19801128 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT OODOMA (PC) MATRIMONIAL APPEAL No.9 OF 1980 (From the deci.sion of the Primary qo~t of Singida at utemiaj. irl Ci.vii Case No.7 of 1980) IBRAHIM RASHID 0 . 0 0 e • o o • Appellant (Original Respondent) versus KIBIBI GWAE o • o o o o •. • o • Respondent (Original Petitioner)

JUDGMENT MAINA,_ Jo This 1:s an appeal against the decision of the Primary Court which granted a decree of separation to il:ie respondent. The. husband has alleged that the matter was not referred to a Marriage Concilic.tory Boardo I have peru::;ed the record of the Prinary Court and there is no evidence that the matter was referred '.:o a Marriage Conciliatory Boardo There is no certificate issued by the Board that it was unable to rr:~concile the parties.. The respondent has conceded at the hearing of this appeal that no such certificate was issued •. The provisiens of section 101 of the Law of Marriage Act are mandatory as it is provided th at: "No persoh shall petition for divorce unless he or she has first referred the matrimonial difficulty to a Board and the Board has certified that it has failed to ieconcile the parties". The provisos to section 101 of the Law of Marriage Act do not. apply in this caseo Since the petition was for divorce, the difficulty should have been referred to a Marriage Conciliatory Board before filing the petition in the Court~ The trial Court therf~fore had no power to hear the petition without a certificate from the Board that it had failed to reconcile the partieso '!'he decree issued by the Primary, Court is set aside. This appeal. succeeds and it is allowedo I do ::iot consider it appropriate to make any order for costs since the parties are sti11 husband and wifeo So each party to bi:ar his or her costs. ~\I' (,. '~.vJ WoJ.MAIN.I\

JUDGE . SINGIDA 28 November, 1980 Both parties pre sen to