RULING Jane Constantine Kalolo vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 20171 OF 2024 (Arising from the District Court of Songea in Martimonial Appeal No. 17 of 2018, Originating from Matrimonial Cause No. 29 of 2018 from Mfaranyaki Primary Court) JANE CONSTANTINE KALOLO......…….…...………….………………….. APPLICANT

VERSUS MICHAEL KUTIKA ……………………………………………...………….. RESPONDENT

RULING Date of Last Order: 3rd October, 2024. Date of Ruling: 10th October, 2024. KAWISHE, J.: The applicant, Jane Constantine Kalolo has moved this Court by way of chamber summons made under section 25 (1) (b) of the Magistrates Courts Act (Cap 11 R.E 2019), seeking for extension of time within which she can file an appeal out of time before this Court to challenge the decision of the District Court of Songea (the first appellate court) in Matrimonial Appeal No. 17 of 2018. The application is supported by an 1 affidavit sworn by the applicant setting out the reasons for the delay and for the enlargement of time. From the affidavit deponed by the applicant, the reasons for the delay in filing her appeal are mainly two, which are: (1) That, she was encountered with economic hardship in pursuing her appeal. (2) That, the impugned decision is tainted with illegality. On the first reason, the applicant deponed that, she was the only caretaker of the matrimonial issues who are schooling at different levels of education. That she was to pay school fees and other expenses. For the second reason, she has averred that, the matter was wrongly referred to the trial court by the Marriage Conciliation Board. The application is contested by the respondent through his sworn counter affidavit which was filed before this court. The parties agreed and prayed to dispose the application by way

of written submission. The court granted the prayer, the parties observed the submission order. The applicant was represented by Mr. Raphael Matola, learned advocate while, the respondent benefited from the assistance of the Legal Aid and Development Promotion Organization (LADO). 2 In his submission in support of the application, the applicant’s learned advocate argued that, after issuance of the decree for divorce, all the issues were left to be taken care of by the applicant. Hence, it made her to suffer from economic constrains or hardship. As a result, she was unable to get money to hire an advocate to file an appeal before this court timely. On the second issue of illegality, the learned counsel argued that, the trial court had no jurisdiction to entertain the matter on the ground that, section 101 of the Law of Marriage Act (Cap 29, R.E 2019), requires that, all matrimonial disputes to be referred to Marriage Conciliation Board before instituting a matrimonial dispute. However, in the matter at hand, the records are silent as to whether the matter was referred to the Board prior to its filing in court. To bolster his stance, he cited the decision of the Court of Appeal in the case of George Sayi Nzuzulima vs. Claudia Paul Leo, Civil Appeal No. 464 of 2021 (TanzLII). Basing on the decision in the case cited, he insisted that the certificate from the Marriage

Conciliation Board is important before the institution of any matrimonial cause. That failure to issue it renders the whole proceedings and judgment nullity. 3 Mr. Matola submitted further that, the applicant was the one who filed the matrimonial cause before the trial court without referring the same to the Marriage Conciliation Board and the court admitted it despite of its illegality. He contended that, the trial court was duty bound to assist the applicant by advising her to refer the matter to the Marriage Conciliation Board and not to proceed with the hearing and determination of the same. Lastly, he submitted that, illegality is among the reasons which give this court a discretionary power to grant for a leave to file an appeal out of time despite the length of delay as it was stated by the Court of Appeal in Ally Salum Said (Administrator of the estate of the late Antar Said Kleb) vs. Iddi Athmani Ndaki, Civil Application No. 450 of 2021 (TanzLII). Hence, he prayed for this application to be allowed. In his reply submission, the respondent contested the fact that the applicant was the only caretaker of their issues. He prayed for the documentary evidence attached in his counter affidavit to be adopted to prove that he was also taking care of their issues by paying school fees. Countering the claim on the jurisdiction of the trial in adjudicating the matter without

certificate from the Marriage Conciliation Board, the respondent argued that, the matter was referred to the Mjimwema 4 Conciliation Board where the Board failed to reconcile the parties. He averred that the failure was occasioned by the applicant’s use of abusive language and the Board’s records were sent to the trial court to prove the same. The respondent added that, before the amendment of the Law of Marriage Act (supra) in 2019 which was followed by Government Notice No. 487 of 2022, there was no requirement of issuing a certificate in a special format and any document issued by the Board was enough to prove that the matter was referred to the Board. It was the respondent’s contention that, there was no any illegality to make the proceedings and decision of the trial court to be nullity. He contended that, in using its discretionary powers invested by the law, courts are duty bound to ensure that, the aim is to enforce the end of justice and not otherwise. He also insisted that, for an application of this nature to be granted there must be a good cause as it was stated by the Court of Appeal in Juma Shomari vs. Kabwere Mambo, Civil Application No. 330 of 2020 (TanzLII). He added that, the criteria for granting application for extension of time were given in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian

