20101220 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA. AT DAR ES SALAAM PC. CIVIL APPEAL NO. 59 OF 2010 (Originating from Temeke District Courl) INNOCENT ROMAN NGOWI . . . . . . . . . . ~- .... APPELLANT VERSUS ELTRUDA JOACHIM NGOWI . . . . . . . . . . . .RESPONDENT Date of last Order 04/11/2010 Date of Ruling 20/12/2010 JUDGMENT MASSENGI, J. Appellant Innocent Roman Ngowi who was respondent in Temeke Primary Court whereby the respondent Eltruda Joachim Ngowi petitioner for decree of Divorce and division of matrimonial ' asserts and at the end of the day divorce was granted and custody of children was awarded to respondent. Appellant unsatisfied unsuccessfully appealed to the Temeke District Court. Unsatisfied with the decision of District Court he is now appealing against it on two grounds namely:- (1) That the District Court erred in law and fact in holding that the decree of divorce entered by the primary court ···,.'-.. 1 \ \ '"' ·~ ,, , . . . '\ \, was proper without being there a certificate of marriage conciliation board to the effect that conciliation of the parties had failed. (2) That the Hon. District Court erred in law and in fact for agreeing with the Primary Court that Jesca and Jacline (issues of marriage) should be in the custody of the Respondent because they were below seven years of age without making an order the same should be in the custody of Appellant after attainment of seven years of age. It was agreed the parties to argue the appeal by way of written submissions. Appellant in his submission to support the appeal submitted that one of the grounds to District Court challenging the Primary Court decision was that the Primary Court erred in granting divorce without there being a certificate to the effect that the board has failed to reconcile the parties which is contrary to section 101 of the Laws of Marriage Act Cap 29 R.E 2002. In its decision the District Court said that in the Primary Court records there was a letter from Serikali ya Mtaa which said they have failed to reconcile the parties and the District Court found that the parties passed through conciliation Board as the requirement of the law basing on the letter from "Serikali ya Mtaa" The appellant is now challenging the District Court relying on that 2 particular letter from "Serikali ya mtaa" on the basis that the proceedings of Marriage Conciliation Boards are governed by the Marriage Conciliation Boards (Procedure) Regulations G.N. 240 of 1971. The regulation are made up by the Minister of Legal Affairs under section 102 (2) of the Law of Marriage Act Cap 29 R. E. 2002 Regulation 9 (2) of those Regulations requires a Reconciliation Board if fails to reconcile the parties then it shall issue a certificate in the prescribed form and that is Form No. 3. And there is no such form in this case. Secondly The Marriage Conciliation Boards a legal creature in two ways as per section 102 of the Law of Marriage Act Cap 29 R.E 2002 whereby the Minister shall either establish a board in every ward designated committees or bodies established by any community to perform the functions of Marriage Conciliation Board. "The Serikali ya Mtaa" is not among the Marriage Recondition Board as a list of institutions designated by the Minister to be boards is contained in Government Notices No. 97/71, 211/71 and 245/71. And since there was no certificate which was issued in a prescribed form by neither the law nor the institution which issued it is not among the list of Marriage Recondition Boards there was no conciliation of the parties with the meaning of Section 101 of Law of Marriage Act, Cap 29 R.E. 2002. He referred the court to 3 ' ' .. • the case of ATHANAS MAKUNGWA V DARINI HASSANI (1983) TLR 132 Bahati , J. (as then he was) held:- "Where there is no certificate within the meaning of sect. 101 of the Law of Marriage Act. 1971 from the conciliation Board indicating its failure to reconcile the spouses a petition for divorce becomes incomplete. He also referred the court to the case of Shillo Mzee V Fatuma Ahmed (1984) TLR 112 where Sisys, J. (as then he was) stated:- "ln absence of a certificate from conciliation board a petition for divorce becomes premature and incomplete" Respondent in his submission argued that the parties were reconciled by the Marriage Conciliation Board which issue a certificate and referred the issue to Primary Court. He distinguished the Case of SHILLO MZEE V FATUMA AHMED from the present one as in SHILLO case there was no certificate 4 at all while the present case there is a certificate. He therefore called upon the court to dismiss the appeal as it is devoid of merit and unfounded. In rejoinder the appellant mainted there was no certificate of Marriage Reconciliation Board persuat to the filing for the petition for divorce as a letter from "Baraza la Mtaa" was not a body which on the eyes of the law was established for reconciliation of marriage purpose. After going