19940628 TZCA Mtwara

j'c ,. n; 11.1IE HIGH COURID OF T.AL'IZALifIA AT HTWI.RA Civ'1L ,!lPPEUU:. NO• 11 OF 199 3 Mi\Si\SI DISTRICT COURT CIVIL CASE NO. 1 OF 1992 HAMISI D. NJ0Y.l1.'1JYAtUKA. • • • • .A.PPELWNT :r versus: - ...t. • ,, HAOMI BONII:11~C]]. •. •,;. •. •. • • .RJJSPO?JDJ!NT jUDGMENT MOSHI 1 Je 'lhe parties to this oatriraonial dispute were i::ia.rried in Masa.$1 under custoraa.r;r law rites in 1979. After they had ooha.bi ted at several places, they ended up in Mtwam town, ~-1here they were residi~ at Mikindani area. In 1987 the respondent left the 11atrimonial home, and efforts by the appellant to have lier ba,ck failed. On 3 Jul.Ys 1992 the respondent ~iled a pGtition for divorce at the Di.strict Court of Masasi. Att~ched to the petition was a letter purporting to be a certificate from the Marri2ge Conciliatory Board tor the :&ncuti Wa.rd in Ma.sasi District. The respondent alleged that she ha.d left the matrimonial home· on account of that the appellant had neglected to provide for her maintenance, and tb.a t of the three children of the marriage. By the tine 'the re~;- nc!•..?nt left, the ' ' appellant ha.d alr~a.cy a.oquii·ed two other wives. i'.ae a.ppell~t, · for his . part, ma.intaii,ned that the respondent·had deserted the matrimonial home - n . , for no other re.isron than that she ha,cl another L1an she loved, and with whom she alrea.ey had a child. 'lhe District Court of Masasi, at the end of the da;y, was satisfied that the marriage between the parties had broken down,. and irreparably so, and grantGd. a decree of divorce. The appellant felt aggrieved, and hence this appeal. • .... /2 ••• . . 2 The main grounds cf complaint b-J the appellant were, in essence, ;t?ofolg. '!hey- centred on sections 101, 103(2)(a), 104(5) and 106(2) of the Law of Marriage Act 1971, hereina.:f'tar o~lled ... . the Act. FirstlY, ' that ~~as~ Mkuti Ward Iv'ia.rria.gc Conoilia to:cy Board lacked . jurisdiction to mediate in the mat~er• I ag:reo with the appellant. Under s~tion 103(2)(a.) of the Act, the Boar:! '.1aving jurisdiction is the Board or a.rzy- of tbe Boards este.blished for tl:e Ward wi t.li..in -which the husband or intended _husba.rrd·residcs•· · 'l'he appellant was not residing lfi thin the .Mkuti Ward of Masasi• He was residi~, a.nd , still resides, Within the township .tr£ Mtwa.ra. And so the Mkuti Ward· Board had clearly acted Without jurisdiction. However, uri.lt>rtuna.tely for the appellant, this irregularity alone was not fatal to the proceedings of the Board. The proceedings were not rendered inw.lid on account thereat. Section 104( 7) of the Act provides that ••the proceedings of a Board shall not be invalid by reason on]¥ of the t'act that it did not have jurisdiction under sn1:iseotion (2) of seotion 103•" Seoon4l,;y;, that the letter (:nz:t.A) ·fron the Boa.rd was not a. oertifioate within the meaning of sections 104(5) and 106(2) of the ~t. Again, I think, the appella.nt might have had a point here. Section 101 of the Act Provides that "Ifo person shall petition for · divorce unless he or she ~as first referred. the raa.trimonial diff'ioulv ' to a Board and the Boa.rd has certified that it has failed to reconcile the part:\.iSe" Section 106( 2) of tho Act requi:;:-es every petition tor. a decree ot d1 vorce to be aoco!:lpcl.!ri.ed by- such a certificate. 1he certificate must set out its ·findings an{: recommendations in terms of section 104(.5) of the Act. :But in this ma.tter the purported oerti:f'i.ca.te of the Doard did not d? .so.. It did not set out the . :findings and reoommendations o:f tl1e '"Board. In fact it did not even sq tha.t the l3oa.rd had entertained the ~tter and failed to reconcile the parties• It was more of a forWn:"':'ding letter to the District Co\U"t than a certificate. All ~ t it sai,d wasa "N~atuma kwako ma.tatizo ya l,a.ta.jwa. hapo juu. ili k~ta.tua. ya.nahusu. ndoa yao.n · ,. • 3 In point of the pclicy of the Act, a. Marriage Concilin.tory Board is a very importu.n t institution in the sohc,:me of thi:n:~s :under the Aot. It is an impartial body expected to restore confidcnce'in parties con:f'rontea_ W?, t:.i the r::tr:-ssos and 3-~..:ai •.i.S of. married life. It is in a.·position to·raclce an objective assessment qt the circumstances followed by an attempt at mediation Md reoonciliation which a.re essentia.l_under the Act. And in ord.er to achieve the intencled pm-pose, ·it' is es$ential that th.