godfrey joseph marwa vs josephine mwita chorwa 2022 tzhc 11812 30 june 2022

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 404 OF 2021 {Arising out of the decision of this Honourable Court in Civil Appeal No. 200 of2019 made by Hon. E. E. Kakolaki, J. on the 24?1 day ofApril, 2020) BETWEEN GODFREY JOSEPH MARWA.............................. APPELLANT VERSUS JOSEPHINE MWITA CHORWA ........... RESPONDENT Date of last Order: 23/02/2022 Date of Ruling: 30/06/2022 RULING MGONYA, J. This is an Application for leave to Appeal to the Court of Appeal made under Section 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 [R. E. 2019] and Rule 45 (a) of the Tanzania Court of Appeal Rules, [R. E. 2019]. In this Application, the Respondent herein petitioned for divorce at the District Court in Matrimonial Cause No. 51 of 2018 which decided that the Petition was premature and incompetent. Being aggrieved, the Respondent then appealed to the High Court where it was decided that the appeal was set i aside the dismissal order and substitute it with the order of striking it out for being premature and incompetent. The Chamber Summons is supported by an affidavit of the Applicant Godfrey Joseph Marwa. The Respondent filed Counter Affidavit in reply. In support of this application, the Applicant submitted that there are legal issues that needs to be determined by the Court of Appeal. He contended that the legal issues have been shown in paragraph 7 (i) - (iii) in the Applicant's Affidavit; as hereunder. i) Whether the High Court was justified in ordering the Respondent to file a fresh petition for divorce before the Trial Court without first referring the matrimonial dispute or matter to the Marriage Conciliation Board as required by the law; ii) Whether the High Court was Justified in substituting the order of the Trial Court under the circumstances of the case, thus causing miscarriage ofjustices to the parties; and iii) Whether the High Court in having found that the Respondent had never referred the matrimonial dispute or matter to the Marriage Conciliation Board and tender in Court as exhibit, the said certificate of the Board, was 2 justified in ordering the matter to start afresh before the Trial Court. Further, the Applicant argued that the above three points of law are fit to be considered and decided by the Court of Appeal since it is well known principle of law that no person shall petition for divorce unless he or she has first referred the matter to the Board and the Board has to certify that it has failed to reconcile the parties. The position which got its force under the provision of Section 101 of the Law of Marriage Act, Cap. 29 [R. E. 2019]. It is the Applicant's position that, the High Court in respect of this matter has been procured with illegalities, worth for consideration before the Court of Appeal of Tanzania for clarification on the legal position. In reply to the Applicant's submission, the Respondent strongly denied the contends of the Applicant's Affidavit in support of their application. She argued that the said High Court Judgement is incontestable because providing an opportunity for parties to start afresh a suit clearly meant starting afresh whilst complying with the necessary preliminaries procedures required before the matter is brought to the Court. Also the Court invoked its revisionary powers when appears that there has been an error material to the merit of the case involving injustice. 3 In the rejoinder the Applicant maintained that what he has submitted are reflected in his affidavit. He thus prayed for the Application be granted. I have carefully read the averment in the affidavit in support of the Application and at the same time went through the submission of parties. In examining the merit of this application, I am aware that appeal is a Constitutional right though it has to be exercised judiciously. Article 13 (6) (a) of the Constitution of the United Republic of Tanzania (1977), states: "To insure equality before the law, the state authority shall make procedure which one appropriate or which take into account the following principle namely; (a) When the rights and duties of any person one being determined by the court or any other agency, that person shall be entitled to a fair and to the right to appeal or other legal remedy against the decision of the court or of the other agency concerned." Now having gone through the contents of paragraph 7 (i)-(iii) of the Applicant's affidavit together with the written submission in elaboration to the points stated in the Affidavit, I find that indeed there are issues of general importance demonstrating a Prima 4 facie concerns which suffice to say that they are fit for further consideration by the Court of Appeal. I therefore grant leave to appeal to the Court of Appeal as sought. Each party to bear his/her own costs. It is so ordered. /i / ' //V&s'"'' ~\ y ' \ v ' y L. E. MGONYA JUDGE 30/06/2022 Court: Ruling delivered before Honourable J. Luambano DEPUTY REGISTRAR in the presence of the Applicant, Respondent and Mr. Richard RMA on 30th June, 2022. E. MGONYA JUDGE 30/06/2022 5