20200703 TZHC Dar es Salaam

., IN THE HIGH COURT OF TANZANIA I (DAR ES SALAAM REGISTRY REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 114 OF 2017 {Arising from the Judgment llala District Court in Matrimonial Cause No. 31 of 2015 dated 24th February, 2017 before Hon. MJAYA, RM) VERSUS MWAJUMA NASSORO Administratrix of the estate of the late ASHA SHABAN ......................... RESPONDENT JUDGMENT 16th June & 03 rd July, 2020. E. E. KAKOLAKI l This is the first appeal arising from the decision of Ilala District Court in Matrimonial Cause No. 31 of 2015 which to a large part was entered in favour of the respondent who is now the deceased as she met her demise in 2018. The appellant and respondent in 2004 contracted marriage under Islamic rites and were blessed with no issues. They enjoyed their marriage for unspecified time until when misunderstandings and ill treatment allegedly ensued as a result the respondent was chased from matrimonial home by the appellant. 1 '. Several reconciliation sessions were allegedly conducted between the couple before the Marriage Reconciliation Board issued the respondent with a certificate to forward the matter to court on the 13/04/2015. It is from that certificate the respondent lodged with Ilala District Court a petition Matrimonial Cause No. 31 of 2015 seeking for divorce decree and orders of equal division of jointly acquired matrimonial properties/assets. In her petition she also attached original Certificate of Marriage Reconciliation Board. The trial court proceeded to hear and determine the petition and in the ended issued the divorce decree to the respondent and proceeded to divide the matrimonial properties. It was ordered that the house at Gongo la mboto (Biafra) jointly acquired be divided between the parties in the following order, 70% of the house value to the respondent and 30% to the appellant. Two acres plot of land at Kisanga Kisarawe to be divided in the following order, ½ acres to the respondent and 1½ acres to the appellant. It is from that decision the appellant is discontented hence the present appeal canvassed with three grounds of appeal. These are: 1. That the Hon. District Court erred in law and fact by making a finding that the Respondent had a lawful marriage with the Appellant. 2. That the Hon. District Court erred in law and fact in making a finding that the listed properties were jointly acquired during the subsistence of the marriage. 3. That the Hon. District Court erred in law and fact in making an order of the division without properly considering the extent of the contribution, if any. 2 As stated above the respondent in this matter passed away on 13/05/2018 and one Mwajuma Nassoro was appointed administratrix of her estates. The administratrix applied in court to be joined in the proceedings of this appeal and the court on 15/04/2020 granted her prayer, ordering the memorandum of appeal to be amended to incorporate her name as legal representative of the respondent. When the appeal was called on for hearing before me on 23/04/2020 the appellant was represented by Mr Juma Nassoro learned advocate whereas the respondent legal representative appeared unrepresented. Both parties agreed to have the appeal disposed by way of written submission. However on the 03/06/2020 when the case came for mention with a view of fixing a judgment date it was revealed that the respondent was not served with the submission in chief by the appellant the fact which moved the court to amend the filing order of the submission. All parties abided to the amended schedule. As I was perusing the record to compose the judgment I noted that there was something missing which was affecting the jurisdiction of the trial court and therefore the competence of the appeal before this court. A certificate of marriage conciliation board which is a mandatory requirement of the law for institution and determination of a divorce petition under the provision of 101 of the Law of Marriage Act, [Cap. 29 R.E 2020] was not tendered and admitted in court during hearing of the petition. Having so noted the issue is whether there is a competent appeal before this court after the trial court had proceeded with determination of the petition in violation of the mandatory provision of section 101 of the Law of Marriage Act. To determine this issue court 3 was forced to defer the judgment writing exercise and summon parties to address the court first on the issue. On the 03/07/2020 the date set for judgment parties appeared before the court and were invited by the court to address it on whether the certificate of Marriage Reconciliation Board was tendered and admitted in court or not. And if not what are the consequences? Addressing on those questions Mr. Nassoro for the appellant told the court that in filing the petition the respondent annexed the certificate of marriage reconciliation board as annexure "A" but when testifying before the court on 13/07/2016 she never tendered it as exhibit. Since the certificate is one of the requirement for the trial court to acquire jurisdiction to try any matrimonial petition none tendering of the same in the trial court renders the entire proceedings a nullity. He therefore prayed the said proceedings to be quashed and the decision and orders thereof be set aside. He cited to court the cases of Ally Sandaly Vs. Asha Ally, Civil Appeal No. 246 of 2019 {CAT-unreported) and Shilo Mzee Vs. Fatuma Ahmed (1984) TLR 112. On the respondent side the legal representative of the respondent being a lay person had nothing substantive to tell the court apart from saying she knows nothing as she was absence when the case was tried and is not sure whether the said certificate was tenders or not. She left the matter for the court to decide. I agree with Mr. Nassoro that the requirement for certificate of marriage reconciliation board is a question of jurisdiction. It behoves the petitioner to prove to the court satisfaction that the matrimonial dispute passed through marriage reconciliation board before filing the petition. 