~ Board strictly adheres to_ the ·,, ·. . . . procedu:t"e set out tm.der section 104 of the Act in its deliberations• Tb.at said, I must, also ·s~, that the provisions of section 101 of the Act which makes re:feronce to the Boa.rd ma.n~to:cy arc not, holfever, absoiutea 'i1l.1ere are six exceptions to the requireraent specified thereunder, a.'1d tlie l.ast· one, appe::..ring under paragraph (:f') of section 101 hn.s caused me considerable a.ntiety. It reads: "101 • No person sl~an petition for divorce llll.loss he or she has first refeJ;rod. the r.10.trimonial difficulty to a Board and the Board has cert:i.fied that it has failed to reconcile the parties: Provided that t::.d.s requirement shall not apply in arry case -····••u .. (f) wha-rc t!1e court is s;:.·'i.r,,:'ie<l ·that tl1cre a:t;e. extrc.orclina.ry circur.1st_a1J.oes ·whi::;:!:i L;ake reference to the Board impra.cticatJ.ee" '·. ··- - - Th,:i" propeii. ~~nstruction to .be placed on paragraph (~) of section 101 of the Act :was. c~nsi:dorecl at leng"'.i...11. ~Y' . ~ brother, the late Ocyiuke, J. in the case.::C.of ~ia,-i'. Illian V. I~bdulla ··:Kb.an (1973) LRT. n. 57• I would, with genui:rie .respect, adopt that ' ' . oons:truotion. In point of Principle, a Court should not by-pa,ss the Marriage Conciliatory Board in clecling with ma.trimonial proceedings for cli voroe expect in extreme cases. Differently stated, the discretion conferred on a. cou.rt by parac;-raph (:f') of section 101 should only be sparingly excercisecl, and the:~ only in circ:lmstn.nces ldlere it is clear beyond .. reasona1;le Jo·.1bt that a reference to. a ~ ~ Boa.rd is not a practical proposition. The circumstances of n case, f J- . 4 for instance, ~ be such that no expectation can be e...--itertc.1.ined that the Board will be a.ble to achieYe 3l1Y-useful 1~esul ts and that air:, _reference to it Will b0 so much waste of tine and effort. The term llimpraoti.Oable"-i:n par~c:.~h (:r), tb~~efore, include a. consicleration of what can be achiev.:~d b'J' c. r~f'ercnce -to a B~d-hav:ing ree;'aJ.'!c,l to the extraodina:ry circumsta..11.ces of a po.rticrJ.ar case, which mey- oover a. variety of situations including t:~e graVi ty of the matrimonial lo.pse. In other words, the term 11.impraotica."ble" in sectior. 101 (t.) o:f' the Act is not to be limited to physical impracticability. It also empowers a court to consider ,;{b.at can be .3chieved by a reference to a. Marriage Conciliatory Board in all o:f' the Circumstances of a. Pa.rti.cular oase. In this oase, the desertion and o.dul terous •a.ssociation~by-tb.e respondent had continuously persisted for a.bout five :years by the time the petition was filed. They have now persisted :for about seven yea.rs. TI.le respondent had not substantiatGd her cla:ios of neglect, and the desertion was, tlw1~e;f.ore, wilful. The a.clul terous association bad led to a child. 1l11at very long period was, in r:ry view, more than sufficient for passions a.nd emotions to have oooled off• And yet severa.l attempts by the appellant to rescue the i:;arriage had throughout f'ailede And as if to clinch the Da.tter, the r~spondent -told this court on &ppe~ in no uncertain terns, that she ' ' will never go ba.ok {o the appellc!llt• With respect, I am satisf·icc.l, in a.11 the circunsta.r:ces of the matter, wb.ioh1 in my view, qualify to be termc:l extra.ordinary, that reference to a. Boa.rd, then and pow, 1,ould have been, and woUld be, a useless exeraise, and therefore impra.otioable in terms of section 101 (f) of the Act. Such an e:-:crcis.e 'would have been then, and would be now, so much a. waste of time a.i1tl effort. - 'lhe appellant still appen.rs to be desirous of' I:laip.t~ng the ma.ITiae;e after all these years of sepa.ra;tion. But that desire, when 'Viewed against the true and real background of the :2c-:i,tter as ex-9lained, thi!)k:ing clearly becomes a hope against a.11 hope• Ii.. beoQ~es a w:i.sh:ruJL.rather. . 5 The a,ppel:lat'it,- in .the circums ta.noes, should call it qui.l ts, and ... ···~- a.ocept the fa.ot, no matter how b:Lttei--, that the marriage between him ,and the respondent has, as rigLtly fc:md by the trial court, irreparably brbk:en down. Aoot>rding~v1 · this appeal fails, and it is hereby dismisseu. in its entirety. Jhoh party to bear its own side of tho costs, here and in the 001.ll."t below. .B. P• hOSIII J(;"DGEe MTW4M:- 28 June, 1994 For ,Appellant: Absent Far Respondent: Present.