GREYSON MPANDA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA PC CIVIL APPEAL NO. 48 OF 2023 (Originating from Matrimonial Appeal No. 6/2023 of Iramba District Court at Kiomboi and Matrimonial Cause No.38/2023 of Nduguti Primary Court) GREYSON MPANDA………………………………...……………………………. APPELANT

VERSUS RAHEL DANIEL…………….………….………………….…………………… RESPONDENT

JUDGMENT Date of last order: 21st August, 2024. Date of Judgment: 27th September, 2024. E. E. KAKOLAKI, J. On 21st June 2023 the respondent herein Rahel Daniel approached the Nduguti Primary Court within Mkalama District, Singida Region petitioning for divorce decree, custody of the child and division of matrimonial assets jointly acquired with the appellant as the two started living together since the year 2011. Having heard the parties, the trial court found that their marriage had been broken down irreparably hence proceeded to grant her a divorce decree only as no orders were issued regarding the child as well as division of matrimonial assets jointly acquired. Discontented with the order for divorce and failure by the trial court to issue an order in relation to custody of the issue of marriage the appellant appealed to District Court of Mkalama, the 1 appeal which proceeded ex parte as the respondent refused service of summons. However, having heard the appeal on merit lucky was not on his side as the appeal was dismissed while the appellate court upholding the trial court’s decision. Disgruntled lodged the instant appeal fronting five grounds of appeal which can be summarized into four going thus. One, parties’ dispute was not referred to the marriage reconciliation board, second, there was valid marriage and unbroken one, third, it is was improper to issue divorce

decree in absence of cogent evidence to prove that marriage was broken down irreparably and fourth, the trial court erred for failure to issue orders regarding custody of the child and division of matrimonial properties jointly acquired. At the hearing of this appeal like in the first appellate court respondent refused service of summons and further without any justifiable reasons failed to enter appearance in Court even after service was effected by way of publication of summons in the Mwananchi newspaper of 24/05/2024 and Nipashe newspaper of 30/05/2014, hence ex-parte hearing order against her. In this judgment I am intending to address each and every ground of appeal if need be. To start with the 1st grounds of appeal, the appellant who appeared in person unrepresented and heard viva voce submitted briefly to the Court that, the appellate court did not consider the fact that the trial court heard and determined the petition without jurisdiction because their matrimonial dispute was not referred first to marriage reconciliation board for purpose of 2 reconciling them. When probed by the Court as to whether they never attended any reconciliation session before the Board the appellant admitted to have appeared there but claimed that, no reconciliation ever took place as the respondent refused it. He thus pressed the Court to find there was no reconciliation conducted hence the

trial court had no jurisdiction to try the matter. I have keenly considered the appellant’s complaint after revisiting the record of both trial and appellate court as well as the impugned judgment. The fact which the appellant appreciates as uncontroverted one is that, together with the respondent appeared before the Ward Marriage Reconciliation Board for Ndunguti for the purposes of being reconciled over their matrimonial dispute. The only issue in which this Court is called to consider and determine under this ground is whether parties by appearing before the said Nduguti Marriage Reconciliation Board were reconciled and issued with valid certificate in accordance with the law. Before responding to the issue I find it imperative to review the laws governing proceedings of Marriage Reconciliation Board (the Board). Marriage Reconciliation Board is found and established in the ward in which a Ward Tribunal is also established for the purposes of resolving matters related to matrimonial disputes at the lowest level before reaching courts of law. The Ward Tribunal is established under section 3 of the Ward Tribunal Act, [Cap. 206 R. E 2002] by the Minister responsible for Local 3 Government by notice published in the Government gazette and its composition is well stated under section 4 of the Act. Section 4 of the Act reads: 4. (1)Every Tribunal shall consist of— (a)not less than

four nor more than eight other members elected by the Ward Committee from amongst a list of names of persons resident in the ward compiled in the prescribed manner; (b)a Chairman of the Tribunal appointed by the appropriate authority from among the members elected under paragraph (a). (2)There shall be a secretary of the Tribunal who shall be appointed by the local government authority in which the ward in question is situated, upon recommendation by the Ward Committee. (3)The quorum at a sitting of a Tribunal shall be one half of the total number of members. (4)At any sitting of the Tribunal, a decision of the majority of members present shall be deemed to be the decision of the Tribunal, and in the event of an equality of votes the Chairman shall have a casting vote in addition to his original vote. It is this same Ward Tribunal which in many occasions the Minister responsible for Legal Affairs designates as Marriage Reconciliation Board by under section 102(1) of the Law of Marriage Act, [Cap. 29 R.E 2019] (the LMA) hence vest it with powers to sit and reconcile parties referring their matrimonial disputes there save for Communal Board designated under section 102(2) of the LMA in which its members are appointed by the appropriate organ of the said 4 community for which the Board is established. It is also settled law under section 103(1) of LMA that, every Board shall