Association of Tanzania, Civil Application 5 No. 2 of 2010 (TanzLII). Lastly, he prayed for this application to be dismissed for the reason that, there is no good cause to enable this court to grant for extension of time to file an appeal to challenge the decision which was delivered almost six years ago. In his rejoinder submission, the applicant’s advocate contested the respondent’s contention that, he has been paying the school fees. His reason that the documentary exhibits which were referred to by the respondent bears no name of the respondent as the depositor of the school fees. That the same bear the name of another person. He prayed for the respondent’s allegation that he has been taking care of the children be ignored. Rejoining on the second reason of illegality, the applicant’s advocate submitted that, there is no dispute that the matter was referred before Mjimwema Marriage Conciliation Board but what is in dispute is the Board’s failure to issue a certificate. He argued further that the law under regulation 9(2) of the Marriage Conciliation Boards (Procedure) Regulation, GN. No. 240 of 1971 requires a certificate to be issued and not to present the proceedings of the Board before the trial court. He contended that, the 6 act the Board presenting the whole proceedings before the trial court was in itself illegal to warrant this application to be allowed. Mr. Matola

submitted further that, the respondent’s allegation that the Board failed to reconcile the parties following the applicant’s insulting words alone does not suffice to cause the conciliation to fail. He insisted that, what was required was for the Board to issue a certificate. He contended that, such circumstance is not an exception given under section 101 (f) of the Law of Marriage Act (supra), that it was impracticable for the Board to issue a certificate. He insisted for the application to be allowed for the applicant to file her appeal out of time. Having gone through the affidavit, the counter affidavit and keenly followed the submissions made by the parties in this application, I find the main issue which needs to be determined by this Court is whether the applicant has advanced good and sufficient cause to enable this Court to exercise its discretionary powers to extend time within which she can lodge an appeal out of time. Before I submerge myself in discussing on the merit or otherwise of the above raised issue, I will start by stating the brief historical background which led to this application. It goes back to 2018 when the applicant filed 7 Matrimonial Cause No. 29 of 2018 before Mfaranyaki Primary Court in which a decree of divorce was granted and the court issued other ancillary orders such as division of matrimonial properties, custody and maintenance of

children. Dissatisfied with the order for division of matrimonial properties, the applicant unsuccessful appeal before the first appellate court. On 19th August, 2024, after the expiry of almost six years the applicant filed the application at hand requesting for extension of time, so that she can file an appeal to challenge the decision of the first appellate court. It is worth to note that, in our jurisdiction, courts have discretionary powers to grant an application for extension of time within which to file an appeal out of time. However, the discretionary powers given to the courts must be exercised judiciously and not frivolously. See the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania (supra) and Ngao Godwin Losera vs. Julious Mwarabu, Civil Application No. 10 of 2015. The established principle of this Court and the Court of Appeal which is the Apex Court in our jurisdiction is that, for applications of this nature to succeed the applicant has to give good and 8 sufficient cause for the delay to enable the Court to invoke its discretionary powers. There is a plethora of case law on this matter which include but not limited to the case of Robert Madololyo vs. Republic, Criminal Appeal No. 486 of 2015 [2018] TZCA 346 [14 February 2018; TanzLII], where the Court of Appeal, quoted with approval

the decision of the Supreme Court of Appeal of South Africa in Uitenhage Transitional Local Council vs. South African Revenue Service, 2004 (1) SA 292 (SCA) which cautioned that, condonation for delay, the applicant must furnish a detailed and accurate explanation of the causes of the delay to enable the Court to understand the situation and assess the responsibility. Also, in the case of Republic vs. Yona Kaponda & 9 Others (1985) T. L. R 84, it was held that: ‘In deciding whether or not to allow an application to appeal out of time, the Court has to consider whether there are sufficient reasons not only for the delay but also sufficient reasons for extending time during which to entertain the appeal.’ While guided by the principle above, in the present application, the first reason advanced by the applicant for the delay in filing her appeal on time is economic constraints or hardship. Her reason being that, she has been taking care of the matrimonial issues and he had no money to hire an advocate to file his appeal on time. Such fact has been disputed by the 9 respondent. From the competing arguments made by both parties, it is important to be underscored that in exceptional circumstances, the court may accept economic hardship as a good cause for extension of time. This principle was accentuated in the case of Hamisi Mponda vs. Nico Insurance Tanzania Limited & 2 Others,