through the record of the lower courts I am fully satisfied that what was filled as a certificate from Marriage Reconciliation Board was a letter from "OFISI YA SEREKALI YA MATAA, MACHIMBO YOMBO VITUKA, DAR ES SALAAM dated 08/10/20 addressed to the Primary Court In-charge of Primary Court Temeke Zone. The contents of the letter are as follows: I quote "Mtajwa hapo juu alileta lalamiko lake katika baraza laq mtaa huu dhidi ya manyanyaso ya mumewe ENOCENT NGOWI kwa kuwa mdai (mke) anadai "ta/aka" na amekataa kukubaliana na ushauri wa baraza la mtaa. Na kuwa mdai (mke) ameng'ang'ania ta/aka 5 toka kwa mume. Na mume (mdaiwa amekataa suala hilo. Ofisi hii inamleta kwako kwa maamuzi zaidi ambayo yako nje ya uwezo wetu" Now as the letter is can we say that it is a certificate to require under section 101 of the Law of Marriage Act? The section provides;- "No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties,, Is then the BARAZA LA MTAA a Board? According to section 2 of the Law of Marriage Act, Cap 29 RE 2002 a Board means marriage conciliation Board established under the provisions of Section 102 (Supra). The section provides 102 (1) "The Minister shall establish in every ward a Board to be known as a Marriage 6 Conciliation Board, if he considers it is desirable so to do, establish two or more such Boards in any ward" 102(2) "Where the Minister is satisfied that any Community in Tanzania has established for itself a committee a body of persons to perform the functions of a Marriage Reconciliation Board and that it is desirable that such committee or body of persons be designated to be the body having jurisdiction over the members of that community." I therefore agree with the appellant's advocate the "BARAZA LA MTAA" was not marriage reconciliation been board as it was not established nor designated by the Minister of Legal affairs to that effect as it not among the list established or designated asper's G.N No 597/1971, 211/71 and 245/71. Also 7 '. the contents of the letter are not to the effect that they have failed to reconcile the parties. The contents are to the effect that the wife have refused to the advice of the "Baraza la Mtaa" and insisted on divorce and the husband have refused. Therefore the matter was not referred to Marriage Reconciliation board as claimed by the respondent. have gone through the record of the Primary Court and found that the matrimonial difficult in this case in cruelly. According to respondent, she has been tortured mentally and physically by appellant, beating her and harassing but it didn't end their but appellant supported his sons whom he had with another wife to beat the respondent. Also appellant had a habit of discriminating her daughters and telling them he valued his son and also the female children were harassed and discriminated even at this era whereby the International community through International Law is against discrimination of any kind especially females. Our domestic law, our policy and our legal system all are against discrimination. I am therefore of the opinion that where a person is subjected to discrimination at this era then he or she is subjected to mental torture. Respondent has referred the matter to various family members but after reconciliation the appellant and his sons did not stop but continued with the habit of beating and harassing appellant and her daughters to the extent 8 of denying the daughter to have milk, the appellant will pour down the milk rather than the daughter to drink the milk. The son would add sand, to rice which respondent has cooked or would add salt to stiff porridge (ugali) and all these are harassment. The matter has also been referred to the Roman Catholic and church whereby the parties celebrated their marriage but they were not reconciled. The respondent has even run to appellants brother in Mbeya then to the parents in Moshi but the sitation could not be rescued, it is my considered opinion that the circumstance of this case fit to the proviso of section 101 of the Law of Marriage ActCap 29 R.E 2002 whereby the requirement of referring a matrimonial dispute to Marriage Reconciliation Board and the Board issue a certificate that it has fail to reconcile the parties before a petition of divorce is filled. The Proviso provides:- "Provided that this requirement (referring to the Marriage Reconciliation Board) shall not apply in any case (f) Where the court is satisfied that There are exotic ordinary circumstances which make the reference to the Board impractible. 