consist of a chairman and not less than three or more than five elected members from among the list of ward residents and that its proceedings is regulated by the Marriage Reconciliation (Procedure) Regulation, 1971 GN. No. 240 of 1971 read together with section 104 of the LMA. As to its quorum per sitting regulation 4 of GN. No. 240 of 1971 provides that, shall be three members chaired by the chairman or vice chairman in which the decision shall be of majority where the quorum is three or five members as in case of even number of members the chairman shall have casting vote. See regulation 8(1) of GN. No. 240 of 1971. The law provides further that, where the Board fails to resolve the dispute by the parties shall issue them with a certificate to that effect duly signed by either of its members. See section 104(5) of LMA and regulation 9(1) and (2) of GN. No, 240 of 1971. Members responsible for signing the said certificate no doubt are the chairman or the vice chairman and the two other members of the Board. The secretary to the Ward Tribunal is not a member to either the tribunal itself or the Marriage Reconciliation Board. Saying it in other words, if not elected as a member in terms of section 4(1)(a) of Ward Tribunal or as described in section 103(1) of LMA, the secretary to the Ward Tribunal duly appointed by the local authority in which the ward is situated as per

section 4(2) of the Ward Tribunal Act does not become a member of either the Ward Tribunal or the Board for the purposes of marriage 5 reconciliation hence cannot participate in decision making. My finding is also fortified in the contents of form No. 3 prescribed in the schedule which for the purposes of clarity I find it imperative to reproduce it hereunder: ''MARRIAGE CONCILIATION BOARD OF (state full designation of Board) WHEREAS a dispute exists between............................................... (state name of husband) and .................................................. (state name of wife) who are lawfully married and such dispute was referred to this Board by ...................................................... (name of the person who referred the dispute). THIS IS TO CERTIFY that this Board has failed to reconcile the parties and that in the opinion of the Board- (any recommendation which the Board may wish to make) Signed .................................................................................. Chairman/Vice-Chairman/Member ............................................. Dated this ................................. day of ......................... 20.... " From the cited form it is patent clear that, it is only the chairman or vicechairman or any member to the Board seated in the reconciliation session who can sign the said certificate as any signature

outside the said members I hold vitiates proceedings of the said Board and validity of the certificate. 6 In the matter at hand, glancing at the certificate which the trial court relied on to order for institution of the petition by the respondent apart from being signed by three people who are presumed to be members of the Board in the absence of proceedings from the board to so prove, there is a signature of one Raymond Juma and the official stamp of secretary to Nkalakala Ward Tribunal plus the dates of 23/06/2023. It is this same Raymond Juma who prior to the filling in and signing Form No. 3 issued to the respondent, on 20/06/2024 wrote the Primary Court Magistrate for Nduguti Primary Court a letter requesting him/her to receive the respondent herein and entertain her after the Board’s failure to reconcile the matrimonial dispute with her husband, before the latter ordered for preparation of the said certificate. The said letter also bore his signature and official stamp as secretary to Nkalakala Ward Tribunal which are also appended in Form No.

3. The fact that the said certificate (Form No. 3) and the letter to the Magistrate incharge Ndunguti Primary Court both bear his names, signature and official stamp as secretary to the Ward Tribunal and in absence of any evidence to the contrary that by signing those two documents he did not sit as one of the members to the Board or participate in the reconciliation session between parties and therefore formed part of its decision and recommendation, a conclusion is drawn by this Court that he illegally constituted that quorum of the Board when entertained parties’ matrimonial dispute hence vitiated its proceedings. That being the position even the certificate issued I hold was 7 rendered invalid. In view of that glaring irregularity this Court is of the findings that parties were not reconciled before the Marriage Reconciliation Board for Nduguti Ward before institution of the marriage petition by the respondent before Nduguti Primary Court. Thus the petition was prematurely preferred hence contravened the provision of section 101 of the LMA for being accompanied by invalid certificate from the Ward Marriage Reconciliation Board hence incomplete and incompetent. I find refuge in the case of Shillo Mzee Vs. Fatuma Ahmed [1984] TLR 112, where the Court held that a petition instituted without the accompanying certificate is incomplete and incompetent. See also the case of

Hassani Ally Sandali Vs. Asha Ally, Civil Case No. 246 of 2019 (CAT) Tanzlii. The first ground I hold disposes of this appeal as proceeding to consider the rest of the grounds of appeal does not only academic exercise but also wastage of court’s precious time. I therefore retire here. In the premises and for afore findings, the proceedings before the trial court were a nullity as well as the subsequent judgment and orders therein. So are the proceedings and judgment of the 1st appellant court. I therefore proceed to quash them all and set aside the two lower court judgments and orders thereto. Either party is at liberty to institute a fresh petition if so wishes. The appeal is therefore allowed. The matter being a matrimonial one, I order each party to bear own costs. It is so ordered. 8 Dated at Dodoma this 27th of September, 2024. E. E. KAKOLAKI

JUGDE 27/09/2024. Court: The Judgment has been delivered at Dodoma today on 27 th day of September, 2024, in the presence of both Appellant and Ms. Veradina Matikila, Court clerk and in the absence of the Respondent. Right of appeal explained. E. E. KAKOLAKI

JUGDE 27/09/2024. 9