Civil Application No. 254/01 of 2021 (20th August, 2023 TanzLII, Court of Appeal of Tanzania). Also, in the case of Constantine Victor John vs. Muhimbili National Hospital, Civil Application No. 214/18 of 2020, the Court of Appeal stated that: ‘… financial constraints may not be a sufficient ground for extension of time, however, … there are exceptional circumstances when it can be sufficient.’ Therefore, from the above cited cases, it is clear that, economic hardship is used as a ground for extension of time but under exceptional circumstances. In the circumstance of the application at hand, I find the applicant’s assertion that she encountered with economic constraint as she used her income in paying school fees and she failed to get money to hire an advocate is baseless. I am saying so because she has not revealed the secret of success that she underwent to be able at this time to engage the advocate. However, filing any appeal before this court needs no advocate. 10 She would have filed her appeal even without hiring an advocate. Also, I have gone through the lower court’s records and find that, the trial court ordered the matrimonial issues to be placed under the custody and maintenance of the respondent. That makes the applicant’s assertion that she used her income in maintaining her children not believable. Thus, there is no exceptional circumstance to enable this court

to grant the extension of time on the reason that the applicant encountered with economic hardship. The first reason is dismissed. On the second reason that, there is illegality in the impugned decision. This Court and the Court of Appeal in several decisions has stated that, illegality is among the reasons which can be used by the Court in exercising its discretionary power in granting extension of time. It was so held in a number of cases to mention a few, see the case of the Principal Secretary, Ministry of Defence and National Service vs. Devram Valambhia (1992) T.L.R 182, VIP Engineering and Marketing Limited and Three Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, Court of Appeal of Tanzania at Dar es Salaam (unreported) and Hassan Sariko vs. Shakira 11 Hashim, Misc. Civil Application No. 11 of 2023, High Court of Tanzania at Temeke (unreported). However, it is a settled legal principle that, where a point on illegality is pleaded it must be apparently shown on the face of the record to suffice for an extension of time. See the decision in Hamisi Mohamed (as the Administrator of the Estates of the late Risasi Ngawe) vs. Mtumwa Moshi (as the Administratrix of the Estates of the late Moshi Abdallah), Civil Application No. 407/17 of 2019, Court of Appeal at Dar es Salaam (unreported). In the application at hand, it is the

applicant’s assertion that, there was no certificate issued by the Marriage Conciliation Board to confer jurisdiction to the trial court to entertain the matter referred before it. The respondent has countered those facts stating that, the matter was referred before Mjimwema Conciliation Board and the Board failed to reconcile the parties due to the applicant’s conduct of insulting the Chairman of the Board. Thereafter, the records were sent before the trial court and the suit was filed. The issue which is lingering is whether the matter was referred before the Board as required by section 101 (1) of the Law of Marriage Act (supra). From what has been submitted by the parties, this court decided 12 to peruse through the original records and found nothing in respect of the Marriage Conciliation Board. Section 101 (1) of the Law of Marriage Act (supra) reads as follows: ‘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:’ The submissions made by both parties leaves no doubt that the matter was referred to Mjimwema Marriage Conciliation Board prior to instituting the suit at the trial court. Nevertheless, the trial court’s proceedings and judgment do not show that the matter was referred before any Marriage Conciliation Board as required by

the section cited above. Therefore, I fully abide to the decision made in George Sayi Nzuzulima vs. Claudia Paul Leo (supra), where the Court of Appeal stated that, failure to obtain a certificate from the Marriage Conciliation Board is among the illegality. See also the decision of this court in Shillo Mzee vs. Fatuma Ahmed (1984) T.L.R 112. Consequently, from the foregoing, I find the second reason advanced by applicant has merit. While warning myself not to venture into the merits of the alleged illegality, I am satisfied that the alleged illegality suffices for 13 the granting of an extension of time. I accordingly grant the application. The applicant is given fourteen days from the date of this ruling to lodge her appeal before this court. It is so ordered. DATED and DELIVERED at SONGEA this 10th day of October, 2024. E. L. KAWISHE

JUDGE COURT: Ruling delivered in the presence of Mr. Lazaro Simba, learned counsel for the applicant and in the presence of the applicant and the respondent in person. E. L. KAWISHE

JUDGE 10/10/2024 14