juster tanzlii

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT DODOMA PC. CIVIL APPEAL NO. 17304 OF 2024 (Arising from Civil Appeal No. 21 of2021 in the District Court of Dodoma; originating from Matrimonial Cause No, 109 of2023 in Dodoma Urban Primary Court) JUSTER DIONIZ LEORNAD............................................. APPELLANT

VERSUS PAUL SIMON KAWAMALA.......................................... RESPONDENT

RULING 2nd September & 30h October, 2024 MUSOKWA, J, Before the Primary Court of Dodoma Urban (trial court), in the region of Dodoma, the appellant herein, was the petitioner in Matrimonial Cause No. 109 of 2023. The appellant sought court orders for the dissolution of her marriage to the respondent; including custodial orders of the issues of the marriage, and division of matrimonial properties. Subsequently, the trial court held that the marriage had broken down irreparably and the decree of divorce was issued. Dissatisfied with the custodial orders; including orders as to the division of the matrimonial properties, the respondent filed Civil Appeal No. 21 of 2024 before the District Court of Dodoma whereby the appeal was partly allowed. 1 Aggrieved by the decision thereof, the appellant has approached this court with the instant appeal whose grounds I shall not reproduce as the court raised an issue suo mottu; to which parties were called upon to address before proceeding with the hearing of the appeal on merits. This court directed parties to address it on whether or not the requirement for parties to appear before the Marriage Conciliation Board (the Board) prior to the institution of the matter in the trial court was duly complied with in accordance with the law. In addressing the issue raised by the court suo mottu, the appellant was represented by Mr. Tumsifu Mvela

learned counsel. The appellant's counsel submitted that as per the records of the trial court, the Form No. 3 which is a certificate of the Board was not tendered in court as an Exhibit. Accordingly, this is contrary to section 101 of the Law of Marriage Act, Cap. 29, R.E. 2019 (LMA). Submitting further, Mr. Mvela stated that the aforementioned anomaly, further raises doubt as to the existence of the said Form No.

3. To cement this point, the appellant's counsel preferred the case of Patrick William Magubo vs Lilian Peter Kitali, Civil Appeal No. 41 of 2019 (unreported). 2 In the circumstances thereof, Mr. Mvela prayed that the proceedings of the trial court and the District Court, including the corresponding orders thereof be quashed and set aside. The respondent enjoyed the legal services of Mr. Ditrick Mwesigwa, learned advocate. At the onset, the respondent's counsel prayed that the hearing of the instant appeal on merits should proceed. Submitting in support of this position, Mr. Ditrick Mwesigwa asserted that; the issue as to whether or not the requirement of appearing before the Board was complied with, is not a contentious matter between the parties. Thus, parties are in agreement that they duly appeared before the Board. Further that, the registration process of any matrimonial cause before a trial court, is dependent on compliance with this requirement. Therefore, the trial court was satisfied that the procedure had been duly complied with before registering the dispute. Proceeding further, Mr. Mwesigwa referred to section 106 (2) of the LMA, which requires the petition of a matrimonial case to be annexed with the certificate issued by the Board. The respondent's counsel argued that the provision does not require the certificate to be tendered as an exhibit during the trial.

The cases of Jummanne Maulid Silayo vs Yves Bokolo 3 Mmbando, Civil Appeal No. 31 of 2022, (unreported); and Jeni Mushi vs. Hillary Kimaro, PC. Civil Appeal No. 3 of 2023, (unreported) were cited. The respondent's counsel further beseeched the court to consider the overriding objective principle which places emphasis on adjudicators to promote and facilitate access to justice, as opposed to strict adherence to technicalities. In addressing the issue for determination before this court; on whether the requirement to appear before the Board was duly complied with in accordance with the purposes of the law, the provision of section 101 of the LMA is reproduced for reference as follows: - 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 reconcile the parties..."[emphasis added] In the case of Patrick William Magubo (supra) the Court of Appeal of Tanzania (CAT) held that: - "By the use of the word 'shall', the above provision implies that, compliance with section 101 above is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. This requirement is further 4 reinforced by section 106 (2) of the same Act, which states in mandatory terms that: "Every

petition for a decree of divorce shall be accompanied by a certificate by a Board, issued not more than six months before the filing of the petition..."[emphasis added] I have carefully perused the court records, and found that the certificate was issued by the Board on 24th October 2023; and the petition was filed before the trial court on 7th November 2023 which is within six months provided by the law. Further, on page 8 of the typed trial court proceedings it is recorded as follows: - "...ndipo niiienda kwenye baraza ia usuiuhishi a/iitwa na akasema, aseme kwenye hiyo heia ya matumizi niongezee ngapi wa/ivyoona hatueiewani ndo baraza wakanipa Fomu Na. 3 niiite huku na pale kwenye baraza aiisema kweii nimeoa na akasema hajaniacha amenitenga tu na kuanzia mwezi wa saba hata tendo ia ndoa ienyewe sipati na ndipo nikaona nije nijieieze huku kuwa mume wangu ana mke, nina cheti cha ndoa, cheti cha Watoto cha kuzaliwa na hati ya mauziano ya zuzu pia ninayo pamoja na barua ya baraza la usuiuhishi vyote niko navyo na namomba Mahakama ivipokee kuwa sehemu ya ushahidi wangu... "[emphasis added] The records indicate that there was no objection from the opposite party at the trial court. The trial court marked the Exhibits as Ml (Marriage certificate), M2 (Summons issued by the Marriage reconciliation Board which is attached with Form No.3); and M3 being the Sale Agreement. 5 Since the

court records indicate Exhibit M2 include Form No.3 being the certificate issued by the reconciliation Board; it follows therefore that the parties attended before the Board for reconciliation and that it was certified that the Board failed to reconcile the parties. In addition, the appellant successfully prayed to tender "barua ya baraza la usu/ub/sbl" among other Exhibits, and the same formed part of the trial court records. In that regard, the submissions of the appellant's counsel that as per the records of the trial court, the Form No. 3 which is a certificate of the Board was not tendered in court as an Exhibit is, with due respect, not correct. Similarly, Mr. Mvela's doubt as to the existence of the said Form No. 3 is unsubstantiated because, as stated earlier, Form No.3 is part of the Exhibit marked as M2 and formed part of the trial court records. In conclusion, the issue raised suo mottu on whether or not the requirement for parties to appear before the Marriage Conciliation Board prior to the institution of the matter in the trial court, is answered in the affirmative. In addition, the non-reconciliation certificate (Form No. 3) was tendered, admitted and marked as Exhibit M2. Therefore, the main appeal will be determined on merits on date to be notified. No order for costs because the issue was raised by this court suo mottu. 6 It is so ordered. DATED at DODOMA this 30th day of October, 2024. I.D. MUSOKWA

JUDGE Ruling delivered in the presence of the appellant and his counsel, Mr. Tumsifu Mvela; and in the presence of the respondent's counsel, Mr. Ditrick Mwesigwa. -/•I.D. MUSOKWA // JUDGE 7