KWANDU MAYOMBO V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA PC. CIVIL APPEAL NO. 71 OF 2023 (Arising from Matrimonial Appeal No. 3 of 2023, Itilima District Court; Originating from Matrimonial Cause No. 5 of 2023 Luguru Primary Court) KWANDU D/O MAYOMBO ……………..…………...……. APPELLANT VERSUS MATONDO S/O KIBUGULU.......................................RESPONDENT RULING 15th April & 2nd May, 2024 S. M. KULITA, J. Before hearing this matter, Advocate for the Appellant, Mr. Audax Constatine raised a concern on the competence of the lower courts’ proceedings. Among them was the fact that, the Certificate for the Marriage Conciliation Board purported to have been issued by the Social Welfare Officer, Itilima District Council on the 20th day of March, 2023, was not tendered to court as exhibit, however, the trial Magistrate relied on it in deciding the matter. 1 The Counsel said that the said document which is mandatory for the institution of the Matrimonial suit was just attached in the Petitioner’s (Appellant herein) pleading without the same being tendered to court and admitted as exhibit. He said that, such document ought not to have been considered as exhibit before the court. Impliedly, the case at the trial court was entertained without a Certificate from the Marriage Conciliation Board, which is un-procedural. He said that, that collides with section 101 of the Law of Marriage Act [Cap 29 RE 2019]. On the other hand, the Respondent had no objection on the said submission. She left the matter for this court to decide. Upon going through the trial Court’s record, I have actually noticed the said fault, that the said document, Certificate from the Marriage Conciliation Board issued by the Social Welfare Officer for Itilima District Council on the 20th day of March, 2023, which is seen to have been annexed in the Petitioner’s (Respondent’s) pleading/petition was not tendered to court as exhibit. However, the trial Magistrate relied on it in deciding the matter. That was wrong. In analyzing evidence adduced before him the Magistrate ought not to rely on such exhibit which was not tendered to court as exhibit, even if the same is annexed in the pleadings. 2 That being the case, under section 44(1)(b) of the Magistrate Courts Act [Cap 11 RE 2019] which empowers this court to conduct Revision suo motto for the matters before it, when necessary, I hereby do it. Upon going through the records, I can see the necessity of doing so, particularly on the existence of material errors, including the one stipulated hereinabove, which is vivid in the lower courts’ records. Arguing the issue of the mandatory requirement of the parties to refer their matrimonial dispute to the Marriage Conciliation Board before filing a petition for divorce in the court, in the case of PATRICK WILLIAM MAGUBO V. LILIAN PETER KITALI, Civil Appeal No. 41 of 2019, CAT at Mwanza, at page 13, the Court of Appeal held; “The issue of parties' referring their matrimonial dispute to the Marriage Conciliation Board before filing a petition for divorce in the court, is a mandatory requirement of the law. Therefore, that document was required to be tendered and admitted in evidence. It is trite law that annexures are not evidence for the court of law to act and rely upon” 3 Dictating the same issue through that said case, while citing the case of Sabry Hafidhi Khalfan v. Zanzibar Telecom Ltd (Zantel) Zanzibar, Civil Appeal No. 47 of 2009 (unreported), the Court of Appeal said; “We wish to point out that annexures attached along with either the plaint or written statement of defense are not evidence. Probably It is worth mentioning at this juncture to say the purpose of annexing documents in the pleadings. The whole purpose of annexing documents either to the plaint or the written statement of defense is to enable the other party to 13 the suit to know the case he is going to face. The idea behind is to do away with surprises. But annexures are not evidence." [Emphasis added]. Likewise, even in this case, what was contained or annexed to the petition could not have been treated as evidence, as Mr. Audax would correctly like this court to believe. According to section 101 of the Law of Marriage Act [Cap 29 RE 2019], the marriage dispute should first be referred to the Marriage 4 Conciliation Board. If the board fails to reconcile it, it has to issue a certificate to declare that position and ask the court to try the matter. The said 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” As narrated herein before that, the said document was mandatory to be tendered to court and admitted as exhibit, for the trial court to satisfy itself that the Board had tried to reconcile the matter unsuccessfully. The fact that the said document was not tendered to court as exhibit, such document ought not to have been considered as exhibit by the trial court. Be it noted that the trial court is the one which has mandate to receive the exhibits, thus the 1st Appellate court was required to remit back the matter to the trial court, particularly for retrial, so that the said procedure could be complied with. Otherwise, the case at the trial court is regarded to have been entertained without the presence of the Certificate of Marriage Conciliation Board, which is fatal. As narrated herein before that, it is contrary to section 101 of the Law of Marriage Act. 5 That fatality alone, which is undisputed by the Appellant, is sufficient to find the appeal meritorious. Consequently, I hereby nullify and quash the whole proceedings, their resultant judgment, orders and decree of the District Court. I do the same for those of Primary court, save for the proceedings recorded before 4th April, 2023, the date that hearing had started at the said trial Court. Consequently, I hereby order re-trial for the matter at the Luguru Primary Court from the hearing stage which started on 4th April, 2023. If the Appellant still wishes to pursue this matter, she can go back to the trial Primary Court within 30 (thirty) days period from the date of delivery of this ruling for the said re-trial. In upshot the appeal is partly allowed. This being a family matter and the fault has been caused by the trial court, I grant no order as to costs. S.M. KULITA JUDGE 02/05/2024 6 7