9 The conditions in this case to my view even the church under the Institution of MAHAKAMA ZA MAJIBO JIMBO KUU LA DAR ES SALAAM which indicates that the matter was referred by Yambo Vituka Parish to them but after great efforts they have failed to reconcile them. Now if the matter is sent back to the Marriage Reconciliation Board can the parties be reconcile? It is my opinion that the possibility of reconciliation is almost zero and therefore it is just wastage of time and subjecting the parties especially the respondent to more harm rather than curing. And therefore find it that the circumstance are extraordinary which makes the reference to the Board impracticable and therefore do away with the requirement as provided by section 101 (f) of the Law of Marriage Act Cap 29 R. E 2002 and as it was held in the case of MARIAM TUMBO VS HAROLD TUMBO (1983) TLR & H/C 293 which quote the holding with approval of the case of KHANUKHAN 1973 LRT No. 57, the court held:- "The discretion on the court by para (f) of section 101 should only be sparingly exercise and them only in circumstances where it is clear beyond any reasonable doubt that a reference to the Board is not a practical proposition. This may be due to the fact that the circumstance of the case are such that no expectation can be entertained that the Board will be able to achieve any useful results and that any reference to it will be so much waste of time and effort. It is impossible to predicate the circumstance which will make a reference to the Board impracticable. Where it is so, the Legislative would have given an exhaustive list of exceptions" Though I don't agree with the District Court that the letter from "BARAZA LA MTAA" suffice to the certificate from the Marriage Reconciliation Board, but still the 1st ground of appeal fails as the court ought to disregard the requirement of referring the matrimonial dispute to the Marriage Reconciliation Board and to have a certification of the Board that it has failed to reconcile the parties prior to filing of petition of divorce as provided by section 101 (f) of the Law of Marriage Act Cap 29. 11 Turning to the second ground of appeal that the District Court erred in law for agreing with the Primary Court that Jesca and Jacline (issues of the marriage) should be in the custody of respondent as they were below the age of seven years without making an order that the same should be in the custody of the Appellant after attaining the age of seven years. If I did catch well the lower courts erred in placing the custody of children to the respondent undefinity. The court ought to limit the custody until the children attain the age of seven as the court disregarded the custom of the parties who are Chagga and their custom is partrilineal and the financial capacity of the respondent. Respondent argued that the lower court was correct according to the law. This ground should not much retain us. His opinion that the appellant went too far for nothing. The issue of custody of children is governed by section 125 of the Law of Marriage Act Cap 29 R. E 2002. And the lower court didn't travel out of that provision. As it was argued by respondent that the District Court considered the issue at page 4 of its judgment the children of the matrimonial problem and respondent is willing to stay with them the court found it would not be reasonable to change custody. I totally agree with the District Court also after considering that one of the problems which contributed to the matrimonial problem was the discrimination of the female children who are now in issue and 12 that appellants and his son used to beat them. Under such circumstance is it to the best interest to place the children under the custody of appellant or is it to the worst interest obvious it for the worst interest of the children. The issue as to the court were not supposed to issue custody to respondent indefenity it should have limited the custody under respondent to seven years that is not the law and the appellant misdirected himself on that point and misconstrue the law. The law regarding under whose custody the children should be placed is not absolutely. The law have left a room for change at any time depending on change of the circumstances which affects the best interest of the child as provided by section 133 of the Law of Marriage Act Cap 29 R. E 2002 which reads:- "The court may at any time and from time to time vary or may rescind any order for the custody or maintenance of an infant on application of any interested person, where it is satisfied that the order was based on misrepresentation or mistake of fact or where there has been any 13 '' .' . t ' material change in the circumstance. Therefore not only appellant but any other interested person could apply to the court to change the order of custody. Also Section 134 of the same law allow the court to vary even the terms of the custody of agreement of an infant. Therefore the second ground of appeal has not merits and it is also hereby dismissed. For the above reasons this appeal do not have merits and it is hereby dismissed with costs. F.H. Massengi JUDGE 20/12/2010 th Delivered in chamber court this 20 December, 2010 in absences of appellant and in present of respondent in person 14 F.H. Massengi JUDGE 20/12/2010 Right of appeal fully explained. F.H. Massengi JUDGE 20/12/2010 15