Court held: 8 "... a petition instituted without being accompanied by a certificate is incomplete and incompetent." We fully subscribe to the said decision. Therefore, in this matter, since the petition of the respondent was not accompanied by the Board's certificate, the petition was not properly before the Primary Court and it had no jurisdiction to try the petition as per the dictates of section 101 of the Marriage Act. Thus, the Primary Court embarked on a nullity and so are subsequent proceedings and judgments of the first and second appellate court which stemmed on a nullity. Earlier on we indicated how the Board wrongly engaged in adjudication of a marriage dispute referred to it instead of reconciling the parties. On this account, if the respondent so wishes to pursue a petition for divorce, she may refer the marriage dispute to the Board for it to reconcile the parties and if the conciliation fails, the Board shall issue a certificate in that regard as required under the provisions of section 104 (5) of the Marriage Act. 9 In view of what we have endeavoured to discuss, we quash and set aside the judgments and proceedings of all the courts below. Thus, the appeal is merited and it is allowed. DATED at MWANZA this 19th day of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL P. X NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 19th day of August, 2024 in the presence of Mr. Edwin Aron, learned counsel for the Appellant and Mr. Steven Kitale, learned counsel for the Respondent, is hereby certified as a true copy of the original.