4 In the matter at hand the respondent attached the original certificate of marriage reconciliatory board in her petition exhibiting what entitled her to file the petition. However in order to prove_ that the petition was competent it was expected of her to tender the said certificate in court as exhibit to satisfy the court that the provisions of section 101 of the Law of Marriage Act were complied with. The section provides: S. 101. 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 - - - - - - - - - --reeaneile-t-he-patties1--------- - - - - - - - - --------- Provided that this requirement shall not apply in any case- (a) where the petitioner alleges that he or she has been deserted by, and does not know the whereabouts ot his or her spouse; (b) where the respondent is residing outside Tanzania and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date of the petition; ( c) where the respondent has been required to appear before the Board and has wilfully failed to attend; ( d) where the respondent is imprisoned for life or for a term of at least five years or is detained under the Preventive Detention Act and has been so detained for a period exceeding six months; 5 (e) where the petitioner alleges that the respondent is suffering from an incurable mental illness; (f) where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable. In this appeal the trial court tried and determined the petition without satisfying itself of compliance of the above cited provision. No exceptions were raised by the respondent as provided under the proviso of section 101 of the Law of Marriage Act, to entitle the court to proceed with hearing of the petition without a certificate of Marriage Reconciliatory Board. Presumably the trial magistrate assumed that the certificate was there as it was attached to the petition and therefore the trial was competently conducted. It is trite law that no any court can make a decision relying on a document not tendered and admitted in court as exhibit. This position of the law finds it base in the Court of Appeal decision in Mohamed A. Issa Vs. John Machela, Civil Appeal No. 55 of 2013 (Unreported) when discussing the consequences of courts relying on the documents not tendered and admitted in court by referring to its decision in the case of Shemsa and Two Others Vs. Seleman Hamed Abdalla, Civil Appeal No. 82 of 2012 (unreported) where it had the following to say: ''At this juncture, we think our main task is to examine whether it was proper for the trial court and other subsequent courts in appeals to rely upon, in their judgments, the said document which was not tendered and admitted in court . We out-rightly are of considered opinion 6 that, it was improper and substantial error for the High Court and all other courts below in this case to have relied ·on a document which was neither tendered nor admitted in court as exhibit. We hold that this led to grave miscarriage ofjustice" ( emphasis supplied) The court went on to hold that: 'We think we need to overemphasize what we take to be trite- law --- - -- that- the --- -- - judgment of the Court or quasi-judicial tribunal must be grounded on evidence properly adduced during the trial, otherwise it is not a decision at all. The purported decision becomes a nullity. Therefore, the appellate Tribunal and/or High Court on appeal could not uphold what was a nullity from the beginning. " As stated in the case of Shemsa and Two Others (supra) for the court to rely on the document in its decision the said document must have . first been tendered and admitted in court as exhibit. My perusal of the trial court record has revealed that the respondent never tendered in court as exhibit the alleged certificate of marriage conciliation board apart from annexing it to the petition. Since the same was not tendered there was nothing to confer jurisdiction to the trial court in compliance of the provision of section 101 of the Law of Marriage Act. I would therefore hold as I hereby do that the petition before the trial was premature and incompetent and the decision entered by the court is a nullity. 7 Having so found I am forced to invoke the revisionary powers of this .. - _- . -Court-provided .under-section-44(1)(b).-of-the -Magistrates--Court!s-Act,- - [Cap. 11 R.E 2009] and proceed to quash the proceedings of the trial . court and set aside the judgment and orders thereto. As_ the appeal is predicated on a null decision . already quashed there is no competent appeal to be entertained by this court. The appeal is therefore struck of the being incompetent. The Respondent (petitioner) or her legal representative is a liberty to refile a fresh petition if she so wishes. I order no costs to any party. It is so ordered. DATED at DAR ES SALAAM this 03 rd da of July, 2020. ~ - - - . ~. ~__...,.,--._ f; I - ....., E.E. JUDGE 03/07/2020 Delivered at Dar es Salaar:n this 3rd day of JuiV:-2"020 in the presence of Mr. Juma Nassoro advocate for the applicant, Mwajuma Nassoro administratrix of the estates of the respondent and Ms. Lulu Masasi, court clerk. 8